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https://www.courtlistener.com/api/rest/v3/opinions/2736024/ | Sep 23 2014, 10:25 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT, K.W.: ATTORNEYS FOR APPELLEE:
DAVID W. STONE GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
ATTORNEY FOR APPELLANT, B.S.: ROBERT J. HENKE
CHRISTINE REDELMAN
JOHN T. WILSON Deputy Attorney General
Anderson, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE )
TERMINATION OF THE PARENT- )
CHILD RELATIONSHIP OF A.S. AND )
C.S. (Minor children); )
)
K.W. (Mother) and B.S. (Father), )
)
Appellants-Defendants, )
)
vs. ) No. 48A02-1310-JT-913
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable G. George Pancol, Judge
The Honorable Jack Brinkman, Senior Judge
Cause Nos. 48C02-1301-JT-2 and 48C02-1301-JT-3
September 23, 2014
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
B.S. (“Father”) and K.W. (“Mother”) (collectively, “the parents”) appeal the trial
court’s termination of their parental rights to their minor children, A.S. and C.S.
(collectively, “the children”). The parents argue that there was not sufficient evidence to
support the termination because some of the trial court’s findings of fact were erroneous,
and because the trial court’s findings of fact did not support its conclusions. We
conclude that three of the trial court’s findings of fact were erroneous; nevertheless, even
without these erroneous findings, the Department of Child Services (“DCS”) presented
sufficient evidence to support the termination of the parents’ parental rights.
We affirm.
ISSUE
Whether DCS produced sufficient evidence to support the termination of
the parents’ parental rights to the children.
FACTS
The parents have two minor children together, A.S. and C.S. A.S. was born in
May of 2009, and C.S. was born in July of 2010. Mother also had a daughter, M.R., who
was the half-sister of the children, and a son, A.W., who is their half-brother.1
In late February of 2011, the parents and the children were forced to move in with
Mother’s aunt as a result of a house fire. Three weeks later, on March 12, 2011, three-
year-old M.R. took her great aunt’s prescription medication out of her purse and
1
The parents’ parental rights to A.W. are not at issue in this appeal.
2
swallowed it. Mother noticed that M.R.’s behavior became abnormal and suspected that
M.R. had gotten into the medication, but she did not seek medical treatment. Eventually,
Father took M.R. to the emergency room, but she went into cardiac arrest and passed
away. Following M.R.’s death, DCS conducted an investigation and substantiated death
due to neglect and medical neglect against Mother because Mother had suspected that
M.R. had gotten into her great aunt’s medication and did not seek medical treatment.
On March 14, 2011, an unidentified person contacted DCS with information that
Mother and Father were staying in a hotel with their children and were planning to flee
the state. Family Case Manager Russell Beatty visited the family at their hotel and
determined that they were not attempting to flee the state; they merely did not want to
stay in the aunt’s house after the death of their daughter. However, during his visit,
Mother and Father admitted that they frequently used marijuana, and Father admitted that
he sometimes took some of Mother’s prescription hydrocodone to treat tooth pain. As a
result, DCS tested them for illegal drugs, and they both tested positive for marijuana. In
addition, neither Mother nor Father were sure where they would be living in the future.
Due to concerns over the circumstances of M.R.’s death, Mother and Father’s drug
use, and their uncertain future housing, DCS removed one-year old A.S. and eight-
month-old C.S. from the parents and placed them in foster care. Citing the same reasons,
DCS filed petitions on March 15, 2011, alleging that both children were children in need
of services (“CHINS”). The parents admitted to the allegations, and the trial court
adjudicated the children as CHINS on June 15, 2011.
3
Subsequently, on September 29, 2011, the trial court issued a dispositional order.
It ordered the parents to, among other requirements, participate in supervised visitation
with the children; maintain appropriate housing and an adequate income; complete
substance abuse evaluations, psychological evaluations, and parenting assessments and
follow any resulting recommendations; submit to random drug screens; and participate in
individual counseling and follow any resulting recommendations.
Initially, the parents were compliant with their court-ordered services. They each
completed two substance abuse evaluations—in November 2011 and March 2012. The
evaluator for the November 2011 substance abuse evaluations concluded that substance
abuse was not a concern for either parent.2 However, on May 1, 2012, Father tested
positive for hydrocodone, which he said that he took to treat sore teeth because he could
not afford the dental work that he needed. Mother had a prescription for hydrocodone,
but she also occasionally tested positive for levels higher than her prescribed amount.
Other than their drug use, the parents made progress on the remainder of their
court-ordered services. They completed psychological evaluations on November 16,
2011 and parenting assessments on March 20, 2012. As a result of their psychological
evaluations, the service providers recommended that both parents complete individual
therapy. The results of their parenting assessments were positive, and on November 18,
2011, the parents completed the Homebuilder’s program, which is a program designed to
improve parenting. They also consistently visited the children throughout the CHINS
proceedings.
2
The parents’ March evaluations are not a part of the record.
4
As a result of the parents’ substantial compliance with their court-ordered services,
DCS placed the children on a trial home visit with the parents starting on September 21,
2012. The visit ended early on November 7, 2012, because Mother tested positive for
amphetamines and cocaine. DCS next placed the children on a trial home visit with only
Father on December 3, 2012. This second trial visit ended after three days because
Father tested positive for cocaine.3
Subsequently, on January 7, 2013, DCS filed petitions to terminate the parents’
parental rights to both of the children. DCS also referred the parents to continue their
services. Father began group therapy at the Crestview Center (“Crestview”), but he only
attended one or two of those meetings and met with his group’s therapist once
individually. Father then requested a referral for treatment at Aspire, a community
mental health center. He completed the substance abuse evaluation at Aspire and
attended group therapy there twice a week for a month. However, he did not attend the
other eight weeks of the group therapy program, and Aspire discharged him for non-
attendance. Father never contacted the family case manager about continuing treatment
elsewhere.
In terms of individual counseling, Father met with a therapist, Phil Taggart
(“Taggart”), from June or July of 2012 until the termination proceedings in August 2013.
Father consistently attended meetings with Taggart except for a one-month period when
he was too depressed to meet. He also could not meet with Taggart during the month
3
Mother also tested positive for cocaine the same day. Father was still positive for cocaine on December
10, 2012. In total, they each tested positive for illegal drugs three times throughout the CHINS and
termination proceedings. Father tested positive on May 1, 2012; December 4, 2012; and December 10,
2012. Mother tested positive on October 31, 2012; November 5, 2012; and December 4, 2012.
5
prior to the termination hearing because he was incarcerated for failing to attend a child
support hearing for another child.
Although DCS referred Mother to Crestview, she never sought treatment there.
She completed a substance abuse evaluation and mental health assessment at Aspire in
March of 2013. However, Aspire discharged her from the program because she did not
follow up on the evaluation. Mother subsequently requested and received another
referral for Aspire in May of 2013. That month, she completed a second evaluation and
assessment and participated in both group and individual therapy. In total, however, she
attended only four meetings. She completed a session the day before the termination
hearing but had not otherwise attended a meeting in the previous three or four weeks. A
therapist at Aspire scheduled two individual sessions with Mother, but she did not show
up for either session.
In terms of individual counseling, Mother also met with Father’s therapist,
Taggart, for six to eight sessions but then told him that she wanted a different therapist.
After DCS assigned her a new therapist, she stopped attending therapy. She later testified
that she stopped because she had given up hope of getting her children back. She also
testified that she was afraid counseling was not enough and that she needed in-patient
treatment or she might harm herself or someone else. She was worried, though, that if
she sought in-patient treatment, DCS would use it against her as a reason to terminate her
parental rights.
Starting in August 2012, Mother and Father participated in home case
management with Jennifer Landis (“Landis”), a family consultant, but Landis eventually
6
had to close the parents’ case management for non-compliance. There were times when
Landis would arrive at the parents’ home for a scheduled visit, and no one would answer
the door. On some of these occasions, she would later find out that the parents had still
been asleep. By the end of May or June of 2013, Landis required the parents to call her
before 9 a.m. on the day of each appointment if they did not want her to consider the visit
a no-show. When Landis eventually closed the parents’ case, neither of them requested
to start case management again.
During this time, Landis also supervised the parents’ visitation with the children.
The parents consistently attended visitation, but they were late—sometimes by as much
as thirty minutes or an hour—so many times that Landis had to put a fifteen-minute time
limit on the amount of time she would wait for them before canceling. Landis observed
that the children seemed “very anxious” if the parents were late. (Tr. 149-50). She had
to stop telling the children that the parents were going to visit so that they would not be
disappointed if she had to cancel the visitation. The parents did not become timelier once
she instituted the fifteen-minute limit.
Throughout the CHINS and termination proceedings, the parents’ employment
was inconsistent. Mother was unemployed from the time when DCS filed the termination
petition in January 2013 until the termination hearing in August 2013. She enrolled in
school during part of that year but stopped attending because she was under too much
stress. A week prior to the termination hearing, she worked at a maid service for a day
but then quit because of back pain. At the time of the hearing, Mother was unemployed
but testified that she planned to find a job.
7
Father was self-employed for the year and a half leading up to the termination
hearing. He performed services such as working on cars, landscaping, and roofing.
However, a month prior to the termination hearing, he was incarcerated for thirty days for
failing to attend a child support hearing for another one of his children. He owed around
$1,200 in child support for that child. After his incarceration, Father planned to work at a
metal factory where he believed there was a good possibility he could get a job because
the hiring manager had offered to help him.
In terms of housing, the parents had multiple residences throughout their case. At
the time of the termination hearing, Father was incarcerated but planned to move into his
father’s house upon his release. Mother was living in her mother’s two-bedroom house,
although she planned on looking for different housing within a month.
During the CHINS and termination proceedings, the children were placed in four
different foster homes and with two different relatives. Landis noted that the children
demonstrated some behaviors that she thought were concerning. Specifically, C.S.
appeared to have some confusion concerning who her real mother was, and A.S. had been
having a lot of tantrums in the six months prior to the termination hearing. He also
sometimes cried and yelled in order to get what he wanted. At the time of the termination
hearing, the children were in a pre-adoptive placement with their aunt, who planned to
adopt them if the parents’ rights were terminated.4
On August 6, 2013, the trial court held an evidentiary hearing on the termination
petitions. At the hearing, the family’s DCS family case manager testified that she
4
This aunt is a different aunt than the one whose medication M.R. swallowed.
8
believed termination was in the children’s best interests because they had been removed
from the parents’ home for over two years, and because the parents had not completed
their services during that time. She also stated that she believed the children needed
permanency in their lives. The children’s CASA testified that she originally believed the
children should be reunited with the parents but had changed her mind because the
parents had lived in at least three different homes; she could never reach them; and they
were still unemployed and struggling with substance abuse. Taggart testified that
continuing “in limbo . . . [was not] fair to the children” and that he “would like to see
some stability.” (Tr. 120-21). Similarly, Landis testified that “[the] children need[ed]
permanency. They need a permanent home and they need it now.” (Tr. 151). Finally,
the children’s therapist testified that she believed a permanent home would help then
four-year-old A.S. begin to regulate his behavior.
On October 4, 2013, the trial court issued its findings of fact and conclusions
thereon in which it terminated the parents’ parental rights. It concluded that there was a
reasonable probability that the conditions that resulted in the children’s removal from the
parents would not be remedied because the parents had not completed any services since
their trial home visit and did not have adequate housing or employment. Further, the trial
court concluded that the continuation of the parent-child relationship would pose a threat
to the well-being of the children and that termination was in their best interests. Finally,
the trial court concluded that DCS had a satisfactory plan of adoption for the children.
The parents now appeal. We will provide additional facts as necessary.
9
DECISION
On appeal, the parents argue that the trial court did not prove the following
conditions for termination by clear and convincing evidence: (1) that there was a
reasonable probability that the conditions that resulted in the children’s removal from the
parents’ home would not be remedied; (2) that there was a reasonable probability that the
continuation of the parent-child relationship would pose a threat to the children; (3) that
termination was in the children’s best interests; and (4) that DCS had a satisfactory plan
for the care and treatment of the children.5 The parents argue that the evidence does not
support all of the trial court’s findings of fact and that the trial court’s findings of fact do
not support its conclusions thereon. We will address the evidence and findings of fact
supporting each conclusion in turn.
The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment to the United States Constitution. Bester v. Lake
Cnty. Office of Family and Children, 839 N.E.2d 143, 147 (Ind. 2005). A parent’s
interest in the care, custody, and control of his or her children is “perhaps the oldest of
the fundamental liberty interests.” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65
(2000)). Accordingly, the involuntary termination of parental rights is the most extreme
measure that a court can impose and is designated only as a last resort when all other
reasonable efforts have failed. In re N.Q., 996 N.E.2d 385, 391 (Ind. Ct. App. 2013).
However, parental rights are not absolute and must be subordinated to the children’s
5
Mother also argues that DCS used improper discovery methods. Because she also acknowledges that
she waived the argument by failing to object, we need not address that issue. We must also note that
Mother and Father submitted separate briefs on appeal. We are combining their arguments, though, for
purposes of this decision.
10
interests. Id. Thus, the law provides for the termination of those rights when parents are
unable or unwilling to meet their parental responsibilities. Id.
Before terminating a parent’s parental rights, the State is required to allege and
prove the following by clear and convincing evidence:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for
placement outside the home of the parents will not be
remedied;
(ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the
well-being of the child.
* * *
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the
child.
INDIANA CODE § 31-35-2-4(b)(2). If the trial court finds that the State’s allegations in its
petition to terminate parental rights are true, the court must enter written findings of fact
supporting conclusions. I.C. § 31-35-2-8(c).
When, as here, a judgment contains specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. In re A.S., 905 N.E.2d 47, 49 (Ind. Ct.
App. 2009). First, we determine whether the evidence supports the findings, and then we
determine whether the findings support the judgment. Id. In doing so, we do not reweigh
the evidence or judge witness credibility. Id. We consider only the evidence and
reasonable inferences that are most favorable to the judgment. Id. If the evidence and
11
inferences support the trial court’s decision, we must affirm. In re J.S., 906 N.E.2d 226,
231 (Ind. Ct. App. 2009). We will set aside a judgment only when it is clearly erroneous.
In re A.S., 905 N.E.2d at 49. A judgment is clearly erroneous when the findings do not
support the trial court’s conclusions or the conclusions do not support the judgment. Id.
1. Findings of Fact
Because the judgment underlying the termination of the parents’ parental rights
contains specific findings of fact and conclusions thereon, we must first determine
whether the evidence supports the findings. See id. If the record contains no evidence to
support the findings either indirectly or by inference, the findings are clearly erroneous.
In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App. 2002). Mother challenges the following
findings of fact:
13. It took the parents nearly a year before they initiated the services they
were court[-]ordered to participate in.
* * *
29. At the time of this hearing, neither parent has appropriate housing.
* * *
39. On the last meeting, Mother indicated a desire to hurt herself, and that
she was going to self-report to a mental health facility. 6
(Mother’s Br. 26-28). Her arguments against these findings are that: less than a year
passed before they initiated services; she had appropriate housing because she testified
6
Father does not specifically dispute any of the trial court’s findings. Instead, he argues that the findings
do not support the conclusions thereon. In addition to the above findings, Mother also disputes finding
number 26, which stated “[the p]arents have had many different residences since the onset of this case.”
(Mother’s Br. 27) (quoting App. 26). However, we will address this finding later, because Mother’s
argument concerns whether the finding may support the trial court’s conclusions of law. She does not
dispute the evidence supporting the finding.
12
that she was living in her mother’s house, and DCS never proved that this housing was
inappropriate; and she never stated she was going to self-report to a mental health
facility. We agree with Mother that the record does not contain evidence to support the
above findings.
First, with respect to finding number thirteen, the parents completed some court-
ordered services shortly after being ordered to do so. The trial court entered its
dispositional decree ordering services on September 29, 2011. By November 16, 2011,
both parents had completed substance abuse evaluations, and by the following March
they had completed additional substance abuse evaluations. They also completed the
Homebuilders parenting program on November 18, 2011. Less than a year after the trial
court entered its dispositional decree, the parents were allowed a trial home visit because
they were compliant with their services. Accordingly, the evidence shows that the
parents did not take a year to begin their court-ordered services, contrary to the trial
court’s finding.
With respect to finding number twenty-nine, Mother testified that she was living
with her mother in her mother’s two-bedroom house at the time of the hearing. DCS did
not present any evidence indicating that this housing was inappropriate. To the contrary,
we have previously noted that living with extended family in the house can provide a
child with a “safety net.” Tipton v. Marion Cnty. Dep’t of Public Welfare, 629 N.E.2d
1262, 1268 (Ind. Ct. App. 1994). The evidence therefore does not support the trial
court’s finding. Notably, we also find it significant that although the trial court’s finding
was technically accurate in Father’s case as he was incarcerated at the time of the
13
hearing, he was scheduled to be released within three days and testified that he planned to
live in his father’s house after his release. Father had lived in his father’s house at
another point during the CHINS and termination proceedings, and Landis noted that
when he lived there, she “didn’t [see] any housing needs.” (Tr. 157). We interpret this
testimony as evidence that Landis considered Father’s father’s house appropriate for the
children.
Finally, with respect to finding number thirty-nine, it is not clear what the trial
court meant by “[o]n the last meeting.” (Mother’s Br. 28). However, Mother testified at
the termination hearing that, even though she thought that she needed inpatient treatment,
she did not intend to self-report to a mental health facility because she was worried that
DCS would use that as a reason to keep her children from her. Accordingly, we agree
with Mother that she never told the trial court she intended to self-report.7
2. Conclusions of Law
Having found that three of the trial court’s findings of fact were clearly erroneous,
we must now determine whether there were nevertheless sufficient findings of fact to
support the trial court’s conclusions thereon. Mother and Father argue that there was not
sufficient evidence to prove several of the conditions necessary to terminate their parental
rights—(1) that there was a reasonable probability that the conditions that resulted in the
children’s removal from the parents’ home would not be remedied; (2) that there was a
reasonable probability that the continuation of the parent-child relationship would pose a
7
The trial court noted Mother’s failure to report in finding number forty, which states “Mother never
reported.” (Mother’s Br. 28).
14
threat to the children; (3) that termination was in the children’s best interests; and (4) that
DCS had a satisfactory plan for the care and treatment of the children.
As stated above, DCS must prove “each and every element” of the termination
statute by clear and convincing evidence. In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009),
reh’g denied. As a standard of proof, clear and convincing evidence requires the
existence of a fact to “‘be highly probable.’” In re D.W., 969 N.E.2d 89, 94 (Ind. Ct.
App. 2012) (quoting Hardy v. Hardy, 910 N.E.2d 851, 859 (Ind. Ct. App. 2009)). “It
need not reveal that ‘the continued custody of the parent[] is wholly inadequate for the
children’s very survival.’” Id. (quoting Egly v. Blackford Cnty. Dep’t of Pub. Welfare,
592 N.E.2d 1232, 1233 (Ind. 1992)). Rather, it is sufficient to show that the children’s
emotional and physical development are threatened by the parent’s custody. Id.
A. Conditions Remedied
When determining whether the conditions that led to a child’s removal will not be
remedied, the trial court must judge a parent’s fitness to care for his or her child at the
time of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).
However, the trial court must also evaluate the parent’s habitual patterns of conduct to
determine the probability of future neglect or deprivation of the child. Id.
Mother argues that the trial court’s findings do not support its conclusion that the
conditions that led to the removal of the children would not be remedied. Specifically,
she notes that the conditions that led to the children’s removal were: (1) M.R.’s death
from ingesting prescription medication; (2) the parents’ lack of suitable housing; and (3)
the parents’ drug use. She claims that there were no findings indicating that access to
15
prescription medication is still an issue, because the parents obtained a small, locked safe
to hold their prescription medication. She also notes that, as we have found, the trial
court’s finding stating that the parents do not have adequate housing was an error; and
there is no evidence that the parents have engaged in habitual, ongoing drug use.
Father also disputes the trial court’s conclusion that the conditions that led to the
removal of the children would not be remedied. He claims that he will have proper
housing when he is released from incarceration, has his own handyman business, and has
an additional potential offer of employment. He also argues that, even though he did
occasionally test positive for drugs, he did not have a positive drug screen for the eight
months prior to the termination hearing. In addition, he contends that although he did not
complete services during the termination proceedings, he participated in a substantial
number of services. As evidence of his potential, he notes that his counselor, Taggart,
testified that he would give Father another chance if it were his decision. Similarly,
many of the service providers testified that the parents had good parenting skills.
Although it is apparent from the record that the parents love their children, have
parenting skills, and have made some progress in their services, we cannot find that the
trial court’s conclusion was clearly erroneous. The trial court must evaluate a parent’s
fitness at the time of the termination hearing, and at the time of the parents’ termination
hearing, they had failed to complete any services after the children were removed from
their home as a result of drug use during the trial home visit. While Mother remedied
two of the conditions that led to the children’s removal, there was no evidence that she
would remedy her substance abuse. To the contrary, her substance abuse worsened when
16
DCS returned her children for the trial home visit. After that point, she failed to complete
any substance abuse treatment. Aspire required Mother to complete two substance abuse
evaluations because she did not follow up with Aspire after her first. Then, after her
second evaluation, she attended only four meetings of group and individual therapy in the
months before the termination hearing. At the hearing, Taggart testified that he
considered the chances “pretty slim” that Mother would seek treatment. (Tr. 133).
As for Father, although he did not abuse drugs in the eight months preceding the
termination proceedings, he also failed to complete his substance abuse treatment, and he
turned to drug abuse when the children were placed with him for the trial home visits.
Even though he attended a month of treatment at Aspire, he failed to attend the last eight
weeks of his program, which caused Aspire to discharge him for non-attendance. After
that point, he never contacted the family case manager about continuing treatment
elsewhere.
In light of the parents’ failures to complete treatment for their substance abuse, we
agree with the trial court’s conclusion that there was a reasonable probability that the
conditions that led to the children’s removal would not be remedied. Because the
requirements of INDIANA CODE § 31-35-2-4(b)(2)(B) are written in the disjunctive, DCS
only needed to prove one of the three elements under subparagraph (B). Therefore, we
need not also address the trial court’s conclusion that the continuation of the parents’
relationship with the children would pose a threat to their well-being. B.H. v. Ind. Dep’t
of Child Servs., 989 N.E.2d 355, 364 (Ind. Ct. App. 2013) (noting that subparagraph (B)
is written in the disjunctive).
17
B. Best Interests
Next, we must address whether the termination of the parents’ parental rights was
in the children’s best interests. In determining the best interests of a child, the trial court
is required to look beyond the factors identified by DCS and to consider the totality of the
evidence. In re J.S., 906 N.E.2d at 236. In doing so, “the trial court must subordinate the
interests of the parent to those of the child.” In re J.C., 994 N.E.2d 278, 290 (Ind. Ct.
App. 2013), reh’g denied. The court need not wait until a child is irreversibly harmed
before terminating the parent-child relationship. Id. Recommendations of the case
manager and court-appointed advocate, in addition to evidence that the conditions
resulting in removal will not be remedied, are sufficient to show by clear and convincing
evidence that termination is in the child’s best interests. Id.
Both parents argue on appeal that the only evidence DCS presented that
termination was in the children’s best interests was that the children needed stability and
permanency. The parents cite to our previous opinion in Rowlette v. Vanderburg Cnty.
Office of Family and Children, 841 N.E.2d 615 (Ind. Ct. App. 2006), trans. denied,
where we held that permanency, in and of itself, is not a valid basis for terminating the
relationship between the natural parents and their children. Mother also notes that
assessments of their parenting skills have consistently had positive results and that they
have never missed a visit with the children. She cites several progress reports stating that
she made significant progress in complying with her services. She claims that the
termination order focuses on her past failures without addressing the progress she has
made.
18
While we agree with the parents that a need for permanency, alone, is not a
sufficient basis for terminating parental rights, it was not the only basis here. Mother
argues that the trial court judged her on her past failures, but the opposite is actually true.
All of the progress reports Mother mentions were written before the children’s trial home
visit. It is undisputed that at that point in the CHINS proceedings, the parents were
sufficiently complying with the trial court’s dispositional order. It was after the trial
home visit that the parents discontinued, and failed to complete, their services. Since the
trial home visit, the parents have failed to demonstrate that they will remedy the
conditions that led to the children’s removal—their substance abuse. Moreover, the
seriousness of their substance abuse has increased over time. Initially, the parents tested
positive for marijuana and abused prescription drugs. Then, during their trial home visit,
the parents tested positive for amphetamines and cocaine.
While a need for permanency alone is not sufficient to support termination,
multiple service providers—including the family’s DCS family case manager, the
children’s CASA, Taggart, Landis, and the children’s therapist—testified that termination
was in the children’s best interests. In addition to permanency, the family case manager
noted that the children had been removed from the parents’ home for over two years, and
the parents still had not completed their services. The CASA also found it determinative
that the parents still struggled with substance abuse. Because we have previously held
that recommendations of the case manager and court-appointed advocate, in addition to
evidence that the conditions resulting in removal will not be remedied, are sufficient to
show by clear and convincing evidence that termination of parental rights is in a child’s
19
best interests, we must conclude here that the trial court did not err in its determination.
See In re J.C., 994 N.E.2d at 290.
C. DCS’s Plan for the Children
Finally, Mother argues that DCS did not have a satisfactory plan for the children’s
care and treatment. DCS’s plan for the children was for their aunt, T.E. (“Aunt”), and her
husband to adopt them. Mother argues that this plan is unsatisfactory because Aunt did
not want anything to do with the children unless the parents’ parental rights were
terminated. Mother also notes that DCS terminated Aunt’s visitation with the children
because she violated a condition of her visitation by discussing the case, the parents, and
M.R.’s death with them. Father also disputes the adoption plan, claiming that it is
unsatisfactory because there is no guarantee that the adoption will take place or that the
children will stay together.
In In re J.C., 994 N.E.2d at 290, the mother argued that DCS’s plan for the care
and treatment of her children following the termination of her rights was not satisfactory
because DCS planned for the paternal grandmother, who had allowed the children to visit
the father in prison, to adopt the children. On appeal, we upheld the trial court’s finding
that the plan was satisfactory based on the reasoning that the termination statute does not
require the trial court to find that DCS’s plan is in the child’s best interests. See id.
Instead, Indiana courts have traditionally held that for a plan to be “‘satisfactory,’”
for the purposes of the termination statute, it “‘need not be detailed, so long as it offers a
general sense of the direction in which the child will be going after the parent-child
relationship is terminated.’” Lang v. Starke Cnty. Office of Family and Children, 861
20
N.E.2d 366, 375 (Ind. Ct. App. 2007), trans. denied. A DCS plan is satisfactory if the
plan is to attempt to find suitable parents to adopt the children. Id. In other words, there
need not be a guarantee that a suitable adoption will take place, only that DCS will
attempt to find a suitable adoptive parent. See id. Accordingly, a plan is not
unsatisfactory if DCS has not identified a specific family to adopt the children. Id. Part
of the reason for this is that it is within the authority of the adoption court, not the
termination court, to determine whether an adoptive placement is appropriate. See In re
D.J., 755 N.E.2d 679, 685 (Ind. Ct. App. 2001), trans. denied. In In re D.J., we noted, in
response to a mother’s concerns about a foster family’s adoption of her children
following the termination of her rights, that “[I]f the foster family desires to adopt the
children, the home will have to be approved as an appropriate and suitable environment
for the children.” Id.
Based on these standards, we conclude that it was satisfactory here that DCS’s
plan for the children was adoption. We need not address whether Aunt is a suitable
adoptive parent, because that is within the jurisdiction of the adoption court. See In re
M.B., 921 N.E.2d 494 (Ind. 2009). Likewise, in response to Father’s argument, we have
previously held that a plan is satisfactory, even if the plan is for the children to have
separate adoptive homes. A.J. v. Marion Cnty. Office of Family and Children, 881
N.E.2d 706, 719 (Ind. Ct. App. 2008), trans. denied. Accordingly, we conclude that the
trial court did not err in determining that DCS’s plan for the children’s care and treatment
was satisfactory.
21
Affirmed.
FRIEDLANDER, J., and MATHIAS, J., concur.
22 | 01-03-2023 | 09-23-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3995622/ | This is an attempted appeal from an order denying a motion for a reconsideration of a judgment denying a petition to modify a decree of divorce, in so far as the custody of the child of the parties is concerned. The petition to thus modify the decree was denied, and a formal judgment or order to that effect was signed and entered on June 26, 1926. Thereafter, a motion to reconsider the judgment denying the petition was served and filed and thereafter, as it is recited in the order,
". . . the matter coming on regularly to be heard in open court on this 10th day of July, 1926, upon defendant's motion to have a reconsideration of the order made and entered on the 26th day of June, 1926, and permit a rehearing thereon,"
an order was signed and entered on November 10, 1926, denying it. It is from this last order the appeal is taken — the notice of appeal stating that
"The defendant in the above entitled action hereby appeals to the supreme court of the state of Washington *Page 651
from the judgment herein entered in the above entitled cause in the above entitled court on the 10th day of November, 1926."
The notice of appeal was served and filed on November 17, 1926.
[1] The respondent has moved to dismiss the appeal. It was too late in November to appeal from the final judgment entered on June 26. The notice that was given refers to the order entered on November 10, 1926. That order was not appealable. The final order of June 26, 1926, was entered on the same day the matter was heard. The so-called motion to reconsider was neither more nor less than a motion for a new trial. An order denying a motion for a new trial after final judgment has been entered is not appealable. Carlson v. Vashon Nav. Co., 102 Wash. 75,172 P. 860; Lefever v. Blattner, 57 Wash. 637, 107 P. 835; SoundInv. Co. v. Fairhaven Land Co., 45 Wash. 262, 88 P. 198.
Appeal dismissed.
MACKINTOSH, C.J., MAIN, FRENCH, and FULLERTON, JJ., concur. *Page 652 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4001295/ | This case is an aftermath of the decision of this court inState ex rel. Schirmer v. Superior Court, 143 Wash. 578,255 P. 960.
This action was brought by respondent to recover damages from appellant, an attorney at law, for breach of duty in permitting respondent to act as a witness to a will in which respondent was named as a beneficiary. Respondent alleged that he employed appellant as an attorney to prepare the will for the grandmother *Page 174
of respondent. The nature of the will, its witnessing, and the effect thereof on respondent as a legatee, who had been intended by the testatrix to receive one-half of the residue of her estate, and of an attempted codicil to that will are clearly stated in the former decision.
In his complaint herein, respondent alleged that, on February 28, 1926, for a valuable consideration then paid to appellant, he employed appellant as an attorney for the purpose of drawing the last will and testament of Karolina Waigel, grandmother of respondent; that the will was prepared in accordance with the instructions given by Karolina Waigel and respondent; that appellant carelessly and negligently failed and neglected to exercise diligence in permitting respondent, named as a beneficiary in the will, to act as a witness thereto and, as a result of such witnessing signature, respondent lost the entire value of the money and property he would have received had appellant had another than respondent witness the execution of the will. Respondent alleged the value of the one-half residuary share of the estate of the testatrix, which he would have received had he not been rendered ineligible to inherit the same under the will, was of the value of $15,000.
A demurrer interposed to the complaint on statutory grounds was overruled, and appellant answered. In his answer, after denials, he set up six affirmative defenses: (1) That the action was barred by Rem. Comp. Stat., § 165, not having been brought within two years after the date the alleged cause of action accrued; (2) that appellant was a private and personal attorney for Karolina Waigel, and had no contractual relation with respondent, and owed no duty to him; (3) that Karolina Waigel and respondent each was advised that respondent could not and would not take *Page 175
thereunder the bequest therein provided for him; (4) that respondent and appellant, prior to the commencement of this action, settled all matters and things alleged in the complaint; (5) that respondent was a student of law in appellant's office, and had been instructed that a subscribing witness to a will could not, under the law, partake of any benefits if named as a beneficiary in the will; that respondent was advised by reason of his being executor of the estate of Karolina Waigel, deceased, that the whole of the estate was appraised and was of the value of not over $13,600, from which should be deducted expenses of administration, funeral expenses, expenses of last illness and special bequests therein provided; that respondent knew, before the death of Karolina Waigel, that she had, in effect, repudiated him and intended that he should not share in her estate, beyond being remunerated for acting as administrator thereof, because of previous advances made by her to him during her lifetime, and refused to make further advances to him; (6) that, during the time mentioned in his complaint and for some time prior thereto, respondent acted as agent and employee of Karolina Waigel in handling business transactions, and any acts and things done and performed by respondent in connection with the preparation and execution of her will were so done and performed by him as her agent aforesaid; that respondent also acted for and on behalf of the deceased, handled funds for her, paid to appellant herein from time to time moneys for and on behalf of Karolina Waigel, and was her sole agent in reference to such business transactions.
Respondent replied to the affirmative allegations, denying the first, second and third; denying the fourth as to any release and settlement, and further alleging, affirmatively, that any pretended release or settlement *Page 176
obtained by appellant from respondent had been obtained fraudulently by deceit and misrepresentation practiced by appellant upon respondent; the fifth affirmative defense was admitted to the extent of admitting that respondent entered into a contract with appellant to undertake the study of law under appellant, and also admitted that the appraised valuation of the estate of Karolina Waigel was approximately $13,600, and denied every other allegation therein contained; the sixth affirmative defense was denied, except that respondent admitted that he assisted Karolina Waigel in certain business matters, and reaffirmed that respondent, himself, had personally employed appellant as an attorney to prepare and have properly executed the last will and testament of Karolina Waigel, which appellant did cause to be prepared and executed, and for which work and services respondent himself paid to appellant the sum of $10.
After the jury was impaneled and the opening statement made by counsel for respondent, appellant moved that no evidence be received on behalf of respondent, for the reason that his complaint did not state a cause of action, in that no more than a mere expectancy in the estate of the deceased was shown to exist, the value of which had not been ascertained. The motion was denied. At the close of respondent's case, appellant again moved for a directed verdict in his favor, which motion was denied.
Appellant submitted two special interrogatories to be submitted to the jury by the trial court as follows:
"Was the plaintiff acting as the agent of Karolina Waigel?"
"Was the defendant acting as attorney for Karolina Waigel?"
The submission of these interrogatories was denied by the trial court, to which appellant excepted. *Page 177
After a verdict and judgment, appellant moved for a judgmentnon obstante or for a new trial, submitting affidavits in support thereof. Counter affidavits contradicting the allegations made in the affidavits of appellant were filed by respondent. The motion for judgment non obstante and for a new trial were both denied.
At the trial, evidence was introduced by respondent showing that the appraised value of $13,600, as alleged by appellant and admitted by respondent, was increased by independent evidence showing that some of the property had increased in value, and that certain property in Montana, which had been appraised at $1.00, had been converted into a security of the actual value of $3,267. There was thus a net increase in the appraised value of that item alone of $3,266. The total net estate proven by respondent was at least twice the amount of the verdict for $7,400.
Seventeen errors are assigned and urged by appellant.
[1] Respondent, in his brief, moves the court to strike that part of appellant's abstract headed "Evidence," comprising twelve pages of the abstract. There is some merit in this motion, and it has been necessary both for appellant and for this court to refer entirely to the 162-paged statement of facts for an understanding of the facts of the case. But the motion will not be granted, for the reason that it is made for the first time in the brief, when the cause has been submitted on appeal, and that is not the appropriate remedy.
The first error argued is the denial of appellant's motion for judgment on the pleadings.
[2] It is argued that the complaint is one for alleged neglect of duty, but that it is readily disclosed by the reading of the complaint that what respondent seeks to recover is an anticipated loss only, based upon *Page 178
the alleged employment by him of appellant to draw the will, the actual residuary value of the estate not having been finally determined. It is argued, also, that the complaint is defective because it does not allege the date of the death of Karolina Waigel, nor that the will pleaded was her last will and testament; nor the probate of her estate, nor sufficient facts upon which the value of her estate could be determined without speculation; nor the settlement and distribution of the estate, and contained only a mere conclusion as to the value of the property.
No authorities are cited to sustain this contention. It is the ordinary practice, however, where a party desires a complaint to be more definite and certain, or desires a bill of particulars, to make a motion to that effect. Appellant made no such motion in the court below.
Whatever the deficiencies in the complaint may have been, they were amply covered by proofs in the case, and the pleading is to be deemed to be amended to conform to the proof, in the absence of surprise and prejudice, under our unvarying practice.
[3] Appellant next urges that the court erred in overruling the demurrer upon three grounds:
(a) That the complaint did not state facts sufficient to constitute a cause of action.
In the absence of a motion to make more definite and certain, which was not made, the complaint was sufficient to lay the grounds of recovery of some substantial damage and, as aided by the proofs in the case, at any rate, for a recovery within the amount demanded.
[4] (b) That the question of the validity of the contract relied upon by respondent "in addition to undue influence," was raised by the demurrer.
The argument under this head seems to be that undue *Page 179
influence on the part of respondent was to be attributed to him in dictating the will of his grandmother, wherein he was named as beneficiary, which would be illegal and against public policy.
The cases cited by appellant upon illegal contracts are not applicable here.
We have had many cases where agreements to bequeath or devise personal and real property to a favored beneficiary have been upheld. There is nothing illegal or against public policy in such contracts. Neither can undue influence on the part of respondent over his grandmother be inferred because of the fact that she felt under obligation to respondent for his long years of assistance and attention to her, a crippled old lady, and desired to compensate him over and above her statutory heirs. He was not one of her statutory heirs who would take without a will. It was her desire to give him one-half of the residue of her estate remaining after the payment of other legacies, debts and expenses, and she attempted to do so. That attempt was thwarted only by the error of appellant in causing respondent to attest the will as a witness.
[5] (c) The next ground urged as error in overruling the demurrer is that the action was not commenced within the time limited by law.
Rem. Comp. Stat., § 165, is relied upon, which is to the effect that an action for relief not otherwise provided for, shall be commenced within two years after the cause of action shall have accrued.
In a very early case decided by this court, Isham v. Parker,3 Wash. 755, 29 P. 835, a malpractice suit against an attorney, it was held that such actions are based on breach of contract. The cause of action is founded on the breach of duty, not on the consequential damage, and the subsequent accrual or ascertainment *Page 180
of such damage gives no new cause of action. 37 C.J. 863.
It is a closed question in this state, for we have consistently held that such actions are based on breach of contract and controlled by the statute relating to the breach of a contractual relation, governed by the three-year statute of limitations. Cornell v. Edsen, 78 Wash. 662, 139 P. 602, 51 L.R.A. (N.S.) 279; Jones v. Gregory, 125 Wash. 46, 215 P. 63;Smith v. Berkey, 134 Wash. 348, 235 P. 793.
[6] The next error argued is in denying appellant's motion for a directed verdict after the evidence was in.
There is no merit in this contention, for the reason that, while there was a sharp conflict in the evidence of respondent and of appellant, there was abundant competent evidence on behalf of respondent to take the case to the jury. For the same reason there is no merit in appellant's alleged error in denying the motion for judgment non obstante.
[7] It is contended next that the court erred in permitting testimony over appellant's objection as to the value of the estate when it had not been settled.
No authorities are cited under this contention, either. It is established, however, that the will, under which respondent was to take, was to be, and was drafted as, a nonintervention will. It was so administered by respondent as executor in both Washington and in ancillary probate proceedings in Montana. Under such a will, it is well established that no final decree is necessary in the estate. Respondent furnished competent proof of the total value of the estate received by him as executor in both Washington and Montana, the total claims presented to the estate and paid or which were necessary to be paid, and the net value of the estate remaining. That net value remaining is the value, one-half of which would have been respondent's, had *Page 181
he been permitted to take under the will. Not being permitted to take under the will, under our statute and our decision in the former case, respondent is entitled to recover the value thereof from the person responsible for its loss through his negligent breach of trust.
[8] The next errors argued are in denying witnesses for appellant the right to testify to things said in the presence of appellant and Mrs. Waigel on a certain occasion at her house.
Appellant seems to assume that the rejection of such testimony on the part of the trial court was because of the provisions of Rem. 1927 Sup., § 1211, excluding testimony of a party where the adverse party sues as an executor, etc., as to transactions and statements made by the deceased person represented by such adverse party.
An examination of the record shows that appellant himself was permitted to testify very fully and repeatedly as to his conversations with Mrs. Waigel. When another witness for appellant was testifying, appellant asked him what happened on an afternoon when he and appellant were present with Mrs. Waigel and respondent had left his grandmother to attend to some business for her. The question was objected to as immaterial, incompetent and hearsay, and the objection was sustained. It certainly was not because of the statute referred to that the testimony was excluded, but merely because it did not appear to be material or competent and, apparently, called for hearsay statements. If there was anything material and competent in the evidence sought to be elicited, appellant should have made an offer of proof.Norman v. Hopper, 38 Wash. 415, 80 P. 551; Chlopeck v.Chlopeck, 47 Wash. 256, 91 P. 966; Hightower v. Union Savings Trust Co., 88 Wash. 179, 152 P. 1015, Ann. Cas. 1918A 489;Olive Co. v. Meek, 91 Wash. 169, 157 P. 460. *Page 182
We cannot see from this record that there was any competent and material testimony excluded in excluding answers to the questions referred to.
[9] The next contention of appellant is that the court erred in refusing to submit the special interrogatories. The matter of submitting, or not submitting, special interrogatories to a jury is a matter which we have always held is entirely within the discretion of the trial court. Child v. Hill, 155 Wash. 133,283 P. 1076, and cases cited therein.
[10] Errors are assigned on the refusal of two instructions requested by appellant.
The record discloses that the instructions requested by appellant were given, in substance, so far as material to the issues and correct in law, by the instructions of the trial court.
All of the issues in the case were very carefully and accurately submitted by the trial court to the jury under proper instructions. No exceptions were taken to any of the instructions given by the trial court.
[11] The last contentions of appellant are that the court erred in denying motion for judgment non obstante (previously determined herein) or, in the alternative, for a new trial.
In support of the motion for a new trial, the affidavits presented by appellant and by respondent contradicting them are brought here only in the transcript. The order of the trial judge overruling the motion for a judgment non obstante or for a new trial makes no reference to the affidavits considered. Under those circumstances, we cannot tell how many, or what other, affidavits may have been presented to the trial court in passing upon the motion. At all events, the affidavits of appellant were contradicted. We cannot presume that the trial court abused its discretion under those circumstances. *Page 183
[12] Under this error, also, appellant argues that counsel for respondent was guilty of misconduct in his closing argument of the case to the jury. This, also, is unavailing to appellant for the reason that no objections, and no motion of any kind, were then made for the correction of the alleged misconduct.
On a review of the whole record, we are convinced that the verdict and judgment were right.
Affirmed.
MITCHELL, C.J., FULLERTON, and FRENCH, JJ., concur.
MAIN, J., concurs in the result. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3874794/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] DECISION
Appellants Jean B. Vitali and Eddy Carvalho seek relief from a November 19, 2004 decision of the Central Falls Zoning Board of Review (hereinafter "Board"), denying their request for a dimensional variance. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.
FACTS AND TRAVEL
The property at issue in this matter is a vacant lot located at 23-27 Samoset Avenue, Central Falls, Rhode Island, (also known as Tax Assessor's Plat 2, Lot 101), which is owned by Appellant Vitali. The property is located in zone R-1. An R-1 zone is "intended for low density residential areas comprising single dwelling unit detached structures located on lots with a minimum land area of 5,000 sq. ft." Central Falls, R.I., Rev. Ordinances app. A (2004) (hereinafter "Ordinance") at § 101.1. Appellant Vitali's property has a land area of 4500 square feet.
Appellant Vitali entered into a conditional sales agreement for the property with Appellant Carvalho. Appellant Carvalho seeks to build a single family detached residence on the property which meets all of the dimensional requirements of the zoning ordinance except for the minimum land area requirement of 5,000 square feet. See Ordinance at § 401.
On October 8, 2004, Appellants applied for a dimensional variance pursuant to § 908.3(A) of the Ordinance. Ordinance at § 908.3(A). The Appellants requested relief on the grounds that they were suffering a hardship due to the unique characteristics of the property at issue, namely that the lot was undersized, and said hardship was preventing Appellants from realizing the full, beneficial use of the property. (Compl., Ex. A, 3.)
An advertised hearing took place on November 18, 2004. At the hearing, Frank Milos, Esq. represented Appellants. Mr. Milos called Appellant Carvalho and Mr. Coyle, a real estate expert, to testify on behalf of granting the variance. Once the meeting was open for public comments, several residents of the neighborhood where the property is located spoke both for and against granting the variance, though all voiced concerns about the density and parking issues of the neighborhood. In addition, Arthur Hanson, the Director of the Department of Planning and Economic Development for the City of Central Falls, spoke in favor of granting the variance. He stated that he believed the proposed residence would be a positive addition to the neighborhood, since single-family homes are generally well-maintained and this particular proposal addresses the density and parking problems in the areas. (Tr. at 65-67.) Todd Olbrych, the zoning officer for the City who reviewed the initial application for a variance, also spoke in favor of granting the variance, echoing the same comments as Mr. Hanson. (Tr. at 73-75.) A letter from City Councilman Jay Ledger urging that the variance be denied was read into the record. He noted that the neighborhood was "a condensed area which would be made worse by an additional house in a very small lot." (Tr. at 78.) Lastly, Mr. Cooney, counsel for the City of Central Falls, voiced concern about potential legal consequences of denying the variance, namely, that the Board would inversely condemn the property if it denied the variance, but he did not register a formal opinion either for or against granting the variance. The Board voted three to two to deny the application. Appellants filed this timely appeal on November 30, 2004.
STANDARD OF REVIEW
The Superior Court review of a zoning board decision is controlled by G.L. 1956 (1991 Reenactment) § 45-24-69(D), which provides:
"(D) The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions, or decisions which are:
(1) In violation of constitutional, statutory, or ordinance provisions;
(2) In excess of the authority granted to the zoning board of review by statute or ordinance;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
When reviewing a decision of a zoning board, a justice of the Superior Court may not substitute his or her judgment for that of the zoning board if he or she conscientiously finds that the board's decision was supported by substantial evidence. Apostolou v. Genovesi, 120 R.I. 501,507, 388 A.2d 821, 825 (1978). "Substantial evidence as used in this context means such relevant evidence that a reasonable mind might accept as adequate to support a conclusion and means an amount, more than a scintilla but less than a preponderance." Caswell v. George Sherman Sandand Gravel Co. Inc., 424 A.2d 646, 647 (R.I. 1981) (citing Apostolou,120 R.I. at 507, 388 A.2d 824-825). The reviewing court "examines the record below to determine whether competent evidence exists to support the tribunal's findings." New England Naturist Ass'n, Inc. v. George,648 A.2d 370, 371 (R.I. 1994) (citing Town of Narragansett v.International Association of Fire Fighters, AFL-CIO, Local 1589,119 R.I. 506, 380 A.2d 521 (1977)).
However, this Court's deferential standard of review is contingent upon the zoning board's providing adequate findings of facts to support its decision. Kaveny v. Town of Cumberland Zoning Board of Review, No. 2003-318-A., slip op. at 10 (R.I., filed June 13, 2005). Factual findings, which are not merely conclusory statements or a "recital of a litany," are necessary to conduct judicial review of the Board's decision. Von Bernuth v. Zoning Board of Review of New Shoreham,770 A.2d 396, 401 (R.I. 2001) (quoting Irish Partnership v. Rommel,518 A.2d 356, 358 (R.I. 1986)). If a zoning board does not provide factual findings, the court will not search the record to ascertain a basis for the board's decision or to decide for itself the proper outcome. Von Bernuth, 770 A.2d at 401. However, if a zoning board neglects its duty to provide factual findings and the record contains no evidence supporting the zoning board's decision, the court will reverse the zoning board's decision. Sciacca v. Caruso, 769 A.2d 578, 585 (R.I. 2001).
THE ZONING BOARD DECISION
The Appellants set forth six grounds for appeal in their complaint. (Compl. at 2.) However, Appellants neglect to address in their supporting memorandum the claims that the Board acted in excess of its authority and that Appellant's due process and equal protection rights were violated. "Simply stating an issue for appellate review, without a meaningful discussion thereof or legal briefing of the issues, does not assist the Court in focusing on the legal questions raised, and therefore constitutes a waiver of that issue." Kaveny, No. 2003-318-A., slip op. at 13 (quoting Wilkinson v. State Crime Laboratory Commission, 788 A.2d 1129,1131 n. 1 (R.I. 2002)). Therefore, this Court will consider only the grounds in the Complaint that were briefed by Appellants.
The Appellants assert that the Board's decision is not supported by the reliable, probative and substantial evidence on the whole record, and therefore, the decision to deny the dimensional variance is clearly erroneous and an abuse of discretion. In addition, Appellants argue that the factual findings of the Board are inadequate to support its decision. The Appellees contend that the Board's decision was based upon the substantial evidence in the record because Appellants failed to meet their burden of showing that the proposed residential dwelling would not contradict the purposes and goals of the city's Comprehensive Plan.
STANDARD FOR GRANTING A DIMENSIONAL VARIANCE
The standard for granting a dimensional variance is set forth in section 908.3 of the Ordinance.
"In granting a variance, the board shall require that evidence to the satisfaction of the following standards be entered into the record of the proceedings:
(1) that the hardship from which the applicant seeks relief is due to the unique characteristics of the subject land or structure and not to the general characteristics of the surrounding area; and not due to a physical or economic disability of the applicant;
(2) that said hardship is not the result of any prior action of the applicant and does not result primarily from the desire of the applicant to realize greater financial gain;
(3) that the granting of the requested variance will not alter the general characteristic of the surrounding area or impair the intent or purpose of this Zoning Ordinance or the Comprehensive Plan of the City.
(4) that the relief to be granted is the least relief necessary.
The Board shall, in addition to the above standards, require that evidence entered into the record of the proceedings showing that:
. . .
(2) in granting a dimensional variance, that the hardship that will be suffered by the owner of the subject property if the dimensional variance is not granted shall amount to more than a mere inconvenience, which shall mean that there is no other reasonable alternative to enjoy a legally permitted beneficial use of one's property. The fact that a use may be more profitable or that a structure may be more valuable after the relief is granted shall not be grounds for relief." Ordinance at § 908.3 (emphasis added).
This standard for granting a variance is identical to that provided in the Zoning Enabling Act, except in one important aspect. The language defining "more than a mere inconvenience" as "no other reasonable alternative to enjoy a legally permitted beneficial use of one's property" has been removed from the statute. G.L. 1956 §45-24-41(d)(2) (2004) ("[I]n granting a dimensional variance, that the hardship suffered by the owner of the subject property if the dimensional variance is not granted amounts to more than a mere inconvenience."). This change in the statutory language reinstated the less stringent Viti Doctrine, which requires that the applicant for a dimensional variance show only that if the variance is denied the applicant will suffer an adverse impact amounting to more than an inconvenience.Lischio v. Zoning Bd. of Review, 818 A.2d 685, 691
(2003); Viti v. Zoning Board of Review of Providence,92 R.I. 59, 64-65, 166 A.2d 211, 213 (1960). The Zoning Enabling Act requires that all zoning ordinances be in conformity with its provisions. G.L. 1956 § 45-24-28(a) (2004). Therefore, Appellants need only show that they would suffer a hardship amounting to more than an inconvenience.
In addition, when an applicant is applying for a dimensional variance, the requirement that the variance will not change the general characteristics of the area or damage the principles of the zoning ordinance or the comprehensive plan is of limited importance. Lischio,818 A.2d at 693; G.L. § 45-24-41(c)(3) (zoning board and trial court improperly focused on the use of the property and not the extent of the dimensional relief sought in finding the proposed building would alter the general character of the area); Ordinance at 908.3(3). Our Supreme Court reasoned in Lischio that when deciding whether to grant a dimensional variance, the focus should not be on the use of the proposed building, since it has already been determined that the use is appropriate. Lischio, 818 A.2d at 694.
THE BOARD'S FINDINGS OF FACT
At the outset, the Appellants argue that the factual findings of the Board are inadequate to support its decision. The record reflects that the Board was mindful of the need to provide adequate factual findings, as the Chairman of the Board repeatedly reminded the Board members of the need to provide reasons for their decision. (Tr. at 17, 72-73.)
The Board's decision states the following findings of fact:
"The applicant is proposing to build a single family home on a 4,500 sq. ft. parcel of land located in an R-1 Zone.
The applicant's request conflicts with the City of Central Falls State Certified Comprehensive Community Plans [sic] objectives for reducing dwelling density, restricting the overbuilding of land and the taxing of services on the City." (Compl., Ex. B.)
Based on these findings of fact, the Board concluded that "[a]fter due consideration of the application, the testimony of the witnesses and the entire record presented to the Zoning Board of Review, the Board makes the following decision . . . The Zoning Board of Review voted 3 to 2 to deny the applicant's request." (Compl., Ex. B.)
Adequate factual findings are a necessary prerequisite for judicial review. In its findings, a zoning board "should pinpoint the specific evidence upon which they base such findings. Additionally they should disclose the reasons upon which they base their ultimate decision because the parties and this court are entitled to know the reasons for the board's decision in order to avoid speculation, doubt, and unnecessary delay." Hopf v. Board of Review, 102 R.I. 275, 288, 230 A.2d 420, 428
(1967) (citing Bastedo v. Board of Review, 89 R.I. 420, 153 A.2d 531
(1959); Coffin v. Zoning Board of Review, 81 R.I. 112, 98 A.2d 843
(1953); Winters v. Zoning Board of Review, 80 R.I. 275, 96 A.2d 337
(1953); Petrarca v. Zoning Board of Review, 78 R.I. 130, 80 A.2d 156
(1951)). See also von Bernuth 770 A.2d at 396; Sciacca, 769 A.2d at 578. If a zoning board provides inadequate findings of fact, it runs the risk of reversal or remand for clarification. Hopf, 230 A.2d at 428.
Here, the Board sets forth two findings of fact. The second finding states that the variance would conflict with the Comprehensive Plan. However, a statement that granting a variance would contradict the Comprehensive Plan is more in the nature of a legal conclusion than a finding of fact. Kaveny, No. 2003-318-A., slip op. at 6 (vacated and remanded a zoning board's decision to deny a variance because the board's finding was conclusional and unsupported by findings of fact). Moreover, conclusory boilerplate recitations do not suffice as findings of fact.See Irish Partnership, 518 A.2d at 358-359; Hopf, 102 R.I. at 288,230 A.2d at 428. The Board specifically points to the reasons why granting the proposed variance would conflict with the Comprehensive Plan; namely, it would defeat the objectives of reducing residential density, restricting the overbuilding of land, and the taxing of services on the City. However, these reasons are also conclusory, as they are not supported by specific factual findings.
The first finding of fact — that the lot is 4,500 square feet and in a R-1 zone — does provide some evidentiary support for why granting the variance would conflict with the Comprehensive Plan's goals. However, that fact alone is not adequate to deny a variance when the variance is needed precisely because the lot is undersized. See von Bernuth,770 A.2d 396 (granting a dimensional variance from lot size restrictions). In fact, the Zoning Enabling Act protects undersized lots that were in existence prior to the passage of the Act and allows for such lots to be used for beneficial purposes notwithstanding their nonconformance. G.L. 1956 § 45-24-38 (2004). Furthermore, the Act requires cities to enact variance provisions so that such legal lots of record are protected (G.L. 1956 § 45-24-39 (2004)), and Central Falls complies with this requirement (Ordinance at § 908). Moreover, the Ordinance states that all of its provisions are in compliance with the Comprehensive Plan. Ordinance at § 100. Therefore, the mere fact that the subject lot is undersized is not an adequate factual basis for finding that granting a variance would contravene the Comprehensive Plan, since the zoning ordinance, in conformity with the Comprehensive Plan, allows for undersized lots to be developed. Thus the Board acted in violation of statutory provisions, in rendering said decision unsupported by adequate findings.
Moreover, the reliable, probative and substantial evidence in the record does not support the finding than an undersized lot would even contravene the objectives of the Comprehensive Plan. The Board stated in its findings of fact that "[t]he applicant's request conflicts with the City of Central Falls State Certified Comprehensive Community Plans [sic] objectives for reducing dwelling density, restricting the overbuilding of land and the taxing of services on the City." Arthur Hanson, the Director of the Department of Planning and Economic Development for the City of Central Falls, testified that the plan for the proposed residential structure was in conformity with the "spirit" of the Comprehensive Plan's goal of reducing residential density. (Tr. at 68.) In addition, Todd Olbrych, the zoning officer, testified that, in his estimation, a lot coverage restriction is a mechanism for controlling density, and that here the lot coverage requirement is satisfied. (Tr. at 74.)
The only testimony in the record that remotely supports the Board's finding that granting the variance would contravene the city's Comprehensive Plan is that of the neighboring landowners. The landowners voiced their concerns about putting a house on such a small lot, indicating that it would result in houses being densely packed. (Tr. at 47, 58-59.) However, the lay opinions of neighbors on matters that require expert knowledge, such as whether the proposed residence would illegally encroach on its neighbors' property, do not have the probative force to outweigh the expert evidence provided to the contrary. SeeToohey v. Kilday, 415 A.2d 732, 737 (R.I. 1980). Moreover, it is uncontroverted in the record that Appellants' proposed residence meets all other dimensional requirements other than the minimum lot size of 5,000 square feet. Therefore, the proposed residence would be no closer to its neighbors than would be allowed if the lot were 500 square feet larger and no dimensional variance were needed. Thus, the record reflects that the proposed residence, having the same lot coverage and setbacks as required of all conforming uses in the R-1 zone, will not contribute to the problem of overcrowding more than what a residence on a lot 5,000 square feet or larger with the same lot coverage and setbacks would contribute.
Since the Ordinance states that all of its provisions are in conformity with the Comprehensive Plan (Ordinance at § 100), it cannot follow that granting the dimensional variance would contravene the Comprehensive Plan's goal of reducing density when the zoning ordinance allows homes to be built, albeit on slightly larger lots, that contribute to overcrowding just as much. Therefore, while the density concerns of the neighboring landowners may be valid, they are best addressed through a petition to the City Council to change the zoning ordinance to further restrict development of undersized lots (insofar as the Zoning Enabling Act will allow) and not through the denying of an application for a dimensional variance. See Verdecchia v. Johnston Town Council, 589 A.2d 830 (R.I. 1991) (amendments to a zoning ordinance are a legislative function); G.L. 1956 § 45-24-50 (2004) (town council has the power to amend the town's zoning ordinance to promote the public welfare).
CONCLUSION
After a review of the entire record, this Court finds the decision of the Board is arbitrary and not supported by the reliable, probative, and substantial evidence of record. Substantial rights of the Appellants have been prejudiced. Accordingly, the decision of the Board is reversed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4554162/ | Filed 8/7/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
DIANE HOLLEY, Individually and as a
Conservator, etc., et al.,
G058576
Plaintiffs and Respondents,
(Super. Ct. No. 30-2019-01045608)
v.
OPINION
SILVERADO SENIOR LIVING
MANAGEMENT, INC., et al.,
Defendants and Appellants.
Appeal from an order of the Superior Court of Orange County, Deborah C.
Servino, Judge. Affirmed.
Giovanniello Law Group, Alexander F. Giovanniello, Daniel F. McCann
and Erik M. Bressler for Defendants and Appellants.
Gharibian Law, Art Gharibian, Alexander H. Feldman and Valentina
Ambarchyan for Plaintiffs and Respondents.
BraunHagey & Borden, Matthew Borden, J. Noah Hagey and Athul K.
Acharya as Amicus Curiae on behalf of Plaintiffs and Respondents.
* * *
Defendants Silverado Senior Living Management, Inc., and Subtenant 350
W. Bay Street, LLC dba Silverado Senior Living – Newport Mesa (collectively Silverado
or defendants) appeal from the trial court’s order denying its petition to compel
arbitration of the complaint filed by plaintiffs Diane Holley, both individually and as
successor in interest to Elizabeth S. Holley, and James Holley (collectively the Holleys or
1
plaintiffs). Plaintiffs brought suit against defendants, who operate a senior living
facility, for elder abuse and neglect, negligence, and wrongful death, based on
defendants’ alleged substandard treatment of Elizabeth.
More than eight months after the complaint was filed, defendants moved to
arbitrate based on an arbitration agreement Diane had signed upon Elizabeth’s admission.
At the time, Diane and James were temporary conservators of Elizabeth’s person. The
court denied the motion, finding that at the time Diane signed the document, there was
insufficient evidence to demonstrate she had the authority to bind Elizabeth to the
arbitration agreement. Defendants argue this ruling was incorrect as a matter of law, and
that pursuant to the Probate Code, the agreement to arbitrate was a “health care decision”
to which a conservator had the authority to bind a conservatee, relying on a case from the
Third District Court of Appeal, Hutcheson v. Eskaton FountainWood Lodge (2017) 17
Cal.App.5th 937 (Hutcheson).
We conclude that Hutcheson and other cases on which Silverado relies are
distinguishable on the facts and relevant legal principles. When the Holleys signed the
arbitration agreement, they were temporary conservators of Elizabeth’s person, and
therefore, they lacked the power to bind Elizabeth to an agreement giving up substantial
rights without her consent or a prior adjudication of her lack of capacity. Further, as
merely temporary conservators, the Holleys were constrained, as a general matter, from
making long-term decisions without prior court approval.
1
For the ease of the reader, when necessary, we refer to the Holleys by their first names.
2
Accordingly, the trial court was correct that the arbitration agreement is
unenforceable as to Elizabeth. Further, because there was no substantial evidence that
the Holleys intended to sign the arbitration agreement on their own behalf, it cannot be
enforced against their individual claims. We therefore affirm the court’s order denying
Silverado’s motion to compel arbitration.
I
FACTS
At the time of Elizabeth’s admission to Silverado, she was 77 years old and
suffering from dementia and other medical problems. In January 2017, professional
conservators Rob Saslow and Stacey Haft were appointed temporary conservators of
Elizabeth’s estate, with an expiration date of October 25.
In August 2017, Diane and James were appointed temporary conservators
of Elizabeth’s person, but not her estate. On October 26, they signed paperwork for
Elizabeth’s admission to Silverado.
According to Diane, she was presented with “a stack of paperwork to sign
relating to my mother’s admission at Silverado . . . . [An employee] told me to sign my
name to the signature line on various forms . . . . There were a lot of forms to be signed
that day. More emphasis was given to the forms that needed information about my
mom’s needs regarding her activities of daily living as opposed to forms where she just
needed my signature. There was a great sense of urgency to the admissions process in
which I signed these numerous forms. I was told several times that beds go very quickly
at Silverado and that if I did not get all the forms signed and completed and a check
deposited, that the bed could go to someone else on the waiting list. . . . At no point did
anyone from Silverado explain to me that part of the admission paperwork contained an
arbitration agreement and that it was not a condition for my mother’s admission.”
3
Among the documents was one entitled “Resident-Community Arbitration
Agreement” (the arbitration agreement), which stated it was voluntary and not a
condition of admission. The arbitration agreement stated: “The undersigned certifies
that he/she has read this Agreement, and has been given a copy, and is either the Resident
and/or is the representative/agent of the Resident, duly authorized to execute the above
and accept its terms. [¶] *Based on the Resident’s Mental Capacity, the term Resident
may include Responsible Party, POA, Guardian and/or Conservator.”
Diane signed the arbitration agreement and James signed underneath
Diane’s name. Elizabeth did not sign the document.
On October 30, a hearing was held on Diane and James’s petition, as
temporary conservators of Elizabeth’s person, to place her at Silverado. The petition was
granted. Additionally, the court ordered Diane and James to assume the role of
conservator of both Elizabeth’s person and her estate temporarily, with an expiration date
of April 25, 2018. The court’s October 30th order gave Diane and James specific
authority to place Elizabeth in a locked facility and made the requisite findings under the
Probate Code.
Elizabeth was admitted to Silverado from November 1 until November 10,
2017. On November 4, she was transferred to Hoag Hospital after an X-ray revealed a
humeral fracture, and she returned the same day with her arm in a sling. She also
suffered a hip fracture and a number of bruises, according to the complaint. She had
surgery on November 10, and she passed away on February 10, 2018.
On January 22, 2019, James and Diane, individually, and Diane, as
Elizabeth’s successor in interest, filed the instant lawsuit, alleging elder abuse,
negligence, breach of contract, and wrongful death.
In October 2019, defendants filed the instant motion to compel arbitration.
After briefing and a hearing, the court denied the motion.
4
II
DISCUSSION
A. General Principles and Standard of Review
“California has a strong public policy in favor of arbitration as an
expeditious and cost-effective way of resolving disputes. [Citation.] Even so, parties can
only be compelled to arbitrate when they have agreed to do so. [Citation.] ‘Arbitration
. . . is a matter of consent, not coercion . . . .’ [Citation.] Whether an agreement to
arbitrate exists is a threshold issue of contract formation and state contract law.
[Citations.] The party seeking to compel arbitration bears the burden of proving the
existence of a valid arbitration agreement.” (Avila v. Southern California Specialty Care,
Inc. (2018) 20 Cal.App.5th 835, 843-844.)
With respect to the standard of review, “‘[t]here is no uniform standard of
review for evaluating an order denying a motion to compel arbitration. [Citation.] If the
court’s order is based on a decision of fact, then we adopt a substantial evidence standard.
[Citations.] Alternatively, if the court’s denial rests solely on a decision of law, then a de
novo standard of review is employed.’” (Laswell v. AG Seal Beach, LLC (2010) 189
Cal.App.4th 1399, 1406.)
When more than one reasonable inference can be drawn from the
undisputed evidence, “‘“‘the determination of whether the evidence supports one
conclusion or the other is for the trial court, and a reviewing court may not disturb such
finding if there is any substantial evidence to support it . . . .’”’” (McDermott Will &
Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1102.) In that situation, “we
must ‘accept as true all evidence and all reasonable inferences from the evidence tending
to establish the correctness of the trial court’s findings and decision . . . .’” (Young v.
Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1130, fn. 6; see Baker v. Osborne
Development Corp. (2008) 159 Cal.App.4th 884, 892 [where the trial court’s
determination “turned on the resolution of conflicts in the evidence or on factual
5
inferences to be drawn from the evidence, we consider the evidence in the light most
favorable to the trial court’s ruling and review the trial court’s factual determinations
under the substantial evidence standard”].)
B. Powers Under Temporary Conservatorship of the Person
Silverado argues the trial court erroneously concluded the Holleys did not
have the authority to bind Elizabeth to the arbitration agreement.
In Hutcheson, supra, 17 Cal.App.5th 937, the decedent, Barbara
Lovenstein, appointed her niece, plaintiff Robin Hutcheson, as her attorney-in-fact under
2
the Health Care Decisions Law (Prob. Code, § 4671, subd. (a)) (the health care POA), in
2006. This authority gave Hutcheson the power to make health care decisions for her,
including the admission to a medical care facility. (Hutcheson, at pp. 941-942.) In 2010,
she also executed a power of attorney (the personal care POA) pursuant to section 4000,
et seq., using the statutory form. She designated her sister, plaintiff Jean Charles, and
Hutcheson as her attorneys-in-fact. The general POA gave Charles and Hutcheson
decision-making authority in a number of areas, but did not expressly authorize anyone to
make medical and health care decisions for her. (Hutcheson, at p. 942.)
In February 2012, Charles voluntarily admitted Lovenstein to defendant
Eskaton FountainWood Lodge’s (Eskaton) facility. (Hutcheson, supra, 17 Cal.App.5th at
p. 942.) The admission agreement included an arbitration clause. Lovenstein died in
April 2012. (Id. at p. 943.) After Hutcheson and Charles sued Eskaton, Eskaton
petitioned to compel arbitration. The trial court denied the petition, and in due course the
appellate court affirmed. (Id. at pp. 941, 943.) The appellate court concluded that
Lovenstein’s admission was a “health care decision” and Charles, who co-held the
personal care POA, was not authorized to make such decisions. (Id. at pp. 945-951.)
2
All further undesignated statutory references are to the Probate Code.
6
Similarly, in Garrison v. Superior Court (2005) 132 Cal.App.4th 253, 266,
the court also found that an agreement to arbitrate was a health care decision. The court
concluded that a health care POA was sufficient to establish the validity of an arbitration
clause, concluding the arbitration clause was “part of the health care decisionmaking
process.”
Thus, Silverado argues, the Holleys “acted as [Elizabeth’s] conservators;
conservators who possessed the authority to make healthcare decisions on [Elizabeth’s]
behalf. As Conservators, Respondents were ‘responsible for the conservatee’s care and
protection . . . to arrange for the conservatee’s health care, meals, clothing, personal care,
housekeeping . . . and for making sure the conservatee’s healthcare needs are met.’”
Silverado is wrong for several reasons, and those reasons distinguish this
case from those cited. We do not disagree with the holdings of Hutcheson or Garrison v.
Superior Court, supra, 132 Cal.App.4th 253, that admission to a residential facility is
essentially a health care decision. But that is the beginning of the inquiry, not the end,
and neither of those cases address conservatorships.
First, the Holleys were, at the time the arbitration agreement was signed,
conservators of Elizabeth’s person but not her estate. Sections 2350 through 2361 set out
the powers and duties of a conservator of the person. A “conservator [of the person] has
the care, custody, and control of . . . [the] conservatee.” (§ 2351, subd. (a).) As
interpreted by the Judicial Council pursuant to section 1834, a conservator of the person
is “responsible for the conservatee’s care and protection. You must decide, within certain
limits, where the conservatee will live; and you must arrange for the conservatee’s health
care, meals, clothing, personal care, housekeeping, transportation, and recreation.”
(Judicial Council Forms, form GC-348.)
Assuming that conservators of the person may enter into contracts for these
purposes on the conservatee’s behalf, the duties of a temporary conservator have more
constraints. “A temporary conservator should avoid making long-term decisions or
7
changes that could safely wait until a general conservator is appointed. As temporary
conservator, you may not move a conservatee from his or her home, unless there is an
emergency, or sell or give away the conservatee’s home or any other assets without prior
court approval.” (Judicial Council Forms, form GC-348.) By purporting to sign the
arbitration agreement on Elizabeth’s behalf, the Holleys were giving up an important
right – the right to use the courts for redress of grievances. As temporary conservators of
her person, this was simply beyond their powers without the court’s approval.
Second, the power of a conservator of the person to make medical decisions
without court approval or the conservatee’s consent is limited. Section 2354 states: “If
the conservatee has not been adjudicated to lack the capacity to give informed consent for
medical treatment, the conservatee may consent to his or her medical treatment. The
conservator may also give consent to the medical treatment, but the consent of the
conservator is not required if the conservatee has the capacity to give informed consent to
the medical treatment, and the consent of the conservator alone is not sufficient under this
subdivision if the conservatee objects to the medical treatment.” To the extent admission
to a residential facility and a concordant arbitration agreement is a “health care decision”
as Silverado asserts, they cannot escape the import of this provision. Without Elizabeth’s
signature, there is no substantial evidence that she consented. Without her consent, the
Holleys required a court adjudication that Elizabeth lacked capacity to make such
decisions. (§ 2355.) The court’s order on this point was not entered until October 30, six
days after the arbitration agreement was signed. Accordingly, the Holleys did not have
the power to make such decisions for Elizabeth at the time.
C. The Holleys’ Individual Claims
Although it did not raise the issue in its opening brief, Silverado argues in
its reply brief that the arbitration agreement is enforceable against the Holleys with
respect to their individual claims based on its language: “This agreement shall be binding
8
for any dispute except for disputes pertaining to collections or evictions. This agreement
is binding on all parties, including their personal representatives, executors,
administrators, successors, guardians, heir, and assigns.” Silverado asserts that the
Holleys “execut[ed] the Arbitration Agreement as Decedent’s conservators but they also
are Decedent’s heirs, thereby binding them to the Arbitration Agreement.”
This presumes, of course, that the arbitration agreement is valid in the first
place – which, as we discussed ante, it is not. Because they lacked the power as
temporary conservators to sign the arbitration agreement on Elizabeth’s behalf, this
language is irrelevant.
Further, there is no evidence they intended to sign the agreement in their
individual capacities. (Avila v. Southern California Specialty Care, Inc., supra, 20
Cal.App.5th at pp. 844-845.) The plain language of the document does not contemplate
third parties signing on their own behalf. Without evidence of their intent to waive any
personal claims, the arbitration agreement is not enforceable against the Holleys
individually. Arbitration remains, as we mentioned above, a matter of consent. (See id.
at pp. 843-844.)
D. Remaining Arguments
Silverado argues that “[c]ontrary to the trial court’s silence, the FAA
applies.” Ultimately, this is irrelevant to this case, particularly as the trial court did not
mention the issue one way or the other. Assuming the FAA does apply, an arbitration
clause can nonetheless be found unenforceable “upon such grounds as exist at law or in
equity for the revocation of any contract.” (9 U.S.C. § 2.) The FAA is simply not
relevant when there is no contract in the first place, which is the case here. The Holleys
did not have the authority to bind Elizabeth, and therefore, there was no existing
arbitration agreement to be governed by the FAA.
9
For the same reason, we need not consider the Hollleys’ argument that the
motion to compel arbitration was untimely, and therefore, Silverado waived the right to
arbitrate. We also need not consider their arguments regarding the unconscionability of
the agreement.
III
DISPOSITION
The order denying the motion to compel arbitration is affirmed. The
Holleys are entitled to their costs on appeal.
MOORE, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.
10 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4554163/ | Filed 8/7/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
RAFI GHAZARIAN et al.,
Plaintiffs and Appellants, G057113
v. (Super. Ct. No. 30-2017-00909913)
MAGELLAN HEALTH, INC., et al., OPINION
Defendants and Respondents.
Appeals from judgments of the Superior Court of Orange County, Ronald
L. Bauer, Judge. Reversed and remanded as directed.
The Arkin Law Firm and Sharon J. Arkin; Law Office of Randy D. Curry
and Randy David Curry for Plaintiffs and Appellants.
Cole Pedroza, Kenneth R. Pedroza and Cassidy C. Davenport for
Defendants and Respondents Magellan Health, Inc., and Human Affairs International of
California.
Manatt, Phelps & Phillips, Gregory N. Pimstone, Joanna S. McCallum,
Justin Jones Rodriguez and Joseph E. Laska for Defendant and Respondent California
Physicians’ Service.
* * *
Generally, an insurer is not liable for bad faith if its denial of a claim was
reasonable. In this appeal, we clarify that to avoid bad faith liability, it is not enough that
an insurer’s ultimate decision might be considered reasonable at first glance. Here, the
trial court erred by failing to look past an arguably reasonable denial to determine
whether the insurer fairly evaluated its insured’s claim.
Plaintiffs Rafi Ghazarian and Edna Betgovargez (collectively plaintiffs)
have a son, A.G., with autism. A.G. receives applied behavior analysis (ABA) therapy
for his autism under a health insurance policy (the policy) plaintiffs have with defendant
California Physicians’ Service dba Blue Shield of California (Blue Shield). Mental
health benefits under this policy are administered by defendants Magellan Health, Inc.
and Human Affairs International of California (collectively Magellan). By law, the
policy must provide A.G. with all medically necessary ABA therapy. (Health & Saf.
1
Code, § 1374.73, subds. (a)(1) & (c)(1).)
Before A.G. turned seven years old, Blue Shield and Magellan (collectively
defendants) had approved him for 157 hours of medically necessary ABA therapy per
month. But shortly after he turned seven, defendants denied plaintiffs’ request for 157
hours of therapy on grounds only 81 hours per month were medically necessary.
Plaintiffs requested the Department of Managed Health Care (the Department) conduct
an independent review of the denial. (§ 1374.30 et seq.) Two of the three independent
physician reviewers disagreed with the denial, while the other agreed. As a result, the
Department ordered Blue Shield to reverse the denial and authorize the requested care.
Plaintiffs then filed this lawsuit against defendants. They asserted a claim
for breach of the implied covenant of good faith and fair dealing against Blue Shield, and
they also asserted claims for intentional interference with contract and violations of
Business and Professions Code section 17200 (the UCL) against defendants. Primarily,
1
Further undesignated statutory references are to the Health and Safety Code.
2
plaintiffs allege defendants have adopted unfair medical necessity guidelines that
categorically reduce the amount of ABA therapy autistic children receive once they turn
seven years old, regardless of medical need.
Defendants each moved for summary judgment. Both motions were
granted. As to the bad faith claim, the trial court found that since one of the independent
physicians agreed with the denial, Blue Shield acted reasonably as a matter of law. As to
the intentional interference with contract claim, the court found no contract existed
between plaintiffs and A.G.’s treatment provider with which defendants could interfere.
Finally, the court found the UCL claim was based on the same allegations as the other
claims and thus also failed. Separate judgments were entered in favor of defendants.
Plaintiffs now appeal.
We find summary judgment was improperly granted as to the bad faith and
UCL claims. Superficially, defendants’ denial of the treatment might appear to be
reasonable since an independent physician agreed with their decision. But it is well
established that an insurer may be liable for bad faith if it unfairly evaluates a claim.
Here, there are factual disputes as to the fairness of defendants’ evaluation. In particular,
the medical necessity standards defendants used to deny plaintiffs’ claim appear to
arbitrarily reduce ABA therapy for children once they turn seven. There are questions of
fact as to the reasonability of these standards. If defendants used unfair criteria to
evaluate plaintiffs’ claim, they did not fairly evaluate it and may be liable for bad faith.
Further, had the trial court examined why the independent physician found
A.G.’s treatment should be reduced, other questions of fact about whether defendants’
denial was reasonable would have been obvious and also would have required denial of
the motion. The independent physician found treatment should be reduced because A.G.
was not making much progress with ABA therapy. In contrast, Blue Shield stated A.G.
did not need as much treatment because he had already made significant progress under
ABA therapy. There are also questions of fact as to whether defendants thoroughly
3
evaluated supporting documentation for the claim and pressured A.G.’s therapy provider
to adopt their allegedly unreasonable criteria.
Conversely, we find summary adjudication proper as to the intentional
interference with contract claim because plaintiffs have failed to show any contract with
which defendants interfered.
We reverse the judgments and remand the case to the trial court as directed.
I
FACTS
A. Background Law
Under the Mental Health Parity Act enacted in 1999 (section 1374.72),
“every health plan providing hospital, medical or surgical coverage must also ‘provide
coverage for the diagnosis and medically necessary treatment of severe mental illnesses
of a person of any age, and of serious emotional disturbances of a child’ as specified in
the statute. [(Citing § 1374.72, subd. (a).)] The statute specifically itemizes the ‘“severe
mental illnesses”’ that must be covered, including ‘[p]ervasive developmental disorder or
2
autism.’ [(Citing § 1374.72, subd. (d)(7).)]” (Consumer Watchdog v. Department of
Managed Health Care (2014) 225 Cal.App.4th 862, 870 (Consumer Watchdog).)
In 2011, the Legislature further addressed autism treatment by enacting
section 1374.73. This statute specifically requires health plans subject to section 1374.72
2
“‘“[A]utism spectrum disorders are complex neurological disorders of development
that onset in early childhood.” [Citation.] These disorders, which include full spectrum
autism, “affect the functioning of the brain to cause mild to severe difficulties, including
language delays, communication problems, limited social skills, and repetitive and other
unusual behaviors.”’” (Consumer Watchdog, supra, 225 Cal.App.4th at p. 868.)
4
3
to also provide coverage for medically necessary ABA therapy. (§ 1374.73, subds.
(a)(1) & (c)(1); Consumer Watchdog, supra, 225 Cal.App.4th at pp. 874-875.) ABA
therapy “is a form of behavioral health treatment which develops or restores, to the
maximum extent practicable, the functioning of an individual with autism. [Citation.]
Numerous studies indicate that ABA is the most effective treatment known for autistic
children. Studies also demonstrate that ABA has lasting results. . . . ABA therapy can
create new brain connections in a child with autism; these new connections are to be
contrasted with the abnormal connections caused by autism.” (Consumer Watchdog,
supra, 225 Cal.App.4th at p. 868.)
The Department “is entrusted with the protection of patients’ rights to
quality health care, including enforcement of laws relating to health care service plans.”
(California Consumer Health Care Council, Inc. v. Department of Managed Health Care
(2008) 161 Cal.App.4th 684, 687-688.) These responsibilities include handling the
grievances of patients whose claims have been denied by their insurers for lack of
medical necessity. (Consumer Watchdog, supra, 225 Cal.App.4th at p. 871.) Such
patients may request the Department conduct an independent medical review (IMR) of
their denied claims. (Ibid.; § 1374.30, subds. (a), (b) & (d).) In the IMR process, “an
independent medical reviewer (or reviewers) determines whether the disputed health care
service is medically necessary based on the specific needs of the patient and such
information as peer-reviewed scientific evidence, nationally recognized professional
standards, and generally accepted standards of medical practice. . . . If the IMR decision
is in favor of the patient, the plan shall either promptly authorize the services or
3
Section 1374.73, subdivision (d), exempts certain health plans from its requirements:
“(1) [a] specialized health care service plan that does not deliver mental health or
behavioral health services to enrollees”; and “(2) [a] health care service plan contract in
the Medi-Cal program . . . .” Neither of these exemptions are relevant here.
5
reimburse the provider or the enrollee for services already rendered.” (Consumer
Watchdog, supra, 225 Cal.App.4th at p. 871.)
B. Denial of Plaintiffs’ Claim
Plaintiffs’ son, A.G., was born in April 2009 and later diagnosed with
autism. A.G. began receiving ABA therapy from the Center for Autism Related
Disorders (CARD) in 2012, which was covered by Blue Shield under the policy. Mental
health benefits under the policy were arranged and administered by Human Affairs
International of California (Human Affairs) under a contract it had with Blue Shield.
Human Affairs is a wholly owned subsidiary of nonparty Magellan Healthcare, Inc.,
4
which is a wholly owned subsidiary of defendant Magellan Health, Inc. (MHI). There is
no dispute that the policy was subject to section 1374.73 or that Blue Shield was legally
required to cover all of A.G.’s medically necessary ABA therapy.
Prior to May 2016, i.e., before A.G. turned seven years old, Blue Shield had
covered 157 total hours of medically necessary ABA treatment per month (roughly 36
hours per week). This amount was comprised of 137 hours of direct one-on-one services,
14 hours of supervision, and 6 hours of caregiver training. Shortly after A.G. turned
seven, plaintiffs received a letter dated May 2, 2016, from Magellan acting as Blue
5
Shield’s mental health service administrator. In the letter, Magellan denied plaintiffs’
request for 157 hours of ABA treatment per month for the upcoming period between May
23 to November 23, 2016. Instead, Magellan approved only 81 total hours per month
4
MHI contends it cannot be held liable for the acts of Human Affairs. As explained in
part E, infra, based on the record, there is no practical distinction between the conduct of
Human Affairs and MHI for purposes of this appeal. So, we generally refer to these
parties collectively throughout this opinion.
5
The letter is on Blue Shield letterhead but specifies it is coming from “the mental
health service administrator (MHSA) for Blue Shield,” which is Magellan.
6
(roughly 19 hours a week), including 68 hours of direct one-on-one services, 7 hours of
supervision, and 6 hours of caregiver training. The letter explained that A.G. had made
significant progress under ABA therapy. Consequently, the remaining 76 hours were not
medically necessary under Magellan’s medical necessity criteria and thus denied. The
letter was signed by Dr. Gayani DeSilva, an associate medical director for Magellan.
Plaintiffs appealed Magellan’s decision to Blue Shield. Blue Shield denied
the appeal in a letter dated June 15, 2016, stating “the medical necessity of this total
number of hours per month of direct and supervisory ABA services has not been
established.” The letter was signed by Blue Shield’s medical director.
Following Blue Shield’s denial of their appeal, plaintiffs requested an IMR
from the Department. Their petition was reviewed by a panel of three independent,
board-certified physicians. Two of the three panel members found the requested 157
monthly hours of ABA treatment to be medically necessary. The other panel member
agreed with Blue Shield that only 81 monthly hours were medically necessary. Contrary
to Blue Shield, however, the physician found less ABA treatment was warranted because
A.G. had made limited improvements over the years, “suggesting that he has had minimal
response to ABA therapy.” The Department sent plaintiffs a letter dated July 12, 2016,
stating Blue Shield’s denial had been overturned based on the majority opinion of the
panel. The Department ordered Blue Shield to authorize the requested treatment within
five working days. Blue Shield complied.
C. The Instant Lawsuit
Plaintiffs filed this lawsuit against Blue Shield and MHI in March 2017.
They filed the operative first amended complaint in June 2017 and later amended it to
designate Human Affairs as Doe 1. Among other things, plaintiffs alleged defendants
had engaged in the following conduct: (1) adopted unreasonable medical necessity
standards that indiscriminately reduce the amount of authorized ABA treatment for
7
autistic children once they turn seven years old; (2) bullied ABA therapy providers into
adopting these unreasonable standards by threatening to terminate provider agreements;
(3) forced families to file IMR requests with the Department to obtain medically
necessary ABA treatment; and (4) failed to thoroughly investigate ABA treatment claims
prior to denial.
Based on these allegations, the amended complaint asserted causes of
action for breach of the implied covenant of good faith and fair dealing, intentional
interference with contractual relations, and UCL violations. The breach of the implied
covenant claim was asserted against Blue Shield only, while the remaining claims were
asserted against all defendants.
In January 2018, defendants filed separate motions for summary judgment,
or, in the alternative, summary adjudication of the individual claims alleged against them.
The trial court granted both summary judgment motions in September 2018. As to the
first cause of action, the trial court found “Blue Shield’s conduct was reasonable as a
matter of law. . . . Blue Shield presented undisputed evidence that [the Department]
conducted an [IMR] utilizing three independent physicians at Plaintiffs’ request. One
such physician agreed with Blue Shield’s coverage determination.” As to the second
cause of action, the trial court found no contract existed between plaintiffs and CARD
with which defendants could interfere. Finally, the trial court found the UCL claim arose
from the same allegations as the other two claims, and, consequently, failed for the same
reasons.
The trial court entered separate judgments in favor of defendants in October
2018. Plaintiffs appeal.
8
II
DISCUSSION
A. Legal Standard
“The purpose of the law of summary judgment is to provide courts with a
mechanism to cut through the parties’ pleadings in order to determine whether, despite
their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.) A defendant moving for summary judgment
must show the plaintiff’s causes of action have no merit. It may do so by negating an
element of a cause of action or showing it has a complete defense to a cause of action.
The burden then shifts to the plaintiff to show a triable issue of material fact as to the
cause of action or defense. (Id. at p. 849.)
The trial court’s decision is reviewed de novo, “considering all the evidence
set forth in the moving and opposition papers except that to which objections were made
and sustained.” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65-66.) The
reviewing court “liberally constru[es] the evidence in favor of the party opposing the
motion and resolv[es] all doubts about the evidence in favor of the opponent.” (Doe v.
Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 732-733.)
Similarly, “any doubts as to the propriety of granting a summary judgment motion should
be resolved in favor of the party opposing the motion.” (Reid v. Google, Inc. (2010) 50
Cal.4th 512, 535.)
B. Evidence Outside the Separate Statement
Before analyzing the merits of the appeal, we address Blue Shield’s
contention that plaintiffs cannot rely on facts outside their separate statement. In San
Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 315-316,
this court found that “[w]hether to consider evidence not referenced in the moving party’s
separate statement rests with the sound discretion of the trial court . . . .” The trial court
9
likewise has discretion to consider facts not referenced in the opposing party’s separate
statement. (Code Civ. Proc., § 437c, subd. (b)(3); see San Diego Watercrafts, Inc., at pp.
315-316.)
The appellate court has the same discretion as the trial court to consider
evidence not cited in a party’s separate statement. (Fenn v. Sherriff (2003) 109
Cal.App.4th 1466, 1481.) We exercise that discretion here. The record in this case is not
large, and there are only a few key documents. In fact, plaintiffs submitted only about 60
pages of evidence in opposition to the motions. We also note that “[t]he separate
statement is not designed to pervert the truth, but merely to expedite and clarify the
germane facts.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 438.)
C. Defendants’ Evidentiary Objections
Defendants each made several objections to plaintiffs’ evidence. The trial
court did not rule on any of them. Thus, we presume the trial court overruled these
objections and considered the disputed evidence in ruling on the motions. (Reid v.
Google, Inc., supra, 50 Cal.4th at p. 534.) The overruled objections may be raised on
appeal, but the burden is on the objecting party to renew any relevant objection by
arguing the issue in its brief; citation to the record alone is insufficient. (Ibid.; Duffey v.
Tender Heart Home Care Agency, LLC (2019) 31 Cal.App.5th 232, 251, fn. 17.)
Magellan did not renew any of its evidentiary objections on appeal, and, as a result, we
disregard them. We will address Blue Shield’s renewed objections below where relevant.
D. Breach of the Implied Covenant of Good Faith and Fair Dealing
1. Bad faith liability
“The law implies in every contract, including insurance policies, a covenant
of good faith and fair dealing. ‘The implied promise requires each contracting party to
refrain from doing anything to injure the right of the other to receive the agreement’s
10
benefits. . . . When the insurer unreasonably and in bad faith withholds payment of the
claim of its insured, it is subject to liability in tort.’” (Wilson v. 21st Century Ins. Co.
(2007) 42 Cal.4th 713, 720 (Wilson).) Similarly, “‘delayed payment based on inadequate
or tardy investigations, oppressive conduct by claims adjusters seeking to reduce the
amounts legitimately payable and numerous other tactics may breach the implied
covenant because’ they frustrate the insured’s right to receive the benefits of the contract
in ‘prompt compensation for losses.’” (Waller v. Truck Ins. Exchange, Inc. (1995) 11
Cal.4th 1, 36.)
Bad faith may also be found where an insurer “employs a standard of
medical necessity significantly at variance with the medical standards of the community
. . . . Such a restricted definition of medical necessity, frustrating the justified
expectations of the insured, is inconsistent with the liberal construction of policy
language required by the duty of good faith. . . . [G]ood faith demands a construction of
medical necessity consistent with community medical standards that will minimize the
patient’s uncertainty of coverage in accepting his physician’s recommended treatment.”
(Hughes v. Blue Cross of Northern California (1989) 215 Cal.App.3d 832, 845-846
(Hughes).)
In Hughes, the plaintiff’s son was hospitalized several times for psychiatric
reasons. The plaintiff’s insurer denied a portion of her claims for hospital expenses on
grounds some hospitalizations were not medically necessary. The plaintiff sued the
insurer for bad faith and prevailed at trial. The insurer appealed, arguing the jury’s
verdict was not supported by substantial evidence. (Hughes, 215 Cal.App.3d at pp. 838-
841.) The reviewing court disagreed, finding “the jury could reasonably infer that [the
insurer’s reviewing physician] employed a standard of medical necessity markedly at
variance from that of the psychiatric community in California.” (Id. at p. 843.) Among
other things, the reviewing physician testified he recommended disapproval of about 30
percent of the claims he reviewed, was unswayed that his recommendation conflicted
11
with the son’s other treating psychiatrists who were more familiar with the case, and
admitted “his standard of medical necessity might be more restrictive than the generally
accepted professional standard.” (Ibid.)
The principles in Hughes are applicable here. Plaintiffs allege Blue Shield
has adopted unreasonable medical necessity standards that indiscriminately reduce the
amount of ABA therapy for children seven years old and above, regardless of medical
need. The alleged scheme forces families to either accept Blue Shield’s decision or
expend additional resources going through the IMR process. In support of their
allegations, plaintiffs provide Magellan’s medical necessity guidelines for comprehensive
6
ABA therapy, which were adopted by Blue Shield. These guidelines state, “[ABA]
Services may range from 21 to 40 hours per week, early in the recipient’s development
(for example, under the age of 7). . . . The standard of care for comprehensive services
has been for durations of 1 to 2 years.” (Italics added.)
Plaintiffs assert these guidelines conflict with established medical
standards. Specifically, the standards set forth by the Behavior Analyst Certification
Board (BACB), which state, “[ABA] treatment should be based on the clinical needs of
the individual and not constrained by age. . . . ABA is effective across the life span.
Research has not established an age limit beyond which ABA is ineffective.” (Italics
added.) The BACB is “a private organization established [in 1998] to grant national
credentials to ABA professionals.” (Consumer Watchdog, supra, 225 Cal.App.4th at p.
869.) It is a respected organization in the world of ABA treatment. This is evidenced by
section 1374.73, subdivision (c)(3)(A), which defines “‘[q]ualified autism service
provider’” to mean “[a] person who is certified by a national entity, such as the Behavior
Analyst Certification Board . . . .”
6
Blue Shield does not argue that it cannot be held liable for the actions of Magellan, its
mental health service administrator.
12
While the BACB’s guidelines are not binding on Blue Shield, they are
evidence of the general standard of medical necessity for ABA therapy. Notably, the
BACB’s guidelines state treatment should be based on the needs of the individual and
unconstrained by age. In comparison, Blue Shield’s standards appear to arbitrarily limit
comprehensive ABA therapy (21 to 40 hours per week) to children under the age of
seven, or, at best, to “early in the recipient’s development.” Though Blue Shield may
develop its own standards for determining medical necessity (see § 1367.01, subd. (b)), it
may not adopt self-serving guidelines that lack support from the medical community.
Such actions are inconsistent with an insurer’s obligations under the implied covenant of
good faith and fair dealing. (Hughes, supra, 215 Cal.App.3d at pp. 845-846.)
To be clear, we do not mean to suggest that a health insurer cannot define
medical necessity in a manner that embraces efficient practices or novel technologies or
procedures that have support in the medical community. That is not the case here. Blue
Shield provides no explanation or evidence in support of the reasonableness of the
medical necessity guidelines at issue. It is entirely unclear why Blue Shield’s standards
advise that comprehensive ABA therapy should be limited to children under the age of
seven. Here, A.G.’s ABA therapy was reduced from roughly 36 hours per week to 19
hours per week just after he turned seven years old. Based on the record, triable issues of
fact exist as to the reasonableness of Blue Shield’s medical necessity standards for
comprehensive ABA therapy and whether plaintiffs’ claim was unfairly denied based on
those standards.
2. The genuine dispute rule
Blue Shield argues the trial court correctly granted summary judgment
under the genuine dispute rule (also known as the genuine issue rule). We disagree.
The genuine dispute rule allows an insurer to avoid bad faith liability by
showing it denied payment on a claim due to the existence of a genuine dispute with its
13
insured over coverage or the claim amount. (Wilson, supra, 42 Cal.4th at p. 723.) “The
genuine dispute rule does not relieve an insurer from its obligation to thoroughly and
fairly investigate, process and evaluate the insured’s claim. A genuine dispute exists only
where the insurer’s position is maintained in good faith and on reasonable grounds.”
(Id. at pp. 723-724.) “An insurer cannot claim the benefit of the genuine dispute doctrine
based on an investigation or evaluation of the insured’s claim that is not full, fair and
thorough.” (Bosetti v. United States Life Ins. Co. in City of New York (2009) 175
Cal.App.4th 1208, 1237.)
“When determining if a dispute is genuine, we do ‘not decide which party
is “right” as to the disputed matter, but only that a reasonable and legitimate dispute
actually existed.’ [Citation.] A dispute is legitimate, if ‘it is founded on a basis that is
reasonable under all the circumstances.’ [Citation.] ‘This is an objective standard.’
[Citation.] ‘Moreover, the reasonableness of the insurer’s decisions and actions must be
evaluated as of the time that they were made; the evaluation cannot fairly be made in the
light of subsequent events that may provide evidence of the insurer’s errors.’” (Zubillaga
v. Allstate Indemnity Co. (2017) 12 Cal.App.5th 1017, 1028, first italics added
(Zubillaga).)
A trial court may grant summary judgment based on the genuine dispute
rule “‘when it is undisputed or indisputable that the basis for the insurer’s denial of
benefits was reasonable—for example, where even under the plaintiff’s version of the
facts there is a genuine issue as to the insurer’s liability under California law. [Citation.]
. . . On the other hand, an insurer is not entitled to judgment as a matter of law where,
viewing the facts in the light most favorable to the plaintiff, a jury could conclude that the
insurer acted unreasonably.’ [Citation.] Thus, an insurer is entitled to summary
judgment based on a genuine dispute over coverage or the value of the insured’s claim
only where the summary judgment record demonstrates the absence of triable issues
[citation] as to whether the disputed position upon which the insurer denied the claim was
14
reached reasonably and in good faith.” (Wilson, supra, 42 Cal.4th at pp. 723-724, italics
added.)
The reasonableness of an insurer’s conduct is typically a question of fact
but can be decided as a matter “of law where the evidence is undisputed and only one
reasonable inference can be drawn from the evidence.” (Chateau Chamberay
Homeowners Assn. v. Associated Internat. Ins. Co. (2001) 90 Cal.App.4th 335, 346;
Fadeeff v. State Farm General Ins. Co. (2020) 50 Cal.App.5th 94, 102 [“Ordinarily,
reasonableness is a factual issue to be decided by a jury”].)
Blue Shield’s argument focuses on the one physician on the IMR panel that
agreed with its decision. There is no evidence challenging the reasonability of this
physician’s conclusion. So, Blue Shield contends that because an independent physician
agreed with its denial, there is a genuine dispute as to whether 157 monthly hours of
ABA treatment were medically necessary. However, for the genuine dispute rule to
apply, Blue Shield’s denial must be “‘founded on a basis that is reasonable under all the
circumstances.’” (Zubillaga, supra, 12 Cal.App.5th at p. 1028.) The undisputed record
must show Blue Shield fairly and thoroughly evaluated plaintiffs’ claim and its denial
“was reached reasonably and in good faith.” (Wilson, supra, 42 Cal.4th at pp. 723-724;
Bosetti v. United States Life Ins. Co. in City of New York, supra, 175 Cal.App.4th at pp.
1237-1238.)
The record does not show this. As set forth above, there are triable issues
as to the reasonableness of Blue Shield’s medical necessity guidelines. In other words,
there are questions of fact as to whether Blue Shield fairly evaluated plaintiffs’ claim and
reached its denial reasonably and in good faith. Plaintiffs’ claim was not fairly evaluated
if Blue Shield denied it based on unfair criteria. Although one physician on the IMR
panel arrived at the same conclusion as Blue Shield, that physician did not apply or
evaluate Blue Shield’s medical necessity criteria. As such, this evidence does not show
that Blue Shield acted reasonably as a matter of law.
15
To further illustrate, viewing the facts most favorably to plaintiffs, Blue
Shield arbitrarily reduces ABA treatment for autistic children after they turn seven years
old. Based on this criteria, Blue Shield reduced A.G.’s treatment from 157 hours to 81
hours per month after he turned seven without regard for his actual medical needs. It
then cited A.G.’s significant progress—progress the expert it now wishes to rely on said
did not exist—as a pretextual reason for this reduction. Under this version of the facts,
even if there is a genuine dispute as to the amount of treatment that is medically
7
necessary for A.G., that dispute is immaterial because the claim was not fairly evaluated.
Blue Shield did not reach this decision reasonably and in good faith. A health insurer is
not absolved of bad faith liability if it bumbles into a facially reasonable medical decision
using patently unfair medical necessity criteria. Even a stopped clock is right twice a
day.
Blue Shield cannot defeat plaintiffs’ bad faith claim at summary judgment
by only showing a reasonable dispute exists as to its ultimate decision. To be granted
summary judgment in this case, the undisputed record must show that Blue Shield’s
medical necessity guidelines are consistent with community medical standards. (See
Hughes, supra, 215 Cal.App.3d at pp. 845-846.) It does not. Issues of fact remain as to
whether Blue Shield has adopted unreasonable medical criteria for comprehensive ABA
therapy. Besides, there are other issues of fact as to whether Blue Shield fairly evaluated
plaintiffs’ claim.
First, Magellan’s separate statement cited evidence indicating it did not
review CARD’s report on A.G. prior to denying plaintiffs’ claim. Specifically, Magellan
cited deposition testimony from plaintiff Betgovargez describing a call she had with a
7
We provide no opinion on whether a genuine dispute actually exists as to the amount of
medically necessary ABA treatment that A.G. requires. This is not material to our
analysis.
16
CARD representative. Betgovargez testified that the CARD representative “met with Dr.
DeSilva . . . from Magellan, and [Dr. DeSilva] basically verbally told her that she wasn’t
going to approve the hours. And when she asked [Dr. DeSilva] why, she said -- she said,
‘Well, have you even read his report?’ [B]ecause she had turned in a big report. [Dr.
8
DeSilva] said ‘No.’” A jury could find that by ignoring CARD’s report, Magellan,
acting on behalf of Blue Shield, unfairly evaluated plaintiffs’ claim. (See, e.g., Zubillaga,
supra, 12 Cal.App.5th at pp. 1029-1030 [summary judgment denied where insurer
ignored physician’s treatments and recommendations].)
Second, Blue Shield’s stated reason for reducing A.G.’s treatment was at
odds with the concurring physician on the IMR panel. Defendants explained reduced
treatment was warranted because A.G. had already significantly improved with ABA
therapy. In contrast, the physician on the IMR panel found less treatment was
appropriate because A.G. had only shown limited improvement with ABA therapy,
indicating it had only been minimally effective. The stark differences between these
evaluations raise questions as to whether Blue Shield thoroughly and fairly evaluated
plaintiffs’ claim, especially in light of Betgovargez’s deposition testimony above.
For example, Magellan’s initial denial letter explained “[t]he clinical
information from your provider has shown measurable progress has been made since you
started ABA treatment with CARD on 5/14/12 and you no longer require 157
hours/month of ABA services. . . .” (Italics added.) It also stated, “[A.G.] has been
receiving ABA treatment since May 2012 with CARD and has shown a significant
improvement in behavior reduction goals, such that [he] no longer warrant[s] continuation
of the 157 hours per month of ABA therapy.” (Italics added.) Likewise, Blue Shield’s
denial of plaintiffs’ appeal stated, “[t]he principal reason [for the denial] is the medical
necessity of [the 157 hours of ABA treatment per month] has not been established.
8
There were no objections to this evidence.
17
Considering the improvement [A.G.] has made with his ABA therapy; . . . a reduced
allocation of service hours is sufficient in order to continue to train the social,
communication, and self-control skills which [he] currently requires.” (Italics added.)
On the other hand, the physician on the IMR panel that agreed with Blue
Shield found “[t]he requested services are not medically necessary for treatment of the
patient’s medical condition. In this case, there is documentation supporting limited
behavioral improvements with ABA therapy. His progress report notes positive but
limited behavioral improvement after over four years of intensive ABA therapy,
suggesting that he has had minimal response to ABA therapy. In this clinical setting, the
Health Plan’s authorization of [81 hours of therapy] is reasonable and medically
appropriate.” (Italics added.)
Third, there is evidence Blue Shield has engaged in a pattern of denying
medically necessary ABA treatment. Plaintiffs filed the declaration of Mary Rizk in
support of their opposition to both motions. Among other things, Rizk testified she has a
seven-year-old daughter with autism who received comprehensive ABA therapy from
CARD under a Blue Shield policy administered by Magellan. Blue Shield also denied
ABA treatment for her daughter. Similar to plaintiffs, Rizk submitted multiple appeals
through the IMR process, which resulted in the Department reversing Blue Shield’s
denials and ordering it to authorize the requested treatment. It could be inferred from this
testimony that plaintiffs’ experience was not unique. Rather, it was part of a larger
pattern in which Blue Shield unfairly denied ABA treatment by adopting an unreasonable
standard of medical necessity, forcing families to obtain necessary treatment through the
9
IMR process.
9
Blue Shield objects to the entire Rizk declaration on relevancy grounds. It argues
plaintiffs have not established Blue Shield’s conduct was substantially similar in this case
and the Rizk case. (See Moore v. American United Life Ins. Co. (1984) 150 Cal.App.3d
610, 625.) “[T]o establish ‘a pattern of unfair claims practices’ the antecedent practice
18
Fourth, there are issues of fact as to whether Blue Shield, through
Magellan, pressured CARD into adopting its unreasonable criteria. Such evidence would
further demonstrate an overall pattern by Blue Shield to unfairly reduce ABA therapy to
its insureds, including A.G. The record shows that in February 2017, Magellan gave
notice to CARD that it was terminating their provider agreement without cause (the
termination notice). Michelle Brennan-Cooke, a vice president of MHI, testified during
deposition that she met with a CARD representative about CARD’s performance a few
months prior to the termination notice. During this meeting, Brennan-Cooke told the
representative that CARD’s “average billing far exceeded other agencies,” and that
CARD averaged a higher number of hours of treatment and “ha[d] more expensive
case[s] in California than other ABA agencies.” Magellan thought CARD had several
children whose ABA services should be reduced or denied.
After receiving the termination notice, CARD asked Magellan to halt the
termination. Brennan-Cooke opined this was likely because Magellan was “a big payer
for [CARD]. They have a lot of Magellan members nationally.” Then, in May 2017,
Magellan and CARD entered into a letter agreement rescinding the termination. As part
of the agreement, “CARD agree[d] to follow all of Magellan’s Medical Necessary
Criteria and clinical policies.”
Brennan-Cooke’s testimony shows Magellan thought CARD was providing
too much treatment to its patients. This evidence, along with the timing of the
termination notice and the terms of the letter agreement, creates a reasonable inference
that Magellan threatened to terminate the provider agreement unless CARD adopted
must be substantially similar.” (Ibid.) We liberally construe the evidence in favor of
plaintiffs and resolve all doubts in their favor at summary judgment. (Doe v. Department
of Corrections & Rehabilitation, supra, 43 Cal.App.5th at pp. 732-733.) Based on the
current record, the facts in Rizk’s declaration are similar enough to warrant admissibility
for purposes of this appeal: Rizk’s daughter is seven years old, was treated by CARD,
was denied medically necessary ABA therapy by Blue Shield, and had the denials
reversed through the IMR process.
19
Magellan’s restrictive medical necessity guidelines. This inference is further supported
by the Rizk and Ghazarian declarations. Rizk stated that CARD began reducing the
amount of ABA hours for her daughter because it was afraid “it would lose its
participating provider contract with Blue Shield and . . . Magellan.” Ghazarian likewise
averred that defendants “pressured CARD to reduce ABA claims, reduce appeals, and
10
limit IMRs, at the risk of losing its participating provider agreement.”
E. Liability of MHI
MHI denies liability as to the remaining claims for intentional interference
with contract and violation of the UCL, contending the undisputed evidence shows
Human Affairs, its subsidiary, administered the policy. MHI maintains there is no
evidence showing that it can be held liable for Human Affairs’ actions. We disagree.
There is sufficient evidence in the record to create issues of fact as to MHI’s vicarious or
direct liability.
First, the medical necessity guidelines at issue were developed by MHI.
Brennan-Cooke testified to this during her deposition, and the guidelines state they are
copyrighted by MHI. Similarly, in the letter agreement rescinding the termination of
CARD’s provider agreement, CARD agreed to follow “Magellan’s Medical Necessary
Criteria,” with “Magellan” being defined to include MHI.
Second, there is evidence MHI was involved in the denial of plaintiffs’
claim. The initial letter denying plaintiffs’ claim was signed by Dr. DeSilva, who
appears to have been employed by MHI.
10
Blue Shield did not object to this portion of Ghazarian’s declaration, and its only
objection to this portion of the Rizk declaration was relevance. We find this evidence to
be relevant and consider it in our analysis. (Code Civ. Proc., § 437c, subd. (b)(5);
McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 956-957.)
20
Third, as set forth above, there are issues of fact as to whether MHI
pressured CARD into adopting the medical necessity standards at issue. The termination
notice was on MHI’s letterhead. Brennan-Cooke, who met with CARD about its
performance prior to the termination notice, was a vice president at MHI. Finally, MHI is
a party to the letter agreement rescinding the termination.
F. Intentional Interference with Contract
“The elements of a cause of action for intentional interference with
contractual relations are ‘(1) the existence of a valid contract between the plaintiff and a
third party; (2) the defendant’s knowledge of that contract; (3) the defendant’s intentional
acts designed to induce a breach or disruption of the contractual relationship; (4) actual
breach or disruption of the contractual relationship; and (5) resulting damage.’”
(Redfearn v. Trader Joe’s Co. (2018) 20 Cal.App.5th 989, 997.) “To state a claim for
disruption of a contractual relation, the plaintiff need not show the defendant induced an
actual or inevitable breach of the contract. It is sufficient to show the defendant’s
conduct made the plaintiff’s performance, and inferentially enjoyment, under the contract
more burdensome or costly.” (Golden West Baseball Co. v. City of Anaheim (1994) 25
Cal.App.4th 11, 51.)
In the trial court, plaintiffs argued they had a written contract with CARD
with which defendants interfered. The trial court found no such contract existed and so
the claim failed. On appeal, plaintiffs argue that defendants interfered with an implied
contract that plaintiffs had with CARD. We will not consider this theory since it was
presented for the first time on appeal and the existence of an implied contract is a
question of fact, not law. (Unilab Corp. v. Angeles-IPA (2016) 244 Cal.App.4th 622,
636; Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847.)
Besides, this argument would fail even if considered. Though plaintiffs are
vague on the specific terms of the implied contract, the gist of it seems to be that
21
plaintiffs would pay out of pocket for any treatment that defendants did not authorize.
Plaintiffs allege defendants disrupted this contract by denying medically necessary ABA
treatment for their son and pressuring CARD to adopt defendants’ medical necessity
guidelines. These actions resulted in actual disruption of the implied contract, they argue,
because CARD reduced A.G.’s ABA therapy. But this assertion is belied by the
undisputed record, which shows CARD never reduced A.G.’s treatment after defendants
denied plaintiffs’ claim.
More fundamentally, even if defendants improperly refused to cover
medically necessary treatment, plaintiffs have not explained how this interfered with their
ability to obtain additional therapy by paying out of pocket. Defendants’ denial did not
prevent plaintiffs from personally paying for uncovered treatment. To the contrary, the
denial of treatment was the triggering condition for plaintiffs’ obligation to personally
pay CARD. Nor did the denial make plaintiffs’ performance under the implied contract
more burdensome or costly. Plaintiffs never had to perform. It is undisputed that Blue
Shield provided the treatment, by order of the Department, before plaintiffs incurred any
out-of-pocket expenses.
G. UCL Claim
Defendants each made several arguments as to plaintiffs’ UCL claim. We
are not persuaded by any of them and conclude that summary judgment was wrongly
granted as to this claim.
1. Unfair competition
Both defendants contend that plaintiffs have failed to establish “unfair
competition” under the UCL. Not so. “Unfair competition” includes “any unlawful,
unfair or fraudulent business act or practice.” (Bus. & Prof. Code, § 17200.) “[B]ad faith
22
insurance practices may qualify as any of the three statutory forms of unfair
competition.” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 380.)
Since plaintiffs’ bad faith claim against Blue Shield survives summary
judgment, its UCL claim against Blue Shield must too. Although no bad faith claim was
asserted against Magellan, it is inextricably intertwined with the conduct underlying the
bad faith claim: (1) it created the medical necessity guidelines at issue in this case; (2) it
initially denied plaintiffs’ claim while acting as Blue Shield’s mental health service
administrator; and (3) it pressured CARD into adopting its medical necessity guidelines.
Therefore, the UCL claim against Magellan must also survive.
2. Standing
Next, Magellan claims that plaintiffs lack standing. This argument is
unconvincing. Under the UCL, “private standing is limited to any ‘person who has
suffered injury in fact and has lost money or property’ as a result of unfair competition.”
(Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 788.) The purpose of this rule is “to
confine standing to those actually injured by a defendant’s business practices and to
curtail the prior practice of filing suits on behalf of ‘“clients who have not used the
defendant’s product or service, viewed the defendant’s advertising, or had any other
business dealing with the defendant . . . .”’” (Ibid.) “There are innumerable ways in
which economic injury from unfair competition may be shown.” (Kwikset Corp. v.
Superior Court (2011) 51 Cal.4th 310, 323.) A party has standing when they have
“expended money due to the defendant’s acts of unfair competition.” (Hall v. Time Inc.
(2008) 158 Cal.App.4th 847, 854.) For example, a “plaintiff may . . . be required to enter
into a transaction, costing money or property, that would otherwise have been
unnecessary.” (Kwikset Corp., at p. 323.)
Due to the wrongful denial of their insurance claim, plaintiffs retained and
paid an attorney to assist them with the IMR process. This is sufficient to establish
23
standing under the UCL. Plaintiffs hired an attorney because of defendants’ denial of
their claim. The transaction would have been unnecessary without defendants’ conduct.
Magellan contests standing by baselessly accusing Ghazarian of filing a
“sham declaration [that] fatally contradicts his deposition testimony.” It cites a portion of
Ghazarian’s declaration that states “‘[i]n order to appeal effectively, and to file an
effective IMR, [plaintiffs] retained and paid an attorney for this process . . . .’” Magellan
then contends “at deposition, which was prior to the signing of [Ghazarian’s] declaration
. . . [Ghazarian] unequivocally testified that he prepared the IMR himself. [Citation.]
This testimony belies [Ghazarian’s] claim that he paid an attorney to assist him in the
IMR process.”
At the outset, the fact that Ghazarian drafted the IMR petition himself does
not preclude him from retaining an attorney to assist with the process. These are not
mutually exclusive actions. More troubling, however, is that the very portion of the
deposition transcript on which Magellan relies reveals this argument lacks merit:
“Q: Okay. Did your attorney -- was your – were you already working with
an attorney by the time of the I.M.R.?
“A: I believe I had contacted [my current counsel] by then, yes.
“Q: Okay. Did you prepare the I.M.R. yourself?
“A: Yes.” (Italics added.)
Magellan cites the final two lines of this exchange but curiously ignores the preceding
question.
Similarly, other portions of the transcript from Ghazarian’s deposition show
that he retained his current counsel, Randy Curry, after Blue Shield denied his appeal and
prior to the IMR. Ghazarian testified that after he received the June 15, 2016 denial letter
from Blue Shield, “one of the things I did at the time was reach out to [Mr. Curry] . . . .
[¶] . . . [¶] . . . Ultimately [plaintiffs] decided to do an I.M.R. [¶] As well as I think,
[Mr. Curry], you also prepped a letter for us as part of this.”
24
3. Injunctive Relief
Blue Shield also argues the UCL claim should be dismissed because
plaintiffs have an adequate remedy at law, specifically, money damages. In response,
plaintiffs state they seek injunctive relief, and they insist the adequate-remedy-at-law
requirement does not apply to injunctions sought under the UCL. We need not address
the latter component of plaintiffs’ argument. There are issues of fact as to whether
plaintiffs have an adequate remedy at law. As explained above, there are triable issues as
to whether defendants unfairly denied plaintiffs claim by using unreasonable medical
necessity guidelines. There is no evidence these guidelines have been changed. If the
guidelines are found to be unreasonable, damages may be inadequate. They would not
protect plaintiffs from future wrongful denials of benefits.
Blue Shield further contends plaintiffs may not seek broad injunctive relief
under the UCL without filing a class action, which they did not do. This argument was
rejected by our Supreme Court. In McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, the
Court held that a plaintiff bringing a private action for public injunctive relief need not
comply with class action requirements. (Id. at pp. 959-960.) As explained in McGill,
“‘an injunction’ is ‘the primary form of relief available under the UCL to protect
consumers from unfair business practices.’” (Id. at p. 959.) Among other things, a class
action requirement “would largely eliminate the ability of a private plaintiff to pursue
such relief, because class certification requires ‘the existence of both an ascertainable
class and a well-defined community of interest among the class members’ [citation], and
‘“the general public . . .” fails to meet’ this requirement . . . .” (Id. at p. 960.)
H. Punitive Damages
Since the trial court granted summary judgment, it did not rule on
Magellan’s request for summary adjudication of plaintiffs’ claim for punitive damages.
Magellan renews this request on appeal. We deny it, finding issues of fact exist.
25
Plaintiffs may recover punitive damages if they can show by clear and
convincing evidence that Magellan “has been guilty of oppression, fraud, or malice.”
(Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended “to cause injury
to the plaintiff or despicable conduct which is carried on by the defendant with a willful
and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd.
(c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and
unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd.
(c)(2).) Finally, “‘[f]raud’ means an intentional misrepresentation, deceit, or concealment
of a material fact known to the defendant with the intention on the part of the defendant
of thereby depriving a person of property or legal rights or otherwise causing injury.”
(Civ. Code, § 3294, subd. (c)(3).)
Based on the evidence set forth above, we cannot find as a matter of law
that plaintiffs are barred from obtaining punitive damages against Magellan. A jury must
determine whether there is clear and convincing evidence that Magellan acted
maliciously, oppressively, or fraudulently under Civil Code section 3294.
26
III
DISPOSITION
The judgments in favor of defendants are both reversed. On remand, the
trial court is directed to grant summary adjudication in favor of defendants as to
plaintiffs’ cause of action for intentional interference with contract and to deny summary
adjudication as to the other claims. Plaintiffs are entitled to their costs on appeal.
MOORE, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
THOMPSON, J.
27 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3408138/ | This is an appeal from the district magistrate of Honolulu on points of law. The plaintiff sued the defendants for the sum of $314, alleged to be due for the rent of certain premises described in the complaint. The defendants filed a plea to the jurisdiction. The ground of the *Page 161
plea is that in the hearing of the action the title to the property described would be brought in question. In conformity with Rule 14 of this court the defendants filed in support of their plea the following affidavit: "David Kaihe and Mary Kaihe being first duly sworn on their oaths each for himself deposes and says: That in the foregoing suit for alleged rents on Lot 16, Block 4 of the `Kapahulu Tract,' the title to said property will come in question, and that the source, nature and extent of the title claimed by the defendants to said land is as follows: When said defendants went into possession of said land they did not go into possession as tenants of the plaintiff, but went into possession under an oral agreement entered into between the plaintiff and the defendant Mary Kaihe, whereby the plaintiff agreed to sell and the defendant Mary Kaihe agreed to purchase the land in question for the sum of forty-seven hundred fifty dollars ($4750.00); that at the time said agreement was entered into the plaintiff had in his hands moneys belonging to the defendant Mary Kaihe, the proceeds of the sale of Lots 61 and 62 of `Waialae Heights' as shown on registered map No. 30, said sum of money so in the hands of said plaintiff amounting to approximately one thousand dollars ($1000.00), and it was agreed by and between the plaintiff and the said defendant Mary Kaihe that the said sum of money should be applied to the purchase price agreed upon, and that the remainder of said purchase price should be paid to the plaintiff by the defendant Mary Kaihe at the rate of forty dollars ($40) per month. Affiants further say that the defendant Mary Kaihe has made sundry payments to the plaintiff on account of said purchase price amounting to approximately four hundred dollars ($400.00), and that since said original entry upon said land by said defendants, they being husband and wife, has been under and by *Page 162
virtue of said agreement of purchase and not otherwise, and they have continued to occupy under said agreement, and have made valuable improvements thereon."
The district magistrate sustained the plea whereupon the plaintiff appealed to this court. The points of law upon which the appeal was taken involve the question whether the affidavit above quoted discloses that the defendants had any claim of title to the land. If it does not it presents no question of title that the district magistrate would be required to adjudicate in the trial of the suit for rent. So far as the defendant David Kaihe is concerned it appears that he has no interest in the land of any sort, either legal or equitable. He was not a party to the contract described in the affidavit and his occupancy of the premises is solely as the husband of the other defendant, Mary Kaihe. It is shown by the affidavit that Mary Kaihe claims the right to occupy the premises because of an oral contract that was entered into between herself and the plaintiff by which the plaintiff agreed to sell and she agreed to purchase the land in question for $4750. It also appears from the affidavit that in accordance with the agreement $1000 of the purchase price was paid when the agreement was made. It also appears that under the agreement Mary Kaihe was to pay the balance of the purchase price in monthly installments of $40 each and that of this balance she has paid at sundry times the sum of $400. It does not appear from the affidavit that the agreement therein described was in force at the time the plea to the jurisdiction was interposed. The date of the agreement is not given nor is it alleged that Mary Kaihe had performed all the conditions imposed upon her by the contract. Certainly there is no presumption of the continuance of the contract. If at the time the plea to the jurisdiction was interposed the contract had been rescinded by consent of the parties *Page 163
and was no longer in force no claim of interest or title to the property could be predicated upon it. The position of the defendants in this case would be the same as if no contract had ever been made. If the defendants wished to successfully challenge the jurisdiction of the district magistrate it was incumbent upon them to show affirmatively by their affidavit that their claim of title was based on a contract that was still in force and effect. If the facts do not permit them to include this recital in their affidavit without involving themselves in consequences that might prove to be serious they have no ground upon which to oust the district magistrate of jurisdiction.
The judgment appealed from is reversed and the case remanded to the district magistrate with instructions to take such proceedings as may be necessary not inconsistent with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1715047/ | 518 S.W.2d 638 (1975)
STATE of Missouri ex rel. ST. FRANCOIS COUNTY SCHOOL DISTRICT R-III, Appellant,
v.
C. A. LALUMONDIER et al., Respondents.
No. 58586.
Supreme Court of Missouri, Division No. 1.
February 10, 1975.
*639 Charles W. Medley, Gary E. Stevenson, Farmington, for appellant.
W. Oliver Rasch, Bonne Terre, John S. Marsalek, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for respondent St. Joe Minerals Corp.
HOLMAN, Judge.
Relator, St. Francois County R-III School District, filed this certiorari proceeding in an effort to obtain a review of the action of the St. Francois County Board of Equalization (hereinafter referred to as the "Board") in failing to increase the assessed valuation of certain real property for the year 1973. The properties involved are 99 tracts owned by St. Joe Minerals Corporation that are located in relator's district. The trial court sustained motions to dismiss, filed by respondents, on the basis that relator did not have standing to seek a review of the action of the Board. Relator has duly appealed. We have appellate jurisdiction because a construction of the revenue laws of the state is involved. We affirm.
The petition of relator alleged that "Prior to August 7, 1973, the School District . . . discovered that 99 of the St. Joe tracts within the boundaries of the School District were assessed at approximately $285,000 having been reduced from an assessment of $898,160, in 1972. That the true value of said real estate as of January 1, 1973, was $2,049,073. . . . that such discrepancy was reported to the Board and on August 7, 1973, C. A. Lalumondier, Jeff Matkin, Emmett Shelley, and Elliott Straughan met as the St. Francois County Board of Equalization and thereafter announced that the Board had reviewed the assessment and by a secret vote of 2 to 2, voted not to increase the assessment and therefore, because there was no majority vote, the Board could not increase the original assessment as made by the assessor.
"The School District then requested that the full five members of the Board of Equalization be convened and vote on the question of whether the above 99 tracts of real estate were assessed at their true value, and that any member of the Board who owned stock or had an interest in St. Joe;. . . refrain from voting.
"That thereafter a meeting of the full Board of Equalization was planned for August 8th and 9th, 1973, to pass on the question of whether the St. Joe assessment was correct but before the Board had such meeting it was announced on August 9th, 1973, that the Board had recessed for the year 1973.
"The School District has since learned that two members of the Board of Equalization who voted on the question of the St. Joe assessment had a financial interest in St. Joe and had other conflicts and personal interest in St. Joe, and owned stock in St. Joe which would prevent them from fairly exercising their judgment as to the true value of the St. Joe real estate.
"That an assessment of $295,000 on the St. Joe real estate mentioned herein is not the true value of such real estate and is unreasonably low, and is contrary to the overwhelming weight of the evidence and *640 was arbitrary and constituted an abuse of discretion.
"That the decision of the County Board of Equalization not to increase the St. Joe Assessment for 1973, was void or voidable. . .
"The decision of the Board is not subject to administrative review and there is no other provision for inquiry into or review of such decision." The prayer sought an adjudication concerning the legality of said proceedings and for general relief.
The General Assembly has provided a comprehensive plan for the assessment and equalization of the value of property for ad valorem taxes. The statutes, in part, provide the following: Section 137.115[1] (prior to amendment effective December 31, 1974) provided that the assessor should, prior to June 1st, assess all taxable real and tangible personal property at its true value in money. It is provided in Section 137.275 that "Every person who thinks himself aggrieved by the assessment of his property may appeal to the county board of equalization, in person, by attorney or agent, or in writing." Section 138.010(1) provides that "In every county in this state, except as otherwise provided by law, there shall be a county board of equalization consisting of the judges of the county court, the county assessor, the county surveyor. . ." Section 138.030(2) states that "The board shall hear complaints and equalize the valuation and assessments upon all real and tangible personal property taxable by the county so that all the property shall be entered on the tax book at its true value." And in Section 138.050 it is specified that the board ". . . shall raise the valuation of all tracts or parcels of land and all tangible personal property as in their opinion have been returned below their real value . . . the board shall meet on the second Monday in August in each year to hear any person relating to any such increase in valuation; [and] shall reduce the valuation of such tracts or parcels of land or any tangible personal property which, in their opinion, has been returned above its true value as compared with the average valuation of all the real and tangible personal property of the county." Section 138.060 provides that "The county board of equalization shall, in a summary way, determine all appeals from the valuation of property made by the assessor, and shall correct and adjust the assessment accordingly."
Appeal to the state tax commission is provided for in Section 138.430(2) as follows: "Every owner of real property or tangible personal property and every merchant and manufacturer shall have the right of appeal from the local boards of equalization under rules prescribed by the state tax commission. Said commission shall investigate all such appeals and shall correct any assessment which is shown to be unlawful, unfair, improper, arbitrary or capricious." It is well settled that a taxpayer who appeals to the state tax commission and is aggrieved by its decision may obtain a review by the circuit court. Rules 100.03 to 100.07, V.A.M.R., inclusive. And if aggrieved by the circuit court judgment may obtain appellate review.
In the event a property owner appeals from the decision of the board the county may appear before the tax commission and seek to uphold the valuation fixed by the board. If the commission grants relief to the property owner it is now clear that the county may obtain a review of that decision in the circuit and appellate courts. In re St. Joseph Lead Company, 352 S.W.2d 656 (Mo.1961).
The precise question presented on this appeal is whether in a suit of this nature a school district may obtain a review of a decision of the county board of equalization which failed to increase an alleged underassessment of the real estate of a taxpayer. In that connection this court in the St. Joseph case, supra, said that *641 ". . . the legislature may grant the right of appeal or review of tax assessments to either the taxpayer or the state (or one of its political units), and it may also limit or deny the right to either the taxpayer or the state." 352 S.W.2d 659. It appears in the transcript that relator appealed this decision to the state tax commission but that the commission dismissed the appeal for the reason that the statute only provides a right of appeal to a property owner. While the correctness of that action is only incidentally before us we think it is appropriate to say that we agree therewith because such was in accord with the express statutory provision.
We have concluded that relator did not have standing to obtain a review in this action and that the court ruled properly in dismissing the petition.
In connection with the question before us it may be of interest to note that the Commission took no affirmative action in regard to these properties. The assessments were made by the assessor and the Commission merely failed to increase the amounts. "Certain recognized principles in the law of taxation may well be noted. Assessments and the valuations of real estate for taxation are never subject to exact ascertainment, and they are, at best, matters of opinion and estimate on the part of the taxing officials . . . There is a presumption of validity and of good faith in the actions of taxing officials, and of the correctness of assessments." May Department Stores Co. v. State Tax Commission, 308 S.W.2d 748, 759 (Mo.1958).
Relator no longer contends that it has a right to appeal under Section 138.430(2) or to a review under Rules 100.03 to 100.07 inclusive. It is its contention here that the constitution provides a right of review for all administrative decisions and that a review in this type of case may be obtained by certiorari under the provisions of Rule 100.08 which is substantially the same as Section 536.150.
Section 22, Art. V, Mo.Const., V.A.M.S., reads as follows: "All final decisions, findings, rules and orders of any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law; and such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record."
Rule 100.08 contains the following: "(a) Review by InjunctionOriginal Writ or Other ActionUncontested Cases. When any administrative officer or body existing under the constitution or by statute or by municipal charter or ordinance shall have rendered a decision which is not subject to administrative review, determining the legal rights, duties or privileges of any person, including the denial or revocation of a license, and there is no other provision for judicial inquiry into or review of such decision, such decision may be reviewed by suit for injunction, certiorari, mandamus, prohibition or other appropriate action, and in any such review proceeding the court may determine the facts relevant to the question whether such person at the time of such decision was subject to such legal duty, or had such right, or was entitled to such privilege, and may hear such evidence on such question as may be properly adduced, and the court may determine whether such decision, in view of the facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary or capricious or involves an abuse of discretion; and the court shall render judgment accordingly, and may order the administrative officer or body to take such further action as it may be proper to require; but the court shall not substitute its discretion for discretion legally vested in such administrative officer or body, and in cases where the granting or withholding of a *642 privilege is committed by law to the sole discretion of such administrative officer or body, such discretion lawfully exercised shall not be disturbed.
"(b) Not Applicable to Contested Cases. Nothing in this Rule . . . shall apply to contested cases reviewable pursuant to Rules 100.04 to 100.08.
"(c) Powers Not Impaired. Nothing in this Rule shall be construed to impair any power to take summary action lawfully vested in any such administrative officer or body, or to limit the jurisdiction of any court or the scope of any remedy available in the absence of this section."
The question presented is one of first impression in this state. No case has been cited (and we have found none) where the state or any political subdivision thereof has attempted to appeal or to otherwise obtain a review of action taken by a county board. Cases in other states, however, support our decision. An annotation in 5 A.L.R. 2d 576 states the general rule as follows: "The right of the public, as such, or as represented by the state, a county, a city, or a township or the boards or officers thereof, to complain of the underassessment or nonassessment of property has been raised in a number of cases. In each case the decision is one of statutory construction, so that no fundamental generalizations can be made. In fact, in Chicago, R. I. & G. R. Co. v. State (1922; Tex. Civ.App.) 241 S.W. 255 (affd. (1924; Tex.) 263 S.W. 249), the court observed that there was no statutory provision giving to the state and the public a remedy in the trial courts where individual or corporate property had been grossly undervalued or underassessed by the owner, assessors, and county boards of equalization, and said that in order for the public to question and have the courts review individual assessments and actions of official boards in respect thereto, there must be some statutory provision authorizing it. . . ."
The following cases clearly support the rule that in the absence of express statutory authorization no appeal or other review is provided for political subdivisions of the state in regard to alleged underassessments: Manchester v. Furnald, 71 N.H. 153, 51 A. 657 (1901), Blogie v. State Tax Commission, 111 N.H. 246, 279 A.2d 603 (1971), Central Sch. Dist. #1 v. Rochester Gas & Elec. Corp., 61 Misc. 2d 846, 306 N.Y.S.2d 765 (1970), Application of Bd. of Ed. of Cent. Sch. Dist. #1, etc., 61 Misc. 2d 838, 306 N.Y.S.2d 833 (1969), and State v. Little, 94 Ark. 217, 126 S.W. 713 (1910). By analogy it is also interesting to note that in Stevens v. Fox Realty Corporation of California, 23 Cal. App. 3d 199, 100 Cal. Rptr. 63 (1972), as well as in the Cent. Sch. Dist. cases, supra, it is held that a taxpaying property owner could not litigate in an effort to obtain a higher assessment on the property of another taxpayer. The court in Stevens indicated that when such a person appears before the board to make complaint he should be considered a witness rather than a party.
An example of a statute granting the right relator seeks is the following South Dakota statute: "Any person, firm or corporation, public or private, or any taxing district or governmental subdivision or agency interested, feeling aggrieved by the action of the county board of equalization relative to the assessment of its property may, within thirty days after receiving notice of the decision of such board, appeal to the state board of equalization for a determination of such grievance." City of Sioux Falls v. State Board of Equalization, 203 N.W.2d 419, 420 (S.D.1973). In that case the statute was construed as not permitting a complaint by one taxpayer concerning the low assessment of another taxpayer's property but did authorize a governmental subdivision to appeal from a low valuation on any property located in its district.
As we have stated, there is no statutory provision for an appeal by relator in this instance. The only remaining question is whether Section 536.150 (Rule 100.08) should be construed as authorizing a review *643 in this sort of case. It will be noted that the constitutional section in question provides for a review of decisions that "affect private rights" and that Section 536.150 provides for a court review of decisions "determining the legal rights, duties or privileges of any person . . ." We do not think that the right, if any, of relator in this case is encompassed within either of the quoted provisions. The cases we have found that discuss private rights are those that relate to personal claims such as the right to welfare benefits or to a pension and do not include public rights of the nature here involved. Hill v. State Dept. of Public Health and Welfare, 503 S.W.2d 6[2] (Mo.1973), State ex rel. v. Murphy, 224 S.W.2d 68[8] (Mo.1949) and Kansas City v. School Dist. of Kansas City, 356 Mo. 364, 201 S.W.2d 930 (1947). Moreover, in the May Department Stores case, supra, we held that a landowner could not obtain a review under Section 536.150 of the annual order of inter-county equalization made by the State Tax Commission because the section ". . . clearly comprehends only decisions involving individual rights and interests; this is indicated by the use of such terms as `any person,' the `revocation of a license,' and `such person' . . ." 308 S.W.2d 756. The case of In Re Roadway in Section 21, Township 60, Range 6W., 357 S.W.2d 919 (Mo.1962) is also applicable. Therein the county court made an order vacating a portion of a roadway and the remonstrants sought to appeal and the circuit court dismissed the appeal. On appeal to this court we held that the proceeding affected only the public interest and not private rights; that the statute (now 536.150) relates only to decisions involving individual rights and interests and that appellants were not entitled to a review thereunder.
We have the view that if the General Assembly had intended to provide a review of alleged underassessments at the request of a governmental subdivision it would have so provided in Section 138.430(2) which provides for an appeal by property owners. No doubt such was originally omitted on the theory that public officials would adequately protect the interests of the state and its subdivisions and hence it was only necessary to provide an appeal for property owners who considered the valuation of their property to be excessive. We recognize that relator has a vital interest in the assessment valuation of property located in its district. In the situation presented it may be that the legislature should review the matter and give consideration to an appropriate amendment of the section. Until appeal or other review procedure is provided, however, we must rule that school districts do not have standing to obtain a review of alleged underassessment of property by the county board.
Judgment affirmed.
All concur.
NOTES
[1] All statutory references are to V.A.M.S. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4234855/ | Order Michigan Supreme Court
Lansing, Michigan
January 5, 2018 Stephen J. Markman,
Chief Justice
Brian K. Zahra
156708(56) Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
MATTHEW T. THIEL and NIKOLE M. THIEL, Elizabeth T. Clement,
Plaintiffs/Counterdefendants- Justices
Appellees,
and
WILLIAM TRAYWICK and MARCIA
TRAYWICK,
Intervening Plaintiffs/
Counterdefendants-Appellees,
SC: 156708
v COA: 333000
Allegan CC: 15-055184-CK
DAVID L. GOYINGS and HELEN M.
GOYINGS,
Defendants/Counterplaintiffs-
Appellants.
__________________________________________/
On order of the Chief Justice, the motion of the Modular Home Builders
Association to file a brief amicus curiae is GRANTED. The amicus brief submitted on
December 28, 2017, is accepted for filing.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
January 5, 2018
Clerk | 01-03-2023 | 01-08-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/2919422/ | v01313.cp1
NUMBER 13-01-313-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________
IN RE: B.J.B., MINOR CHILD
___________________________________________________________________
On appeal from the 377th District Court of Victoria County, Texas.
__________________________________________________________________
O P I N I O N
Before Justices Dorsey, Yañez and Rodriguez
Opinion by Justice Yañez
Appellant, Christy Franklin, appeals from an order terminating her parent-child relationship with her son, B. J. B., born
October 12, 1997. By a single issue, appellant contends she was deprived of her right to counsel because the trial court
failed to appoint an attorney ad litem for her until almost six months after the Texas Department of Protective and
Regulatory Services ("the Department") filed its petition to terminate the parent-child relationship. We affirm.
Section 107.013(a) of the Texas Family Code requires the trial court to appoint an attorney to represent an indigent parent
who opposes a suit seeking termination of his or her parent-child relationship. Tex. Fam. Code Ann. § 107.013(a) (Vernon
Supp. 2001). However, as this Court has noted, the statute does not establish a time frame as to when appointment must
occur. See id.; In the Interest of J. R. P., 55 S.W.3d 147, 149 (Tex. App.-Corpus Christi 2001, no pet. h.). Thus, we
analyze appellant's issue in light of whether she was provided reasonable access to counsel. See J. R. P., 55 S.W.3d at 150
(citing In re B. R., 950 S.W.2d 113, 115-16 (Tex. App.-El Paso 1997, no writ); Ybarra v. Tex. Dep't of Human Svcs., 869
S.W.2d 574, 580 (Tex. App.-Corpus Christi 1993, no writ)).
Here, the Department filed its original petition for termination on September 17, 1999. The record does not reflect that
appellant requested appointment of counsel at that time. Appellant was appointed counsel on March 3, 2000,
approximately six months after the petition for termination was filed. The hearing on the termination of appellant's parental
rights was held on March 5, 2001, a year after appellant was provided with appointed counsel.
Because appellant was provided with court-appointed counsel for a year prior to the termination of her parental rights, we
hold that the trial court complied with the requirements of section 107.013(a). See id. (holding no violation of section
107.013 where counsel was appointed twenty months after petition filed but eighteen months before final hearing on
termination); see also In re M. J. M. L., 31 S.W.3d 347, 354 (Tex. App.-San Antonio 2000, pet. denied) (holding no
violation where counsel appointed six months after termination case began).
The Department also contends appellant waived any right to appellate relief by failing to object or request a continuance
regarding the timing of the appointment. The record reflects that appellant raised the issue in her motion for new trial,
which was denied by the trial court. Because we have determined that the trial court did not err regarding the timing of the
appointment, we do not address the Department's argument concerning waiver. Tex. R. App. P. 47.1.
The judgment of the trial court is AFFIRMED.
LINDA REYNA YAÑEZ
Justice
Do not publish. Tex. R. App. P. 47.3.
Opinion delivered and filed this the
6th day of December, 2001. | 01-03-2023 | 09-11-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3996894/ | This action was brought to quiet title to real property. The defendants, in their answer, pleaded an affirmative defense, which was in effect a cross-complaint, in which they asked that title be quieted in them to a certain interest in the property. To the cross-complaint, a demurrer was interposed and sustained. The defendants refused to plead further, and elected to stand upon their pleading. From the judgment entered, dismissing the cross-complaint and quieting title in the plaintiff to the lands in controversy, the defendants appeal.
The facts stated in the cross-complaint may be summarized *Page 684
as follows: July 14, 1906, Fred W. Benjamine and Issachar N. Robinson entered into a written contract, by which Robinson was to select, cruise and purchase desirable timber lands in this state. Benjamine was to furnish the money to make the purchases. Title was to be taken in the name of Benjamine. In pursuance of this contract, Robinson selected, cruised and purchased certain lands in Jefferson county for which Benjamine paid and the title was taken in his name. The contract provided that, when the lands were sold, Benjamine should be reimbursed for his outlay, together with interest, and the balance, if any, should be equally divided between them. The contract contains this provision:
"The lands so purchased shall be held by the party of the first part (Benjamine) in his name, until the parties of the first and second part (Robinson) shall agree upon the sale thereof."
There is a further provision that Benjamine should execute and deliver to Robinson, from time to time, declarations of trust which would "assure the party of the second part (Robinson) his interest in said lands and in the proceeds thereof."
This contract, on June 13, 1913, was duly recorded in the auditor's office of Jefferson county. On the same day, there was recorded in the same office a declaration by Robinson in which he refers to the contract of July 14, 1906, and describes the lands purchased thereunder.
The appellants claim an interest in the lands by, through and under Robinson. Prior to the institution of this suit, the respondent had purchased the lands from Benjamine and had received a conveyance therefor. The appellants refused to ratify the sale or accept any portion of the proceeds thereof.
[1] The controlling question is whether, under the contract of July 14, 1906, Benjamine had the right to *Page 685
convey the lands free and clear of any interest of the appellants who claim under Robinson. The answer to this question depends upon whether, under the contract, Robinson had an interest in the lands. If he had no interest in the lands and his interest was solely in the profits, then Benjamine had a right to make the conveyance. If, under the contract, Robinson had an interest in the lands, then Benjamine could not make a conveyance and defeat the interest of those claiming under Robinson. The contract, as above stated, expressly provided that the lands should be held by Benjamine in his name until he and Robinson "shall agree upon the sale thereof." The law appears to be that, under a contract which provides that one party shall furnish the money and the other shall do the work in acquiring and disposing of lands, the one furnishing the labor has an interest in the lands when, under the contract, they cannot be sold except under the joint direction of both parties. In Dierks Sons Lumber Co. v. Bruce, 239 S.W. (Mo.) 133, it is said:
"The law is well settled that, where the title to property purchased or acquired in connection with a joint adventure or the profits thereof is in the name of one of the parties, he holds it in trust for his associates according to their proportionate shares. If he paid the purchase price with his own money, then the question whether he is the exclusive owner of the land, or whether his associates have an interest in it, depends on the agreement between them. If the agreement merely provides that they are to share only the profits for services to be rendered, they have no interest in the land but only in the profits. Where, however, the land cannot be disposed of except under the joint direction of both parties, or without the consent of both, it has been held that the associates of him who has the title also have an interest in the land itself."
In the case of Bonner v. Cross County Rice Co., 113 Ark. 54,167 S.W. 80, the contract provided that the *Page 686
"lands are to be handled and disposed of in any way agreed upon between the parties hereto, and the net profits are to be divided equally between the said parties." It was there said:
"Here the contract provided that the lands were to be disposed of under the joint direction of all the parties to the contract. This gave Bonner something more than a mere interest in the profits after the lands were sold. It gave him an interest in the lands themselves."
The contract in the case now before us having expressly provided that the lands could not be sold except upon the agreement of both the parties, gave Robinson an interest in the lands. He having had an interest in the lands, those claiming by, through and under him would have the same interest until it had been legally divested in some way.
The case of Houghton v. Callahan, 3 Wn. 158, 28 P. 377, is not controlling. There the court was called upon to construe a writing which was in the form of a letter and it was held that under that writing it was not the intention of the parties to give the one purchasing the lands, but who did not furnish the money, any interest therein, but only a right to the profits. The language of the letter there mentioned was distinctly different from the language of the contract in the present case. Here the writing is clear and unequivocal and does not call for a construction for the purpose of ascertaining the intent of the parties, the question being merely the application of the law to the plain language of the contract.
As further indicating the intention of the parties, the contract recites, as above stated, that declarations of trust shall be executed showing Robinson's "interest in said lands." The contract having given Robinson an interest in the lands, it follows that the appellants have an interest which the respondent could not disregard. *Page 687
The judgment will be reversed and the cause remanded with direction to the superior court to overrule the demurrer to the cross-complaint.
FULLERTON, PARKER, MILLARD, and FRENCH, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1715053/ | 518 S.W.2d 207 (1974)
STATE of Missouri, Plaintiff-Respondent,
v.
Ernest TURLEY, Defendant-Appellant.
No. 34965.
Missouri Court of Appeals, St. Louis District, Division One.
November 6, 1974.
Motion to Transfer Denied December 6, 1975.
Application to Transfer Denied February 10, 1975.
*208 Fenlon & Fenlon, Latney Barnes, Mexico, A. H. Juergensmeyer, Warrenton, Thomas E. Wack, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., G. Michael O'Neal, Ellen S. Roper, David Robards, Asst. Attys. Gen., Jefferson City, Thomas I. Osborne, Pros. Atty., Mexico, for plaintiff-respondent.
Motion to Transfer to Supreme Court Denied December 6, 1975.
DOWD, Chief Judge.
Defendant was convicted of robbery in the first degree under Section 560.120, RSMo 1969, V.A.M.S. His punishment under the Second Offender Act (§ 556.280, RSMo 1969) was assessed at twenty years imprisonment in the custody of the State Department of Corrections. We affirm.
Shortly after noon on June 11, 1970, the Laddonia State Bank was robbed of approximately $13,000 by two armed men wearing stocking masks. One of the robbers herded the employees behind the counter and forced an employee to fill a sack with money from the cash drawers.
The second robber remained in the bank lobby with gun drawn. The two bandits *209 made a successful getaway. A few hours later police located a burned-out light green 1959 Cadillac about a mile from the bank.
F.B.I. agents, meanwhile, arrived at the bank and showed the four bank employees several photographs of suspects. Three employees stated a photograph of defendant strongly resembled the second robber.
F.B.I. agents arrested defendant in St. Louis on June 24, 1970. No gun or stolen money was found in defendant's possession. On June 26, 1970, two bank employees identified defendant in a St. Louis police lineup. Also identifying defendant at this lineup were two other Laddonia residents. Charles Crow had noticed a green 1959 Cadillac in Laddonia the day before the robbery; he remembered defendant as the driver of the Cadillac. The evening of the robbery Crow identified the burned-out car as the Cadillac he had seen in town the previous day; that same evening he identified defendant from a photograph as the driver of the Cadillac.
The other Laddonia resident present at the lineup was Wanda Garnett, who was working at a grocery store near the bank the day of the robbery. After the robbery she saw defendant's photograph in a local newspaper and recognized him as a man who had purchased cigarettes from her a couple hours before the robbery.
On July 1, 1970, a federal grand jury charged defendant with robbing the Laddonia State Bank, in violation of 18 U.S.C. § 2113(a) and (d). Defendant was acquitted of the federal charge in November 1970, after a trial in which the four bank employees positively identified the defendant as one of the bank robbers. There was other incriminating identification testimony against defendant by Mr. Crow and Ms. Garnett.
On January 4, 1971, the Prosecuting Attorney of Audrain County filed an information charging defendant with robbery in the first degree by means of a dangerous and deadly weapon. §§ 560.120 and 560.135, RSMo 1969. At the subsequent state trial the same six witnesses again identified the defendant. As said the jury found the defendant guilty of robbery in the first degree and he appeals.
Defendant's first contention on appeal is that his conviction in state court offends the Constitutions of both Missouri and the United States. We pose the question: Can a defendant who is acquitted of a federal charge of bank robbery be subsequently tried and convicted in state court for robbery? The answer is yes.
In 1959, the United States Supreme Court handed down two cases dealing with successive state and federal prosecutions. One was Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959), which upheld a federal conviction following a state court acquittal based on substantially the same facts. The other case was Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959), with basically the same facts as the case before us. Bartkus involved the robbery of a federally insured savings and loan association. Defendant had been acquitted in the federal courts, but convicted in the state court under the Illinois robbery statute. In an opinion by Justice Frankfurter, the Supreme Court held the conviction valid.
In analyzing the history of double jeopardy, the court made note of the early case of Fox v. Ohio, 5 How. 410, 12 L. Ed. 213 (1847), which held that both the federal government and the states have the power to impose criminal sanctions on conduct that offends the laws of each. The court also noted that one of the cases decided prior to Fox v. Ohio was the Missouri case of Mattison v. State, 3 Mo. 421 (1830), which held no plea in bar would prohibit the second prosecution in successive state and federal prosecutions.
In discussing the history since Fox v. Ohio, Justice Frankfurter in Bartkus noted that of the "twenty-eight States which have considered the validity of successive *210 state and federal prosecutions as against a challenge of violation of either a state constitutional double-jeopardy provision or a common-law evidentiary rule of autrefois acquit and autrefois convict, twenty-seven have refused to rule that the second prosecution was or would be barred." 359 U.S. at 134, 135, 79 S.Ct. at 684. Among the cases cited by the court under this point was the Missouri case of Ex parte January, 295 Mo. 653, 246 S.W. 241 (Mo. banc 1922). That case held that both the federal government and Missouri have concurrent jurisdiction to punish conduct which offends the laws of each.
In further explanation of its holding, the court in Bartkus discussed the principle of dual sovereignty: "Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both." 359 U.S. at 131, 79 S.Ct. at 682.
Defendant contends that the rule in Bartkus is not the law. He argues that part of the holding in Bartkus was that the Fifth Amendment did not apply to the states and that this position has now been overruled. Defendant relies on Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). Benton involved successive state prosecutions. Benton held that the double jeopardy prohibition of the Fifth Amendment applies to the states through the Fourteenth Amendment. Benton did not overturn the dual sovereignty principle as reaffirmed in Bartkus and subsequently followed in other federal cases.
The question defendant specifically poses is does Benton overrule Bartkus v. Illinois? The answer to that question is that Bartkus is still the law today. Defendant's same argument was raised and rejected in the case of Martin v. Rose, 481 F.2d 658 (6th Cir.), cert. denied, 414 U.S. 876, 94 S. Ct. 86, 38 L. Ed. 2d 121 (1973), wherein the court held: "Appellant urges that Bartkus no longer has continuing validity, particularly in view of . . . such cases as Benton v. Maryland, . . . We do not, however, read Benton as rejecting the result of Bartkus." 481 F.2d at 659.[1] The court in Martin further stated: "we find that the Federal courts still recognize and affirm the continuing validity of Bartkus.",[2] 481 F.2d 660, citing as an example, our own Eighth Circuit in United States v. Synnes, 438 F.2d 764 (8th Cir. 1971), where, after upholding the validity of Bartkus and Abbate, held that the defense of Double Jeopardy does not bar successive prosecutions where there is no identity of sovereigns.[3]
*211 Our conclusion: Bartkus has continuing validity; defendant's conviction is not unconstitutional.
Defendant next contends that the trial court erred in allowing certain statements to be made by the prosecuting attorney in his final argument. Defendant made no objection at the time the statements were made. The remarks complained of are as follows:
"Now, under our rules the jurors may take photographs into the jury room under certain conditions. I would be willing and agree that you may take these photographs into the jury room look at them yourselves; if the defense stands up and says they do not agree that you can take the photographs and look at them yourselves, then I feel sure that Judge Adams would permit you, if you requested the photographs, to do that. Nobody is going to force any photographs on you, but on behalf of the State I ask you to request these photographs and look at them . . ."
During its deliberations the jury asked to have the photographs sent to the jury room. At that time the trial court, out of the hearing of the jury, asked if defendant had any objection to sending the photographs to the jury. The photographs had previously been introduced into evidence and had been examined by the jury.[4] Defendant answered that the earlier comments by the prosecuting attorney constituted an improper invitation to the jury. Defendant's attorney was of the opinion that the statement inferred that the jury could have the photographs unless the defendant objected. Defendant moved for a mistrial, which was denied. Thereupon the court sent all the photographs to the jury.
We note initially that defendant made no objection to the prosecutor's statements at the time they were made. Objections to arguments by the State are required to be made at the time the objectionable statement is made or nothing is preserved for review. State v. Williams, 419 S.W.2d 49, 53 (Mo.1967); State v. Martin, 484 S.W.2d 179, 180 (Mo.1972).
However, even if the point had been preserved for review it is without merit. Furthermore, the granting or withholding of a new trial for improper argument is a matter for trial court's discretion. State v. Williams, supra, 419 S.W.2d at 50. An appellate court will not interfere with a ruling by the trial court unless the record shows that the trial court abused its discretion to the prejudice of appellant. State v. Hutchinson, 458 S.W.2d 553, 556, (Mo. banc 1970). Such statements must have been plainly unwarranted and clearly injurious. State v. Hutchinson, supra.
We have examined the record and do not find the prosecutor's comments to be so injurious as to warrant a finding of abuse of discretion by trial court in denying a mistrial. Defendant argues that the prosecuting *212 attorney told the jury that they could have the photographs unless the defendant objected. On the contrary, the prosecutor said that the jury may only have photographs under certain conditions, and that if defendant objected, he felt sure that Judge Adams would permit the jury to look at them. This is not a case where the prosecutor told the jury that they had an absolute right to take exhibits to the jury room (thus distinguishing State v. Arrington, 375 S.W.2d 186 (Mo.1964)). We believe, contrary to defendant's contention, that the jury did not understand that they could have the exhibits unless the defendant objected, but rather, that it was within the discretion of the trial court. While we do not approve of the remarks by the prosecuting attorney, we cannot say they are so injurious that the trial court abused its discretion in denying defendant's motion for a mistrial. State v. McCreary, 504 S.W.2d 132 (Mo.App.1973).
Defendant's third contention on appeal concerns Instruction No. 4, which reads as follows:
"INSTRUCTION NO. 4
"All persons are equally guilty who act knowlingly (sic) together with a common intent in the commission of an offense, and an offense so committed jointly by two or more persons is the act of each and all, and whatever any does in furtherance of the unlawful act is in law the deed of each of such persons.
"If you find and believe from the evidence beyond a reasonable doubt:
"First, that on the 11th day of June, 1970, in the County of Audrain, State of Missouri, Ruby Hamlett, Freida Spradling and Frances Sutter were Laddonia State Bank employees who were in charge of a sum of money, and
"Second, that at that time and place mentioned in evidence the defendant Ernest Turley acting jointly with another took some of the money in the presence of Ruby Hamlett, Freida Spradling and Frances Sutter against the will of any one of them by putting that one in fear of immediate injury to her person, and
"Third, that the defendant acting jointly with another took the money with the intent to permanently deprive the owner, the Laddonia State Bank, and its employees of their right to the money and to convert it or any part of it to defendant's own use or the use of the person acting jointly with the defendant, then you will find the defendant guilty of robbery in the first degree.
"However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense." (Emphasis added).
Defendant urges that the word "any" in the first paragraph was "subject to misinterpretation" by the jury. He contends that the instruction would have been saved from confusion by adding the words "co-conspirator or co-defendant or accomplice" to that part of the instruction, so that the instruction would read ". . . and whatever any co-conspirator or co-defendant or accomplice does in furtherance of the unlawful act is in law the deed of each such persons."
We do not agree that the instruction was confusing as given. Our close examination of the instruction convinces us that the instruction was clear and not subject to misunderstanding by the jury. Furthermore, the first paragraph of the instruction was approved in State v. Washington, 364 S.W.2d 572 [9] (Mo.1963), with the only difference being that the word used in Washington was "either" instead of "any." It is also noted that the paragraph complained of by defendant closely parallels the language of MAI-Cr 2.10 which was *213 not in effect at the time of the trial below.[5] The contention is without merit.
Defendant also challenges the instruction for failing to require a finding on the use of a dangerous and deadly weapon, contrary to the indictment which charged defendant with such use. Defendant does not argue that the instruction has to follow the exact language in the indictment, for it is well settled that a person can be charged by indictment with the more serious offense and convicted of a lesser included offense such as hererobbery in the first degree. Keeny v. State, 461 S.W.2d 731, 732 (Mo.1971). "The defendant cannot complain of the giving of an instruction on a lesser grade of an offense although the evidence tends to show guilt, if at all, of a higher grade." State v. Cox, 508 S.W.2d 716, 723-724 (Mo.App. 1974).
What defendant does argue is that in fixing sentence, the trial court could not have known whether the jury either found the presence of the deadly weapon, or not. The trial court expressly fixed the sentence pursuant to the jury's verdict of guilty to the instructed charge of robbery in the first degree and entered the sentence in accordance with the instruction and the jury's verdict. This in no way prejudices defendant, but on the contrary, removes the possibility of being either convicted or sentenced on the more serious crime.
Defendant's final contention charges that the trial court erred in overruling his motion for directed verdict for the reason that his alibi testimony placed him in St. Louis at the time of the robbery. This contention is without merit. This is not a contention that the evidence was insufficient to support a conviction but rather a contention that the judge was required to believe the alibi witnesses. Not so. Here there were four witnesses who identified the defendant as one of the bank robbers. Two other witnesses also gave incriminating identification testimony. Therefore, it is clear that the state's evidence was sufficient to support the verdict. The credibility of the witnesses is for the jury. State v. Bizzle, 500 S.W.2d 259, 261 (Mo.App.1973). The jury here disbelieved the alibi witnesses.
We need only add that in cases where there are two diametrically opposed theories presented in the case and where the facts and the evidence are in conflict, the matter is one for the jury to determine. State v. Nolan, 499 S.W.2d 240, 250 (Mo. App.1973).
No reversible error being shown, the judgment is affirmed.
SIMEONE, WEIER and KELLY, JJ., concur.
NOTES
[1] See Footnote #2 in Martin v. Rose, supra, at page 660: "We note further that the United States Supreme Court has recently denied certiorari in several cases questioning the application of the dual sovereignty doctrine to consecutive federal and state prosecutions. Bechtel v. New Jersey, cert. denied, 404 U.S. 831, 92 S. Ct. 72, 30 L. Ed. 2d 61 (1971); Colonial Pipeline Co. v. New Jersey, cert. denied, 404 U.S. 831, 92 S. Ct. 72, 30 L. Ed. 2d 61 (1971); Feldman v. New Jersey, cert. denied, 404 U.S. 865, 92 S. Ct. 76, 30 L. Ed. 2d 109 (1971); Jacks v. New Jersey, 404 U.S. 865, 92 S. Ct. 76, 30 L. Ed. 2d 109 (1971); Leuty v. New Jersey, cert. denied, 404 U.S. 865, 92 S. Ct. 77, 30 L. Ed. 2d 109 (1971)."
[2] Citing United States v. Jackson, 470 F.2d 684 (5th Cir. 1972); United States v. Canty, 152 U.S.App.D.C. 103, 469 F.2d 114 (1972); United States v. Crosson, 462 F.2d 96 (9th Cir. 1972); Goldsmith v. Cheney, 447 F.2d 624 (10th Cir. 1971); United States v. Smith, 446 F.2d 200 (4th Cir. 1971); United States v. Synnes, 438 F.2d 764 (8th Cir. 1971).
[3] In Synnes, written by Judge Heaney, the defendant had been convicted in the federal court of possessing a firearm. The defendant had been previously convicted under a Minneapolis city ordinance for possession of a firearm. The evidence on which the convictions were based was identical. Defendant argues that the Minneapolis city court conviction bars the federal prosecution under the double jeopardy provision of the Fifth Amendment. The Court answered this argument as follows (page 773): "It is conceded by the government that the defendant's violation of the city ordinance resulted from the same conduct involved here and that the elements of proof in the two cases are identical.
"However, the government contends, and we agree, that the defense of double jeopardy does not bar successive prosecutions where, as here, there is no identity of sovereigns. We believe the decision of the Supreme Court in United States v. Lanza, 260 U.S. 377, 43 S. Ct. 141, 67 L. Ed. 314 (1922), specifically reaffirmed by Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959), compels this result. See also, Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959); United States v. Feinberg, 383 F.2d 60 (2nd Cir. 1967).
"The defendant suggests that Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435 (1970), indicates a rejection, or at least a weakening, of the "dual sovereign" concept. We doubt that it does. Waller decided only that successive municipal and state prosecutions were barred where the elements of the offense were identical. The Court reasoned that Florida municipalities were subdivisions of the State and not independent sovereigns." Synnes was vacated and remanded on other grounds, 404 U.S. 1009, 92 S. Ct. 687, 30 L. Ed. 2d 657 (1972).
[4] The photographs in question showed a lineup in which defendant appeared. One showed a group of men with stockings over their heads and the other showed the same group without the stockings.
[5] MAI-Cr 2.10 was not made effective until January 1, 1974. The only difference between the complained of language and the MAI-Cr 2.10 instruction is that the word "one" is used in place of "any". | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/155719/ | F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 17 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Case No. 97-6112
v.
(D.C. CR-96-155-A)
CLIFTON DAVID GLAZE, (Western District of Oklahoma)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
Clifton David Glaze appeals the district court’s decision declining to award him
credit for the time he spent in detention prior to sentencing. Mr. Glaze’s attorney has
filed an appellate brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he
states that the argument advanced by Mr. Glaze is frivolous. Accordingly, Mr. Glaze’s
attorney has moved to withdraw as counsel of record. We agree with Mr. Glaze’s
attorney’s assessment of the argument raised, grant his motion to withdraw, and affirm
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
the district court’s decision.1
BACKGROUND
In a nine-count indictment filed in October 1996, the government charged Mr.
Glaze with various drug and weapons violations. In January 1997, Mr. Glaze pled guilty
to two offenses: carrying a firearm in relation to a drug trafficking felony (a violation of
18 U.S.C. § 924(c)(1)) and distribution of a controlled substance (a violation of 18 U.S.C.
§ 841(a)(1)). Prior to the filing of the October 1996 indictment, Mr. Glaze had been
serving an undischarged state sentence. The state sentence was imposed in June 1995 for
possession of a controlled substance with intent to distribute. See Rec. vol. I, doc. 31 at 3
(Defendant’s Sentencing Memorandum filed Feb. 25, 1997). Additionally, in November
1995, Mr. Glaze was charged in state court with several offenses related to the offenses
charged in the instant case. When the government filed the indictment in this case, the
November 1995 state charges were dismissed.
At sentencing, Mr. Glaze requested the district court to order the sentence for the
controlled substance violation to run concurrently with the undischarged state sentence.
See id. at 3-4. He also requested the court to award him “credit for time served in
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
2
Oklahoma County jail in maximum security awaiting disposition of these charges, which
were originally lodged as state charges and then dropped in lieu of federal prosecution.”
Id. at 4.
The district court granted the first request but denied the second. The court
imposed a sentence of seventy-seven months for the § 841(a)(1) violation and provided
that that sentence “shall be served concurrently with any other undischarged sentence to
which Mr. Glaze is subject.” Rec. vol. II at 7 (Tr. of Feb. 26, 1997 sentencing hearing).
As to Mr. Glaze’s request for credit for time served, the court said that it would “leave it
to the Bureau [of Prisons] to make the calculation of credit for incarceration before
today’s date in their normal administrative calculations.” Id. at 9. For the § 924(c)(1)
violation, the court imposed a sixty month sentence and provided that that sentence would
run consecutively to any other sentence to which Mr. Glaze was subject. See id. at 7-8.
The court also imposed a term of supervised release on each sentence. See id. at 8.
DISCUSSION
On appeal, Mr. Glaze argues that in light of 18 U.S.C. § 3585(b), the district court
erred in refusing to award him credit for time served in detention. Section 3585(b)
provides:
(b) Credit for prior custody--A defendant shall be given credit
toward the service of a term of imprisonment for any time he
has spent in official detention prior to the date the sentence
commences--
3
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was
arrested after the commission of the offense for which the sentence
was imposed;
that has not been credited against another sentence.
Mr. Glaze’s argument is controverted by the Supreme Court’s decision in United
States v. Wilson, 503 U.S. 329 (1992). In Wilson, the Court analyzed the terms of §
3585(b) and concluded that “Congress has indicated that computation of the credit must
occur after the defendant begins his sentence. A district court, therefore, cannot apply §
3585(b) at sentencing.” Wilson, 503 U.S. at 333. The Court added that the awarding of
credit under § 3585(b) for time served in detention is the responsibility of the Attorney
General, acting through the Bureau of Prisons. See id. at 335 (“After a district court
sentences a federal offender, the Attorney General, through the [Bureau of Prisons] has
the responsibility for administering the sentence . . . . Because the offender has a right to
certain jail-time credit under § 3585(b), and because the district court cannot determine
the amount of the credit at sentencing, the Attorney General has no choice but to make the
determination as an administrative matter when imprisoning the defendant.”). This circuit
has applied Wilson to conclude that a sentencing court may not award credit under §
3585(b) for time served, see United States v. Jenkins, 38 F.3d 1143, 1144 (10th Cir.
1994) (“[U]nder Wilson, the district court lacked jurisdiction to award any sentence credit
to Defendant.”), and other circuits have reached the same conclusion. See, e.g., United
4
States v. McGee, 60 F.3d 1266, 1272 (7th Cir. 1995); United States v. Keller, 58 F.3d
884, 894 (2d Cir. 1995).
Accordingly, it was entirely proper for the district court, at sentencing, to decline
to award Mr. Glaze credit for time served and to leave that determination to the Bureau of
Prisons. We therefore GRANT the motion of Mr. Glaze’s attorney to withdraw from this
case and AFFIRM the decision of the district court.
The mandate shall issue forthwith.
Entered for the Court,
Robert H. Henry
Circuit Judge
5 | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3409011/ | Under an agreement dated September 14, 1928, respondent purchased from appellant five cars of peas, "f. o. b. cars Moscow." The peas had previously been shipped to appellant's processing plant at Moscow from near-by local points where grown. Under an arrangement with different railroad companies, appellant is granted what is known as transit privileges whereby, after peas have been received and treated at its plant, then sold for delivery by rail to some other point, usually eastern markets, appellant is given a rebate of the freight rate which *Page 19
it pays to have the peas delivered originally to its plant. The transit privilege does not, however, apply to shipments to all points from the Moscow plant, and did not apply in this case, respondent directing appellant to ship the peas to Palouse, Washington.
Appellant refused to ship the peas in this instance until respondent refunded it the freight rate it had paid in bringing them to Moscow. Respondent paid the amount demanded under protest, and brought this action to recover the same, upon the theory that his contract with appellant provided for delivery of the peas free on board cars Moscow, and did not require him to pay the freight in shipping them to the Moscow plant of appellant before his purchase thereof. The recovery sought by respondent was limited to the amounts paid as freight on three of the five cars purchased, it appearing from the record that he was not ultimately required to pay the freight on the other two cars. In defense of the action appellant admitted the sale of the peas and the signing of the contract for their delivery "f. o. b. cars Moscow," but alleged that it had been the custom to permit the shipper (appellant) to have the freight refund, and that it was by mutual inadvertence and mistake that this provision was not mentioned in the contract. Upon trial of the cause to the court without a jury, judgment was entered for respondent from which this appeal is prosecuted.
The binding agreement between the parties was specific to the point of providing that delivery of the peas purchased by respondent should be "f. o. b. cars Moscow." The abbreviation f. o. b. means "free on board" and indicates that the property purchased shall be delivered on board the cars without expense to the buyer at the point designated in the contract. (Hatcher v. Ferguson, 33 Idaho 639, 643, 16 A.L.R. 590, 198 Pac. 680.) The terms of the contract being plain and unambiguous, they cannot be varied or contradicted by evidence of usage and custom. (Gramkow v. Farmers Co-operative Irr. Co.,47 Idaho 578, 277 P. 431.) The parties must be held to have intended what is clearly expressed by the language used. (Farm *Page 20 Credit Corporation v. Meierotto, 50 Idaho 538, 298 P. 378.) The rule last stated applies in the absence of averment and proof of mistake (13 C. J., p. 524, sec. 485), but it must appear that the mistake was mutual, and the evidence must be clear and satisfactory, leaving but little, if any, doubt of the mistake. It must be made out by the clearest and most satisfactory testimony, such as to leave no fair and reasonable doubt that the writing does not correctly embody the real intention of the parties. A mere preponderance of the evidence will not suffice, and the burden of proof is on the party alleging the mutual mistake. (Udelavitz v. Ketehen, 33 Idaho 165,190 P. 1029.) Furthermore, it has been held by this court that a party will not be relieved from the terms of a written contract on the ground of mistake due to his negligence when it was within his power to have a stipulation inserted in the agreement which would have protected him fully. He is bound to assume any risk he might have provided against in the contract. (Jensen v. McConnell Brothers, 31 Idaho 87,169 Pac. 292.)
Appellant's defense is overcome by the application of the principles above stated. The order for the purchase of the peas unequivocally provided for their delivery free on board cars at Moscow, indicating their purchase without other expense to respondent at that point; the unambiguous terms of the contract cannot be varied or contradicted by evidence of usage and custom to the contrary (from which it would seem to follow that proof of the alleged mistake would be inadmissible); respondent denied that it was understood that he was to pay the freight claimed by appellant; the evidence permitted by the court to be introduced concerning the usage and custom, under the theory of mistake, is not of such cogency as to require a reversal of the findings; and it appears that it was through appellant's negligence that a stipulation for the payment by respondent of the disputed freight rate was not inserted in the contract, if such provision was in fact intended by it to be a part of the agreement. *Page 21
We are of opinion that the evidence is sufficient to sustain the judgment of the trial court, and the judgment is therefore affirmed; costs to respondent.
Lee, C.J., and Givens, Varian and McNaughton, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3409014/ | Respondents constructed a school building for appellant. This action is to recover $2,950 which appellant claims was paid respondents in excess of the contract price, the contention being that the payment was unlawful. Respondents contend that this money was properly *Page 285
paid to them on certificate of the supervising architect in accordance with the contract, that appellant by making the payment waived the right to claim that the amount was not due. They also claim that their bid was made in reliance upon the selection by appellant of a certain site for the building and the representation of the supervising architect that only earth would have to be removed in excavating; that thereafter appellant changed the site of the building thereby necessitating the removal of rock in excavating; that thereupon, in order to induce respondents to proceed with the work, appellant agreed to pay the reasonable cost of removing the rock which was the amount in question. Upon the trial a motion of nonsuit was granted, and judgment entered for respondents, from which this appeal is taken. The principal assignments of error, and the only ones which we deem it necessary to mention, are that the court erred in granting the nonsuit and rendering judgment of dismissal, and in permitting respondents, on cross-examination of appellant's witnesses, to go into the question of the alleged change of location.
We will first consider the question of waiver. The rule that voluntary payments made by reason of mistake of law cannot be recovered applies to individuals, but not to municipal subdivisions of the state. (Ada County v. Gess, 4 Idaho 611,43 Pac. 71; Pocahontas County v. Katz-Craig Contracting Co.,181 Iowa, 1313, 165 N.W. 422; Erie County v. Town of Tonawanda,95 Misc. Rep. 663, 159 N.Y. Supp. 714; Board of Commrs. v. McLean,50 Colo. 602, 115 P. 525.) In ruling on the nonsuit the district court apparently relied on the following language found in article 27 of the specifications, to wit:
"The making and acceptance of the final payment shall constitute a waiver of all claims by the owner, otherwise than under articles 16 and 29 of these conditions or under requirement of the specifications, and of all claims by the contractor, except those previously made and still unsettled."
This language, however, clearly refers to a claim against the contractor, based on defective work or similar cause, and not to an overpayment above and beyond the contract price. *Page 286
Respondents invoke the rule that, while the performance of a contract which a municipality had no power to make does not validate the contract, yet the performance by the other party of a contract which the municipality had power to make may furnish ground for enforcing it against the municipality, though it was defectively and irregularly executed. This rule is recognized by this court in Deer Creek Highway Dist. v.Daumecq Highway Dist., 37 Idaho 601, 218 P. 371. The rule is a sound one but there is a question, whether it applies to this case. At the time the dispute over the rock first arose a special meeting of the board of trustees was held. Respondents insisted that the board agree to pay the entire cost of excavating the rock. By majority vote of those present the trustees agreed to pay approximately one-half or $1,500. This meeting was irregular because proper notice had not been given as required by the statute, and all the trustees were not present. Under the rule above stated, however, this irregularity would not be fatal to the agreement to pay the $1,500 if the board had authority to make it. The question is whether it had such authority. This we will consider a little later. Even if there were a valid agreement to pay the $1,500, this would not affect the balance.
The architect gave respondents certificates for the amount in controversy and the treasurer paid them. Under the specifications the contract price, and the price of any extras authorized by appellant, were to be paid on certificate of the architect, but there can be no contention that the treasurer had authority to pay out sums in excess of the contract price or the price of extras duly authorized by the trustees, merely on certificate of the architect.
If it be contended that a dispute had arisen which gave rise to an honest, though doubtful, claim on the part of respondents, which they forebore to press in consideration of appellant's offer to pay an amount in addition to the contract price, the answer is that the evidence does not support such a contention. Falkenberg testified: *Page 287
"They had called a school board meeting. Mr. Mittry, the general contractor called a special meeting, — I believe it was a special meeting on account he struck rock in the excavation, and he quit excavating and said, 'I won't go any further,' before we would say what to do about the work. I believe it was a special meeting, or a regular meeting, — I could not tell to-day whether it was a special meeting or not. Well, he called a meeting and talked the matter up about them rocks, and he talked quite a while about it, and the school board understood it this way: That the excavation should be done any way in spite of rock, or no rock, and the general contractor said that he was informed that there would be no rock in the excavation and he figured according to that, and they tried to settle the matter, and some member of the board, I believe, — I could not tell any more who, — made a motion to pay half the cost of excavating the rock, but on the other side, the contractor said he could not agree to that; that he would have to have it all or fight. It was left unsettled in my opinion, but anyhow I knowed the boiler room had to be taken out no matter who paid for it, because we couldn't run the school without the boiler room so he went on with the work. I don't know what he thought about it, anyway he went ahead with the work, and one day he came around to me and said he needed money. He said they had hired a subcontractor to shoot out the rock, and he come around and said he needed some money. I said, 'I couldn't give you any more right now than about one-half I think it will be,' because it wasn't done then, and I didn't know the amount of rock. I would have to use the instrument first, and as close as I could estimate it it would be about $1,500. That would be about half, and on the strength of this I issued the certificate."
The minutes of the special meeting of the trustees on October 10th show the following:
"The matter of encountering rock in the basement of the new building was brought up for discussion, Mr. Mittry being present. He stated that his bid on the building was *Page 288
on the excavation of earth and he was led to this by the statement of the architect, Mr. Boyer, that there was no rock in the foundation or to be excavated and that a bid on rock was not necessary. Under these circumstances he insisted that the extra cost of excavation would have to be done or paid for by the district. After some discussion, a motion was made by Mr. Carr that in view of the fact that nothing was said in the specifications regarding rock or in the contract, that the district should pay one-half of the extra cost of excavating the rock. Seconded by Mr. Lallatin. Was carried."
The board offered to pay one-half of the cost of excavating the rock. There is no evidence that this was accepted by respondents. On the contrary, Falkenberg testified that they persisted in their claim for the full amount. Even if respondents were able to prove that they had an honest though doubtful claim, and forebore to press it because of the offer of the board to pay $1,500, this would not affect the balance sued for.
We will next consider the matter of the alleged change of location, which the court permitted respondents to go into on cross-examination of appellant's witness. Appellant objected on the ground that this was improper cross-examination and part of respondents' affirmative defense. This objection should have been sustained. Aside from this the evidence introduced did not furnish ground for a nonsuit. The only witness who testified on this point was Falkenberg, one of the architects. He said that the board picked out a certain spot for the building site and they drove temporary stakes. He did not make any soundings at that time. After the contract was signed he moved the site of the building back a little over ten feet. When asked the following question:
"Well, now, so far as the excavation is concerned, what was the effect of moving the building back?"
He answered:
"I didn't know any special effect about it." *Page 289
"Q. Wasn't the effect to throw the boiler-room and excavation into solid rock, where if it had been left as originally planned it would have been in earth?
"A. I could not — I don't know about this because I wouldn't simply know because I couldn't look below the ground."
After he got the four corners located correctly he made soundings and found no rock. The location of the building was not shown on the plans. He moved the building back after respondents signed the contract. He made the soundings after he had definitely located the building. There is nothing in the evidence to show that respondents in making their bid and entering into the contract relied on the temporary location. There is nothing to show that moving the permanent location ten feet from the temporary location changed the situation or increased respondents' burden so far as the removal of rock is concerned.
The minutes of the meeting of October 10th recite that respondents stated they had been told by one of the architects that there was no rock to be excavated. There is no evidence to substantiate this. Moreover, no fraud is pleaded.
We come now to the most important question presented by this case. Appellant contends that respondents were bound to do the rock work under the contract. Respondents contend that they were not. The answer to this question determines whether or not the board had authority to promise to pay $1,500 extra. It is elementary that a promise to do, or the doing of, what one is already bound by contract to do, is not a valid consideration. (1 Williston on Contracts, secs. 130, 130A.) But the matter goes even deeper than that. If respondents were not bound to do the rock work under the contract, but did it with the knowledge of the board, and appellant received the benefit of it, then appellant would be bound to pay for it, and certainly could not recover the amount when paid. Under such circumstances appellant could have entered into a contract to pay for this work. The fact that it had not entered into any formal contract would not prevent recovery for *Page 290
the work done. The paragraphs of the specifications upon which respondents bid and the contract was founded are as follows:
"EXCAVATING. Excavate for footings and sub-footers, piers, area and foundation walls to depths, and otherwise as figured and shown by the sections, also excavate for boiler, coal and fan room as, and where shown by the plans. Trenches for footers to be properly stepped where necessary. Footers shall be built not on made ground. In all cases the excavating for footers shall extend down into the solid earth.
"The surplus earth, after back filling and grading around the building, and all stone and boulders are to be removed from the premises at the cost and expense of the contractor. At final completion of the building, remove all debris caused by building operations from the premises. The plumber and steam heating contractor to do the necessary trenching for heater, supply and return pipes."
The evidence shows that 545 cubic yards of rock were excavated. It does not go into detail about the matter. We do not know whether the rock was in one body, a thin layer spread over a large surface, or several small bodies. The contract expressly requires respondents to remove all stone and boulders. Does this include rock? The words "stone" and "rock" are often used indiscriminately. Accurately speaking, they probably have a slightly different shade of meaning. Webster's New International Dictionary defines stone as follows:
"1. Concreted earthy or mineral matter: a A small piece of rock or one of moderate size; as, the boy threw a stone; pebbles are rounded stones. b Rock or rocklike matter as a material, esp. for building; as a house of stone. Very large masses of stone are generally called rock; small or quarried masses are called stones; and the finer kinds, gravel or sand, or grains of sand"; and the same work defines rock as follows:
"1. A large concreted mass of stony material; a large fixed stone; also, broken pieces of such masses. See stone." *Page 291
We are of the impression that rock and stone may come under different classifications in building contracts. But we cannot say the matter is so clear that we know judicially that the rock work done by respondents in excavating did not come under the terms of the contract. It will require further evidence to make possible a judicial answer to that question. We cannot say that respondents' contention in this regard is so clearly sustained by the evidence that a nonsuit was justified.
We conclude that the granting of the nonsuit was not justified on any of the grounds which have been suggested, or which occur to us. The judgment is reversed and the case remanded for a new trial in accordance with the views herein expressed. Costs to appellant.
William A. Lee and Wm. E. Lee, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4244562/ | NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD GRAMM,
Appellant
v.
DEERE & COMPANY,
Appellee
______________________
2017-1252, 2017-1253
______________________
Appeals from the United States Patent and Trade-
mark Office, Patent Trial and Appeal Board in Nos.
IPR2015-00898, IPR2015-00899.
______________________
JUDGMENT
______________________
JOHN COTTER, Larkin Hoffman Daly & Lindgren, Ltd.,
Minneapolis, MN, argued for appellant. Also represented
by GLENNA GILBERT, KATHERINE E. MULLER, THOMAS J.
OPPOLD, DAVID P. SWENSON.
GARY M. ROPSKI, Brinks Gilson & Lione, Chicago, IL,
argued for appellee. Also represented by JAFON FEARSON,
JOSHUA JAMES, LAURA A. LYDIGSEN, JEFFRY M. NICHOLS.
______________________
THIS CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
PER CURIAM (LOURIE, DYK, and TARANTO, Circuit
Judges).
AFFIRMED. See Fed. Cir. R. 36.
ENTERED BY ORDER OF THE COURT
February 13, 2018 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court | 01-03-2023 | 02-13-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/2818090/ | MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jul 17 2015, 8:09 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Peter D. Todd Gregory F. Zoeller
Elkhart, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jason M. Drinsky, July 17, 2015
Appellant-Defendant, Court of Appeals Case No.
20A03-1501-CR-7
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Evan S. Roberts,
Appellee-Plaintiff Judge
Case No. 20D01-1409-F4-9
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1501-CR-7 | July 17, 2015 Page 1 of 6
Case Summary
[1] Jason M. Drinsky pled guilty to possessing material capable of causing bodily
injury by an inmate, as a level 4 felony. The trial court sentenced Drinsky to
ten years’ imprisonment with four years suspended. Drinsky appeals, claiming
that his sentence is inappropriate in light of the nature of the offense and his
character. Concluding that Drinsky has not met his burden to show that the
sentence imposed by the trial court is inappropriate, we affirm.
Facts and Procedural History
[2] On July 11, 2014, a law enforcement officer with the Elkhart County Sheriff’s
Department received information that Drinsky, an inmate at the Elkhart
County Correctional Facility, was in possession of a white plastic spoon handle
that had been sharpened to a point. This item is commonly known as a
“shank.” Appellant’s App. at 80. A subsequent search revealed that Drinsky
was carrying the shank in his shirt pocket. Drinsky admitted that he knowingly
possessed the weapon but denied that he intended to use it to harm anyone.
Instead, Drinsky claimed that he intended to give the shank to authorities but
was caught with it before he could do so.
Court of Appeals of Indiana | Memorandum Decision 20A03-1501-CR-7 | July 17, 2015 Page 2 of 6
[3] The State charged Drinsky with level 4 felony possessing material capable of
causing bodily injury by an inmate. 1 Drinsky pled guilty to the offense, as well
as to two other pending charges. Following a sentencing hearing, the trial court
imposed a ten-year sentence, with four years suspended to probation, for the
current offense, to be served consecutive to the sentences imposed on the other
charges. Drinsky appeals only the ten-year sentence.
Discussion and Decision
[4] Drinsky invites this Court to reduce his ten-year sentence pursuant to Indiana
Appellate Rule 7(B), which provides that we may revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, we find that the
sentence “is inappropriate in light of the nature of the offense and the character
of the offender.” The defendant bears the burden to persuade this Court that
his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080
(Ind. 2006). “[W]hether we regard a sentence as appropriate at the end of the
day turns on our sense of the culpability of the defendant, the severity of the
crime, the damage done to others, and myriad other factors that come to light
1
Indiana Code Section 35-44.1-3-7 provides:
A person who knowingly or intentionally while incarcerated in a penal facility possesses a
device, equipment, a chemical substance, or other material that:
(1) is used; or
(2) is intended to be used;
in a manner that is readily capable of causing bodily injury commits a Level 5 felony.
However, the offense is a Level 4 felony if the device, equipment, chemical substance, or
other material is a deadly weapon.
Court of Appeals of Indiana | Memorandum Decision 20A03-1501-CR-7 | July 17, 2015 Page 3 of 6
in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). We
recognize that the “principal role of appellate review should be to attempt to
leaven the outliers and to identify some guiding principles for trial courts and
those charged with improvement of the sentencing statutes, but not to achieve a
perceived ‘correct’ result in each case.” Id. at 1225. Indeed, “[t]he question
under Appellate Rule 7(B) is not whether another sentence is more appropriate:
rather, the question is whether the sentence imposed is inappropriate.” King v.
State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).
[5] Our supreme court has stated that when considering the appropriateness of a
sentence, we must consider not only the aggregate length of the sentence
imposed, but also whether a portion of the sentence is ordered suspended.
Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). A level 4 felony has a
sentencing range between two and twelve years, with the advisory sentence
being six years. Ind. Code § 35-50-2-5.5. Drinsky received a ten-year sentence
with four years suspended to probation, resulting in a six-year executed
sentence, the same as the level 4 felony advisory sentence.
[6] Regarding the nature of the offense, Drinsky knowingly while incarcerated
possessed an item that had been fashioned into a deadly weapon: a shank. The
record indicates that when the shank was discovered by authorities, Drinsky
was carrying the shank concealed in his shirt pocket. Undoubtedly, having the
shank in a shirt pocket and readily accessible increases the severity of the
offense. Drinsky downplays his possession of the shank by claiming that he
did not intend to use it to hurt anyone and that, at the time he was caught, he
Court of Appeals of Indiana | Memorandum Decision 20A03-1501-CR-7 | July 17, 2015 Page 4 of 6
was planning to give the weapon to a prison investigator whom he trusted.
However, Drinsky admits that he possessed the deadly weapon for several days
and, despite the opportunity to place the weapon in a prison drop-box made
available to prisoners for the very purpose of disposing of contraband they do
not wish to possess, Drinsky failed to do so. These facts do not convince us
that a six-year executed sentence is inappropriate based upon the nature of
Drinsky’s crime.
[7] Regarding his character, Drinsky does not fare much better. He is clearly no
stranger to conflict, violence, or our criminal justice system. Drinsky has prior
class A misdemeanor convictions for domestic battery and interference with
reporting a crime. He was granted the grace of probation only to then violate it.
At the time Drinsky committed the current crime, he was incarcerated and
facing charges of two counts of class C felony stalking and four counts of class
A misdemeanor invasion of privacy. The probable cause affidavits for those
charges indicate that Drinsky engaged in violent, threatening, and antisocial
behavior toward his ex-wife and her boyfriend. He eventually pled guilty to one
count of class D felony stalking and one count of class A misdemeanor invasion
of privacy. As with his prior history, his most recent criminal history does not
reflect favorably on his character. A sentence reduction is not warranted under
the circumstances.
[8] Drinsky has failed to meet his burden to demonstrate that the sentence imposed
by the trial court is inappropriate based upon the nature of the offense or his
character. Therefore, we affirm his sentence.
Court of Appeals of Indiana | Memorandum Decision 20A03-1501-CR-7 | July 17, 2015 Page 5 of 6
[9] Affirmed.
Brown, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A03-1501-CR-7 | July 17, 2015 Page 6 of 6 | 01-03-2023 | 07-17-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3865832/ | The facts in this case are as follows, viz.: Sarah McGinity was appointed administratrix on the estate of her husband, George McGinity, deceased, by the Probate Court of Warwick on the day of 1889. Appraisers were also duly appointed and an inventory filed, showing personal estate amounting to $1,324.26. Among other things the inventory contained two mortgage notes, one against Patrick McMahon for $1,030, *Page 511
and one against Bartley and Catherine Gaffney for $201.58. Said inventory was sworn to by the administratrix and was duly filed in and ordered recorded by said Probate Court, July 8th, 1889.
The first account of the administratrix was filed April 10th, 1893, and the amended account, which contains the matter in dispute, was filed May 8th, 1893, and on the same day after hearing the parties with their witnesses and by counsel, was allowed by said Probate Court against the appellant's objection. From this allowance the appellant appealed to the Common Pleas Division where, jury trial being waived, the case was heard by the court, whose findings of fact and of law are as follows: —
"I find as matter of fact that the administratrix's inventory, sworn to by her and duly allowed by the Probate Court having jurisdiction of the estate, charged her with two mortgages as of the assets in her hands; that the account now under consideration credits her with the proceeds of two mortgages under the head of errors and shrinkage in inventory $1,258.68."
"I find as matter of law that the administratrix is bound by the inventory and the judgment of the Probate Court accepting the same, as well as by her oath thereto and cannot now be heard to say that the mortgage and debts were her property in contradiction to her statement that they belonged to her husband's estate."
"The account should be amended by striking out all credits on account of these mortgages."
To this decision the said Sarah McGinity by her attorney duly excepted, and the case is now before us on a petition for a new trial. The contention of the counsel for appellant is that the matter is res judicata against the administratrix, and that she is estopped by the judgment of the Probate Court in the premises: In other words, that the receiving and recording of the inventory by said Probate Court was a judicial act; also that the administratrix is estopped by her oath to the inventory, made by appraisers selected by her, of property and estate which she set out to them as assets of *Page 512
the estate, from now claiming that the mortgages belonged to her, under the maxim "Allegans contraria non est audiendus." He further urges that the act of presenting the inventory and swearing to it constituted an admission in judicio, i.e., a solemn admission in open court which is conclusive against the party making it. On the other hand it is contended by counsel for appellee that the notes which were secured by said mortgages, while they stood in the name of the intestate, yet in fact belonged to the administratrix in her own right, as the money for which they were given was hers, and that she supposed that when the money was loaned by her to her husband, the notes were taken in her name, she being unable to read or write, and hence that she is entitled to credit her account with the amount of the two notes as "errors and shrinkage in inventory," or to retain the same amount as money due and owing to her from the estate on account of loans to her husband in his lifetime. The only question raised, then, by the record, is whether the Common Pleas Division erred in deciding that the administratrix is bound by the inventory rendered as aforesaid, and that said inventory cannot now be changed by crediting the amount of said notes.
We do not think the rendering of an inventory by an administrator, under oath to the Probate Court, and the reception and recording thereof by such court can be treated as a judgment. It is the duty of the administrator to return a true and just inventory of all the property, rights and credits of the deceased which have come to his hands or knowledge. The Probate Court in receiving and recording the same does not determine whether such inventory is right or wrong. It passes no judgment thereon. In fact, as a matter of practice, we presume that such inventory is seldom examined at all by the Probate Court unless in case it is questioned by some party in interest. It is simply ordered to be recorded. The administrator like all other persons is liable to make mistakes. He may omit by accident to inventory certain items of property belonging to the intestate, on the one hand, or he may include in such inventory by mistake *Page 513
property which does not belong to the intestate, on the other, and the plainest dictates of reason and justice require that in either case the error when discovered should be corrected. In the case at bar it is contended by the administratrix that a mistake was made in charging the amount of said mortgage notes to her they being in fact her property, and hence should have been credited instead of charged; or, in any event, that she should be allowed to charge the estate with the amount found due to her by reason of said loans.
If it is true that said notes, although prima facie
belonging to the estate of her husband, yet in fact represented money borrowed from the administratrix in manner aforesaid, then said notes, together with the mortgages taken as security therefor, were held by the intestate as trustee for her. And this being so, she had the right to retain the money obtained thereon, in repayment of her loan. Perkins v. Se Ipsam, 11 R.I. 270. And while we think it was error on the part of the Probate Court to allow the administratrix to amend her account by crediting herself with the amount of said notes as "errors and shrinkage in inventory," yet that it would have been proper to allow her to credit herself with the amount thereof, retained as aforesaid to repay the loan, upon satisfactory proof of the making thereof. And we see no reason why the Common Pleas Division, if satisfied that such a credit ought to be given, cannot now allow the account to be amended in this regard, and send it back to the Probate Court for record, as thus amended.
Of course, the inventory having been rendered under oath constitutes a solemn admission on the part of the administratrix that said notes absolutely belonged to the intestate, and before allowing her to contradict the statement thus made in the way suggested, it ought to be made clearly to appear that in rendering the inventory and neglecting to credit herself with said amount she made an honest mistake. That question, however, is not before us, as we are simply called upon to determine whether the Common Pleas Division rightly ruled that in no event could said account be amended *Page 514
or changed. We are of the opinion that this was error, and for this reason a new trial must be granted.
Petition for new trial granted. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4554167/ | Case: 19-50544 Document: 00515520367 Page: 1 Date Filed: 08/07/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-50544
FILED
August 7, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MANUEL ROSARIO-LOPEZ, also known as Yayo,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:15-CR-1211-23
Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Manuel Rosario-Perez pleaded guilty to participating in a conspiracy to
conduct a criminal enterprise through racketeering, a violation of 18 U.S.C.
§ 1962(d). The district court denied his motion to withdraw his guilty plea and
sentenced him to 235 months in prison. Rosario-Perez argues that he should
have been allowed to withdraw his plea, and that the district court lacked
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 19-50544 Document: 00515520367 Page: 2 Date Filed: 08/07/2020
No. 19-50544
jurisdiction in light of the federal Juvenile Delinquency Act (JDA), 18 U.S.C.
§§ 5031-5043, because he was younger than 18 during the conspiracy.
The argument for withdrawing the plea fails under the totality of factors
recognized in United States v. Carr, 740 F.2d 339, 343-45 (5th Cir. 1984).
Rosario-Perez’s assertion of actual innocence was limited to one of the acts
recounted in the factual basis, and he explicitly admitted his guilt in the
factual basis and at rearraignment. In addition, he had close assistance of
counsel at all times, and his plea was knowing and voluntary, as the district
court meticulously ascertained at rearraignment. See id. at 344-45.
Rosario-Perez’s jurisdictional claim based on the JDA fails because he
had reached the age of 21 prior to being indicted. See United States v. Guerrero,
768 F.3d 351, 361 (5th Cir. 2014); United States v. Jimenez, 256 F.3d 330, 345
& n.19 (5th Cir. 2001) (collecting cases). Further, his argument about the
reduced culpability of minors fails to show any constitutional infirmity in
denying JDA protection due to the defendant’s age at indictment. See United
States v. Bilbo, 19 F.3d 912, 915 (5th Cir. 1994) (noting that the JDA’s main
purpose is to encourage rehabilitation and to shield juveniles from adult
criminal processes); see also United States v. Lopez, 860 F.3d 201, 210 (4th Cir.
2017).
The judgment is AFFIRMED.
2 | 01-03-2023 | 08-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4554168/ | Case: 19-30427 Document: 00515520312 Page: 1 Date Filed: 08/07/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 7, 2020
No. 19-30427 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
John Homer Legros, Jr.,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:18-CR-223-1
Before Davis, Graves, and Duncan, Circuit Judges.
Per Curiam:*
John Homer Legros, Jr., challenges the inclusion of an erroneous
converted drug weight in his presentence report, as well as the district court’s
failure to make a finding on his objection to a sentencing enhancement for
possessing a firearm. We affirm.
*
Pursuant to 5TH CIRCUIT. Rule. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Case: 19-30427 Document: 00515520312 Page: 2 Date Filed: 08/07/2020
No. 19-30427
I.
Legros pleaded guilty to conspiracy to distribute and to possess with
intent to distribute oxycodone in violation of 21 U.S.C. § 846. His probation
officer prepared a presentence report (“PSR”) that cast Legros responsible
for 395 oxycodone pills. The officer determined the pills’ converted drug
weight was 2,646.5 kilograms, correlating to a base offense level of 30. The
PSR recommended a two-level increase under U.S.S.G. § 2D1.1(b)(1)
because Legros had a firearm, and another two-level increase under U.S.S.G.
§ 3B1.1(c) based on his supervisory role in the conspiracy. The PSR
calculated an adjusted offense level of 34. Because his offense concerned
controlled substances, however, and because Legros had prior drug-
trafficking convictions, the PSR found Legros qualified as a “career
offender” under U.S.S.G. § 4B1.1(b)(3). His offense level under the career-
offender guideline was 32, but because that offense level was lower that his
otherwise applicable level under § 2D1.1, the PSR stated the higher level of
34 applied. After a three-level reduction under U.S.S.G. § 3E1.1 for
acceptance of responsibility, his total offense level was 31. With a total
offense level of 31 and a criminal history category of VI, the resulting
sentencing range was 188–235 months.
Both the Government and Legros objected to the PSR. The
Government challenged the calculation of the converted drug weight,
explaining that the correct figure was 661.625 kilograms, correlating to an
offense level of 27. Because that offense level was lower than the one supplied
by the career-offender guideline, the Government argued that career-
offender status should determine Legros’s sentencing range, instead of drug
quantity. The Government argued, however, that his range remained 188–
235 months even under the career-offender guideline. For his part, Legros
argued that the converted weight was between 60 and 80 kilograms,
correlating to a base offense level of only 20. He also challenged application
2
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No. 19-30427
of the firearm enhancement, arguing that the weapon was recovered from his
home and that there was no evidence drug-trafficking activity occurred there.
In an addendum to the PSR, the probation officer defended his initial
calculations on converted drug weight and his application of the firearm
enhancement. In response to both parties’ objections, however, he noted that
if the court were to determine the career-offender provisions controlled,
Legros’s guideline range would be 151–188 months.
At sentencing, the Government conceded error in the drug-quantity
conversion but argued this was moot because the career-offender provision
should govern, making Legros’s range 151–188 months. Legros disagreed
with the Government about the impact of the drug-quantity error, but
ultimately agreed that the proper range under the career-offender guideline
was 151–188 months, raising no objection to his career-offender status. The
district court found the Probation Office’s “career criminal calculation” was
“correct” and overruled the objections to the PSR. The court sentenced
Legros to 144 months imprisonment, just below the advisory range. Legros
offered no objection to his sentence, nor did he request that his PSR be
amended to reflect any corrected drug conversion weights or to remove the
firearm enhancement.
In its statement of reasons, the district court wrote it had “adopted
the presentence report with the following changes,” namely that “[t]he
government and the defense agreed to hold the defendant accountable for a
drug weight that was less than originally determined, [and] therefore [the]
career offender guideline was used for sentencing purposes.” Legros filed no
objection to the district court’s statement of reasons.
Legros now appeals, challenging inclusion of the erroneous converted
drug weight in his PSR, as well as the district court’s failure to make any
3
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No. 19-30427
finding on his objection to the firearm enhancement. The parties agree that
neither mistake had any effect on Legros’s sentence.
II.
The Government argues we lack jurisdiction to consider an appeal
complaining solely about an erroneous PSR. It concedes that “the order
sentencing the defendant” is a “final decision” for purposes of appellate
jurisdiction under 28 U.S.C. § 1291. See United States v. Newman, 556 F.2d
1218, 1219 (5th Cir. 1977) (citations omitted). It also recognizes that a
criminal defendant may appeal his sentence if it “was imposed as a result of
an incorrect application of the sentencing guidelines.” 18 U.S.C.
§ 3742(a)(2). Nonetheless, the Government argues we lack appellate
jurisdiction here because Legros does not actually challenge his sentence. It
relies primarily on cases finding no jurisdiction to appeal judicial
recommendations to the Bureau of Prisons.1
The Government’s argument fails to cope with our precedent. In
United States v. Ramirez-Gonzalez, the defendant appealed the district
court’s refusal to correct his PSR to reflect the court’s determination at
sentencing that he did not commit an aggravated felony. 840 F.3d 240, 242
(5th Cir. 2016). Like Legros, Ramirez-Gonzalez argued that the district court
erred by failing to rule on disputed portions of the PSR, id. at 246, and by
failing to correct the PSR, id. at 247. After concluding Ramirez-Gonzalez’s
intervening deportation did not moot his appeal, id. at 244–45, we considered
“the merits” of his arguments under Federal Rules of Criminal Procedure 32
1
See, e.g., United States v. De La Pena-Juarez, 214 F.3d 594, 601 (5th Cir. 2000)
(district court’s “recommendation” regarding garnishment of prisoner’s earnings
“was not binding upon the BOP, and, accordingly it is not an order from which [the
prisoner] can appeal” (citing United States v. Pineyro, 112 F.3d 43, 45 (2d Cir. 1997))).
4
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No. 19-30427
and 36. Id. at 245. Despite relying on Ramirez-Gonzalez in support of its
merits argument, the Government ignores this fact.
Because the Government’s position fails to consider Ramirez-
Gonzalez, we proceed to the merits.
B.
Legros contends the district court erred by failing to correct the
erroneous drug-quantity calculation in his PSR and by failing to rule explicitly
on his objections to the firearm enhancement. Reviewing for plain error, we
hold the district court did not err in either respect.
1.
The parties dispute the standard of review. We review for plain error
unless Legros raised his objection with sufficient precision to give the district
court “the opportunity to address the gravamen of the argument presented
on appeal.” United States v. Narez-Garcia, 819 F.3d 146, 149 (5th Cir. 2016)
(cleaned up).
We conclude he did not. Legros did challenge the PSR’s drug-quantity
calculation and the firearm enhancement. But he did so only before
sentencing, as challenges to the basis for his sentence. On appeal, Legros does
not attack the sentence, which he concedes is correct. Instead, he attacks only
the district court’s failure to correct the PSR. But he never asked the district
court to make any such correction. He made no objection after the district
court suggested orally at sentencing that it would not rely on the contested
findings. And he failed to object to the court’s written statement of reasons,
which applied the career-offender enhancement and ignored the two errors
Legros now raises. Legros did not challenge this determination or request
5
Case: 19-30427 Document: 00515520312 Page: 6 Date Filed: 08/07/2020
No. 19-30427
alterations to the PSR’s now-moot drug-quantity calculation or firearm
recommendation.2
Legros’s arguments otherwise fail. First, as to the drug quantity
determination, LeGros argues our review should be de novo because both he
and the Government objected below to the PSR’s calculation. But, as
discussed above, an objection to the PSR’s calculation in support of a
sentence is not tantamount to an objection to the PSR qua the PSR. To
preserve the errors he raises now, Legros should have explicitly moved the
court to correct the PSR. He failed to do so.
Legros also relies on United States v. Mackay, in which we reviewed
the denial of a Rule 36 motion de novo “because the facts [were] undisputed,
leaving only questions of law.” 757 F.3d 195, 197 (5th Cir. 2014) (citation
omitted). But Mackay involved a direct appeal from the denial of a Rule 36
motion. Id. at 196–97. That motion gave the district court adequate
opportunity to review the defendant’s claims. Here, LeGros failed to make
any such motion.
We therefore review for plain error only. To succeed, Legros must
demonstrate “(1) an error, (2) that is clear or obvious, and (3) that affects the
defendant’s substantial rights.” United States v. Brandon, 965 F.3d 427, 430
(5th Cir. 2020) (citation omitted). “If those conditions are met,” we will
reverse “if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 430–31 (citations omitted; cleaned
2
We have consistently applied plain-error review to putative violations of Rules
32, see, e.g., United States v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004) (en banc), and 36,
see, e.g., United States v. Hernandez, 719 F. App’x 388, 389 (5th Cir. 2018) (citation
omitted); United States v. Padilla-Avilez, 318 F. App’x 276 (5th Cir. 2009) (citations
omitted).
6
Case: 19-30427 Document: 00515520312 Page: 7 Date Filed: 08/07/2020
No. 19-30427
up). Here, Legros fails to demonstrate any error at all, let alone a “clear or
obvious” error.
2.
Legros first challenges the district court’s failure to correct the PSR’s
drug quantity determination. Although he does not analyze either rule in
detail,3 he relies cursorily on Federal Rules of Criminal Procedure 32(i)(3)(B)
and 36. Neither rule affords him any relief.
Rule 32(i)(3)(B) relevantly provides that
[a]t sentencing, the court . . . must—for any disputed portion
of the presentence report . . . —rule on the dispute or
determine that a ruling is unnecessary either because the
matter will not affect sentencing, or because the court will not
consider the matter in sentencing.
We have “rejected the proposition that a court must make a catechismic
regurgitation of each fact determined; instead, [we have] allowed the district
court to make implicit findings by adopting the PSR.” Ramirez-Gonzalez, 840
F.3d at 246 (quoting United States v. Carreon, 11 F.3d 1225, 1231 (5th Cir.
1994)) (internal quotation marks omitted); see also id. at 247 (“Rule
32(i)(3)(B) does not, by its terms . . . require an explicit statement from the
court. Indeed, we have suggested that an implicit rejection may suffice.”
(alteration in original; citation omitted)).
In Ramirez-Gonzalez, we confronted an argument similar to Legros’s.
The district court held, “contrary to the PSR’s analysis,” that a certain
conviction did not qualify as an aggravated felony. Id. It stated as much in
3
Legros spends the bulk of his briefing on this point arguing that the PO did, in
fact, err in the calculation. And, although he argues review should be de novo, he argues
at some length that the errors in his PSR affect his “substantial rights.” But neither
argument establishes that the district court was under any obligation to correct the PSR.
7
Case: 19-30427 Document: 00515520312 Page: 8 Date Filed: 08/07/2020
No. 19-30427
open court and in its statement of reasons. Moreover, the PSR listed an
inaccurate total offense level—20, as opposed to 10—but the statement of
reasons listed the correct offense level. Id. at 246–47. The defendant
appealed, arguing that his erroneous PSR could affect “his ability to legally
reenter the country in the future.” Id. at 245. We accepted that this may be
true, id., but concluded that even so, the district court committed no
reversible error by failing to correct the PSR, id. at 246–47.
So too here. As in Ramirez-Gonzalez, “the district court could have
done a more specific job of explaining its deviations from the PSR and the
content of its rulings.” Id. at 246. But, as Legros concedes, the statement of
reasons correctly states the basis for the district court’s ruling, such that “a
ruling” on the drug quantity calculation “is unnecessary . . . because the
matter will not affect sentencing.” Fed. R. Crim. P. 32(i)(3)(B). “In short,
the determinations that [Legros] seeks are implicit from the court’s bench
rulings and the Statement of Reasons, and that suffices for the purposes of
Rule 32(i)(3)(B).” Ramirez-Gonzalez, 840 F.3d at 246–47.
Rule 36 is similarly unhelpful to Legros. It provides that “the court
may at any time correct a clerical error in a judgment, order, or other part of
the record, or correct an error in the record arising from oversight or
omission.” Rule 36 is a “limited tool[,] meant only to correct mindless and
mechanistic mistakes.” Ramirez-Gonzalez, 840 F.3d at 247 (citation and
internal quotation marks omitted). It applies only where “an issue was
actually litigated and decided but was incorrectly recorded in or inadvertently
omitted from the judgment.” Id. (citation omitted).
Here, even on Legros’s own argument, the PSR’s errors are by no
means “clerical.” As he acknowledges—and makes much hay of—“[t]he
probation officer . . . stands by his calculations.” Wrong or not, the drug
quantity calculation “was deliberately chosen by the probation officer who
8
Case: 19-30427 Document: 00515520312 Page: 9 Date Filed: 08/07/2020
No. 19-30427
drafted [the PSR].” Id. at 247. Accordingly, it was not “the sort of mistake
subject to correction under Rule 36.” Id. That the district court “declined to
adopt portions of the PSR in the final judgment . . . does not render the
unadopted content of the PSR a ‘clerical error.’” Id.
In sum, the district court’s refusal to correct the PSR’s drug quantity
calculations did not violate Rule 32(i)(3)(B) or Rule 36.
3.
Legros next argues the district court failed to resolve his objection to
the firearm enhancement. Although in the course of this argument he does
not specifically invoke Rule 32(i)(3)(B)—or any other legal authority—his
argument appears to implicate Rule 32(i)(3)(B)’s requirement that the
district court “rule on the dispute or determine that a ruling is unnecessary.”
Here, again, by adopting the career-offender enhancement, the
district court implicitly “determine[d] that” it was unnecessary to rule on
the firearm enhancement. FED. R. CRIM. P. 32(i)(3)(B); accord Ramirez-
Gonzalez, 840 F.3d at 247; United States v. Perez-Barocela, 594 F. App’x 224,
231 (5th Cir. 2014) (rejecting defendant’s construction of Rule 32(i)(3)(B)
“as requiring a court to state explicitly its denial of a motion or determination
that a ruling is unnecessary” (citing United States v. Aggarwal, 17 F.3d 737,
745 (5th Cir. 1994)); see also United States v. Hernandez, 457 F.3d 416, 424
(5th Cir. 2006) (imposition of within-guidelines sentence implicitly denied
request for downward departure).
AFFIRMED
9 | 01-03-2023 | 08-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4554169/ | Case: 19-10840 Document: 00515520356 Page: 1 Date Filed: 08/07/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 7, 2020
No. 19-10840 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Dewitt Donnell Bailey, also known as "Trash",
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:17-CR-28-2
USDC No. 5:18-CV-233
Before Dennis, Southwick, and Engelhardt, Circuit Judges.
Per Curiam:*
Dewitt Donnell Bailey, federal prisoner # 55530-177, pleaded guilty,
pursuant to a written plea agreement, to possession with intent to distribute
28 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a),
(b)(1)(B)(iii). The sentencing court imposed a top-of-the-guidelines
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
Case: 19-10840 Document: 00515520356 Page: 2 Date Filed: 08/07/2020
No. 19-10840
sentence of 151 months in prison to be followed by four years of supervised
release. Bailey now moves for a certificate of appealability (COA) to
challenge the district court’s denial of his 28 U.S.C. § 2255 motion in which
he argued that he received ineffective assistance of counsel such that his
guilty plea was rendered unknowing, unintelligent, and involuntary. Bailey
further asserts that the district court erred in denying his § 2255 motion
without holding an evidentiary hearing.
To obtain a COA, a movant must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel,
529 U.S. 473, 483 (2000). Bailey can satisfy this standard by “demonstrating
that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude that the issues presented
are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003); see Slack, 529 U.S. at 484. Bailey has not
met this standard. See Miller-El, 537 U.S. at 327.
The motion for a COA is DENIED. Bailey’s motion to proceed in
forma pauperis (IFP) is, likewise, DENIED. We construe Bailey’s motion
for a COA with respect to the district court’s denial of an evidentiary hearing
as a direct appeal of that issue, see Norman v. Stephens, 817 F.3d 226, 234 (5th
Cir. 2016), and AFFIRM.
COA DENIED; IFP DENIED; AFFIRM
2 | 01-03-2023 | 08-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3408743/ | The petitioner brought a bill for injunction in equity to prevent the Territory of Hawaii from entering upon certain private lands belonging to strangers to him and from constructing thereon a public highway. The bill was brought after the Territory by its attorney general filed an action of eminent domain to condemn those lands for the purpose of constructing that highway and that action is now pending at law. The petitioner is not a party to that action and in these proceedings has neither alleged nor proved that he has any interest in the lands sought to be condemned. His bill, however, alleges that he is a taxpayer and "comes on behalf of himself and all other taxpayers and citizens of the Territory of Hawaii." It further alleges, as the sole ground for injunction before this court, that the statutes on eminent domain, under which the Territory is proceeding to condemn such lands and which are in the process of being administered by the law court in the pending action at law, are unconstitutional because in substance they permit those lands to be taken without adequate compensation to the defendants therein and thereby deprive them of the "due process of law" guaranteed by the Fifth Amendment of the Constitution. After issue was joined and a hearing held, the presiding judge in equity by written decision held in effect (1) that the petitioner is a taxpayer, who contributes in the form of territorial fuel taxes to the territorial highway fund out of which moneys may be expended to compensate the defendants in the pending action at law and to construct the proposed public highway, and he therefore "* * * in his own right and also as representative of a class, is entitled to pursue this proceeding for injunctive relief," presumably on the theory that he purchases gasoline to operate his automobile and is one of the ultimate consumers of gasoline to whom are passed the economic burden of the territorial *Page 69
fuel taxes, directly levied against and paid by the distributors of gasoline to the general public; (2) that petitioner has "failed to prove that the proposed expenditures of government money would be a squandering of that money"; (3) that "the petitioner has the right to press an attack upon the condemnation procedure provided under the statutes of the Territory as being unconstitutional"; (4) that, "even if he has not that right, there are no limitations upon the right of the Chancellor to apply the law as he understands it to any state of facts properly placed before him"; (5) "that, in this connection, the condemnation practice prescribed in the statutes of Hawaii is unconstitutional in not providing for the payment of any judgment for damages which might be recovered by a landowner against the Territory pursuant to section 318 of the Revised Laws, thus possibly depriving a person of his property `without due process of law' as forbidden by the federal constitution"; (6) that the construction of the proposed public highway would involve "an illegal expenditure of money from the Territorial highway fund" because the statutes on eminent domain are unconstitutional as set forth in the preceding holding. On these holdings, the presiding judge in equity entered a decree permanently enjoining the respondents "from prosecuting, moving in, proceeding any further with, and taking any further action in the pending action at law and from proceeding any further in the construction of the proposed public highway. The respondents appeal from that decree.
There are five specifications of error, any one of which, if sustained, would require reversal of the decree. They challenge all the holdings on which the decree is predicated and hence do not pertain to holding (2) as to failure to prove a squandering of government money. For the purposes of this opinion it is sufficient to consider but one specification, which challenges holding (3) that "the petitioner *Page 70
has the right to press an attack on the condemnation procedure provided under the statutes of the Territory as being unconstitutional."
Assuming without deciding the petitioner to be a taxpayer of the Territory, the general rule is that a taxpayer has no right to complain that another may be hurt by the invalidity of a statute and is not permitted to sue for the benefit of other taxpayers and to assail the invalidity of that statute where he is not personally injured by it. (Yarborough v. North CarolinaPark Commission, 196 N.C. 284, 145 S.E. 563; Coble v.Comrs., 184 N.C. 342, 114 S.E. 487; Hooker v. Burr,194 U.S. 415; Tyler v. Judges of Court of Registration,179 U.S. 405; McCabe v. A., T. S.F. Ry. Co., 235 U.S. 151, 162.) That rule applies with full force to the petitioner in his status of taxpayer so assumed. He admittedly has no interest whatsoever in the lands sought to be condemned. Nor has he alleged or proved any interests or property of his own capable of being injuriously affected or requiring protection of the constitutional guarantee. On the contrary, the only grievance arising under the alleged unconstitutionality of the statutes is that of the defendants in the pending action of eminent domain for which they have an adequate legal remedy in those proceedings themselves. (SeeMarks v. Ackerman, 39 Haw. 53.) Those defendants, not the petitioner, are within the class protected by the constitutional guarantee and they rather than he may invoke it. But if they do not choose to do so, he would not be injured. The petitioner thus is a total stranger to any damage which might ensue from the alleged invalidity of statutes involving property rights peculiar to such defendants and has no standing in any court. He therefore has no right to complain and his charge of invalidity presents no judicable issues in equity. The holding to the contrary is erroneous and so is the decree. *Page 71
The petitioner contends that in this jurisdiction he is not required to show that any interests or property of his own would be injuriously affected by the statutes which he claims to be unconstitutional. To support that contention he cites a line of Hawaiian cases, i.e., Castle v. Kapena, 5 Haw. 27; Lucas v.Amer. Haw. E. C. Co., 16 Haw. 80; Castle v. Secretary ofthe Territory, 16 Haw. 769; McCandless v. Carter, 18 Haw. 221, but principally relies upon language in the latter case cited. That language (p. 224) reads: "Perhaps a citizen and taxpayer's right to obtain injunctions to restrain official acts affecting public property ought not to be based on the pecuniary loss, howsoever trivial or conjectural, but on the broad ground that any citizen may obtain a judicial inquiry into the validity of such acts and an injunction against them if found to be authorized." Although the cited cases themselves have no application to the petitioner's case as will be hereinafter set forth, it is proper at this juncture to consider the quoted language in McCandless v. Carter, supra, with respect to its authoritative holding. That language is pure dictum and constitutes no part of the authoritative holding of that case, the question of the right involved in such language not being decided by this court as indicated in McCandless v. Pratt,211 U.S. 437. But this court has made an authoritative holding as the final word upon the subject in an implied disapproval of such quoted language. It did so in Wilder v. Pinkham, 23 Haw. 571, by the following language (p. 573): "The theory upon which a suit by a taxpayer to restrain the illegal expenditure of public money may be maintained is that of protection to the property rights of the complainant. Castle v. Secretary, 16 Haw. 769, 776;Crampton v. Zabriskie, 101 U.S. 601; 5 Pom. Eq. Jur. Secs. 344, 345. The complainant must show some damage (McCandless v.Pratt, 211 U.S. 437), but it is enough that the circumstances are such that damage *Page 72
to all taxpayers may be presumed. Lucas v. Haw. E. C. Co.,16 Haw. 80, 86. Upon this view of the matter, it would probably have to be held that upon the death of a complainant before the decree those persons who succeeded to his property interests would have the right to revive the suit. Gurley v. NewOrleans, 124 La. 390." Thus in this jurisdiction damage to the extent that some interests or property of the taxpayer would be injuriously affected by illegal acts of public officials, about to be committed in expending public money or creating a public debt and requiring prompt action to prevent irremediable public injury, is the requisite of his right to sue and prevent the violation of law by injunction to restrain those acts. This is true even though such damage may be presumed where the consequences of the law's disregard, which renders the acts themselves illegal, are so obvious that no proof of actual pecuniary damage to the taxpayer is necessary. That requisite complements the general rule that a taxpayer has no right to complain of another's hurt and to assail the validity of a statute where he is not personally injured by it.
The Hawaiian cases cited by the petitioner, as already indicated, deal with illegal acts about to be committed by public officials and requiring prompt action to prevent irremediable public injury of such obvious consequences that interests or property of the taxpayer seeking to restrain those acts will be injuriously affected. They have no application to the petitioner's case which involves no such illegal acts. On the contrary, it affirmatively appears that only legal acts are involved therein as may be authorized by statute and sanctioned by a court of law. Neither does the petitioner argue that any of the respondents has violated or threatens to violate any statute or any order of court. Nor does he argue that the court of law, in which the pending action of eminent domain was *Page 73
filed, is not the proper and fully competent tribunal having jurisdiction to pass upon the constitutionality of the statutes so as to preclude the commission of those acts if those statutes be found invalid. In short, the petitioner attempts in substance to have a court of equity interfere with a court of law and with the prosecution of a pending action at law merely because the statutes being there administered are claimed by him to be unconstitutional without attempting to show further circumstances bringing his case within some clear ground of equity jurisdiction. But his status of taxpayer, if any, gives him no right, cognizable under any equitable principles, to such an interference. A question of constitutionality in itself constitutes no cause of action and invokes no recognized equity jurisdiction. (Cruickshank v. Bidwell, 176 U.S. 73; BoiseArtesian Water Co. v. Boise City, 213 U.S. 276; Terrace v.Thompson, 263 U.S. 197; Asplund v. Hannett [N.M.],249 P. 1074.) The petitioner's failure to allege or prove any actual or threatened illegal acts of the respondents, about to be committed and requiring prompt action to prevent irremediable public injury, distinguishes his case from the Hawaiian cases cited. His failure to allege or prove any interests or property of his own, capable of being injuriously affected by the respondents doing that which they have been enjoined below from doing, decisively demonstrates within the general rule his failure to state and establish a cause of equitable cognizance warranting a court of equity to exercise its extraordinary powers of injunctive relief. By reason of these jurisdictional failures, the presiding judge in equity had no jurisdiction other than to dismiss the petition.
The decree granting permanent injunction is reversed. On presentation, this court will enter a new decree dismissing the petition. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3408741/ | This case is before us upon the motion of petitioners, defendants in error, to quash and dismiss the writ of error of the respondents, plaintiffs in error. The motion is based upon six grounds hereinafter separately considered.
1. Ground one is that "the writ of error herein is addressed to the `circuit court of the first judicial circuit, Territory of Hawaii' whereas in truth and in fact the decree sought to be reviewed by said writ of error was rendered and the proceeding resulting in said decree took place in the court of the circuit judge, at chambers, in equity, first judicial circuit, Territory of Hawaii." The record before us discloses that the writ of error is not addressed to the "circuit court" as above alleged but to the "clerk of the circuit court" as specifically permitted by section 2532, R.L. 1925, and in the form therein approved. Nowhere in the writ does it appear that the record ordered to be sent up is in other than an equity case and the case and tribunal are therein sufficiently identified by title and by the caption "Writ of Error to Decree of Circuit Judge, First Judicial Circuit, Hon. Chas. S. Davis, Third Judge Presiding," read in connection with the reference in the body of the writ to "the above entitled case" and the command to send "to the supreme court the record in said case." *Page 997
In this Territory there is no statutory provision for "clerks of circuit judges in chambers" as distinguished from "clerks of circuit courts." Section 2291, R.L. 1925, provides, among other things, for the appointment and removal of "clerks of circuit courts." Section 2294, as amended by Act 171, L. 1929, in part provides that such clerks of circuit courts shall have custody of the records and other things therein named. Section 2297 prescribes the powers of "clerks of courts of record," which powers include, among others, acting ex officio as masters in chancery, attending and recording "the proceedings at all sittings of courts of record and in proceedings before a circuit judge in chambers." A writ, therefore, addressed to the "clerk of the circuit court" is properly addressed under the provisions of section 2532, R.L. 1925, whether the proceeding sought to be reviewed is at law or in equity. A writ so addressed in the circumstances above recited is not a writ addressed to the "circuit court." The facts as above set forth being other than as alleged in paragraph I of the motion, the motion is not sustainable on the ground therein urged.
2. Petitioners' second ground for their motion to quash is therein stated as follows: "The respondents, plaintiffs-in-error, and their counsel, have failed to serve a notice upon petitioners, defendants-in-error, that application for a writ of error has been filed, pursuant to section 2530, Revised Laws of Hawaii, 1925, since the notice which was served upon petitioners, defendants-in-error, reads `You and each of you will please take notice that application has been filed this day for a writ of error from the supreme court of the Territory of Hawaii in the above entitled matter, addressed to the circuit court of the first judicial circuit, Territory of Hawaii,' whereas in truth and in fact the decree sought to be reviewed resulted from a proceeding in the court of the circuit *Page 998
judge, at chambers in equity, first judicial circuit, Territory of Hawaii."
Section 2530, R.L. 1925, above referred to, provides as follows: "An assignment of errors shall be filed with the application for the writ. Service of a copy of such assignment of errors shall be made upon the defendant in error or his attorney of record, or upon the legal or personal representative of a deceased party. Such copy shall bear a notice from counsel that application for a writ of error has been filed. Proceedings upon a writ of error shall be deemed to be a continuation of the original cause." The notice, as the record shows, reads in part as alleged in the above quoted motion to quash; but attached to the notice were copies of the application for the writ, the writ itself, the assignment of errors and the bond, all referred to in the notice. The application was addressed to the clerk of the supreme court of the Territory of Hawaii and asked that a writ of error "in the above entitled cause" be issued "to the clerk of the circuit court of the first judicial circuit," etc. The application was entitled and captioned in the same manner as the writ itself as hereinabove set forth and was in the form specifically provided by section 2531, R.L. 1925. It did not ask that the writ be addressed to the "circuit court of the first judicial circuit" or otherwise than as above recited. Furthermore, in the body of the assignment of errors the case is referred to by its full title with the addition that it is "equity number 3294," and with the date of the decree correctly given as August 21, 1933. The bond on writ of error attached to the notice and entitled and captioned in the same manner as were the application, assignment, writ and notice, expressly recited that the case was "at chambers in equity" and gave its full title, equity number and date of its decree. Petitioners thus had full notice of the identity of the case in which *Page 999
writ of error was sought. In view of the foregoing facts it cannot be held as urged by counsel in paragraph II of their motion that "the respondents * * * have failed to serve a notice upon petitioners * * * that application for a writ of error has been filed, pursuant to section 2530, Revised Laws of Hawaii, 1925."
3 and 4. The third and fourth grounds of petitioners' motion to quash may be considered together. The third ground is thus stated in the motion: "The United States Fidelity and Guaranty Company, one of the parties, against whom the decree of the circuit judge, at chambers in equity, was jointly rendered, has not joined or been joined as a party in the within writ of error and there is therefore a nonjoinder of a necessary party in the writ of error herein." The fourth ground is as follows: "The respondents, plaintiffs-in-error, have failed to effect a severance as provided by section 2525, Revised Laws of Hawaii, 1925 for the reason that the name of the United States Fidelity and Guaranty Company has not been used in the writ of error herein and the United States Fidelity and Guaranty Company has not been served with a copy of the assignment of errors and notice that a writ of error has issued." The alleged defects referred to in paragraphs numbered three and four are not apparent in the application, writ of error, assignment of errors and papers filed therewith as hereinabove set forth by the respondents, plaintiffs in error, and they are sought to be brought to our attention by reference in the motion to the files and records of the case and the affidavit of one of the attorneys for the petitioners, defendants in error. The affidavit alleges upon information and belief that the United States Fidelity and Guaranty Company has not been served with a copy of the assignment of errors or notice that a writ of error has issued in the above entitled cause, and that the United States Fidelity and Guaranty Company has *Page 1000
not joined or been joined as a party in the above entitled writ of error.
The record shows that under date of September 12, 1932, L.V. Cadinha, as principal, and the United States Fidelity and Guaranty Company, as surety, executed a bond in the sum of $10,000 to the petitioners, the condition of which bond is therein expressed as follows: "The condition of this obligation is such that, whereas, there is now pending in the above entitled court and cause the petition of petitioners praying for affirmative relief, which said petition is made a part hereof by reference, now therefore, if upon said suit being tried, a decree shall be rendered in favor of the petitioners or any of them or any other persons, firms and/or corporations entitled to relief under the pleadings herein, and if said decree shall be wholly and completely satisfied by said respondents or any of them, then this obligation to become null and void, otherwise to remain in full force and effect." The date of the above quoted bond and of the filing thereof is nine days prior to the date of the filing in said proceedings of the answer of respondents. In the memorandum in support of their motion to dismiss writ of error, counsel for petitioners, defendants in error, say: "Prior to the trial in the court below, the plaintiffs-in-error moved for various postponements of the trial. In view of the breach of fiduciary duty charged in the bill of complaint and the further fact that the alleged trust estate was then in the hands of the respondents and subject to dissipation by the latter, the circuit judge at chambers imposed upon the respondents the requirement of a bond in the amount of ten thousand dollars ($10,000.00) as a condition to the granting of a further delay." The record before us is silent as to the circumstances above recited requiring the execution of the bond above referred to. Under date of May 1, 1933, an interlocutory decree in favor of petitioners *Page 1001
was filed. This was followed, under date of August 21, 1933, by final decree in conformity therewith, which, after certain recitals, proceeded as follows: "And whereas, on the 12th day of September, 1932, a bond was filed in the above entitled action by the respondents with the United States Fidelity and Guaranty Company as surety, conditioned upon the whole and complete satisfaction of this decree by the respondents above named or any of them; it is ordered, adjudged and decreed that the interlocutory decree and the report of Matthew M. Graham, master, heretofore filed herein, be incorporated in this final decree by reference and made a part hereof as if fully set forth herein. It is further ordered, adjudged and decreed that L.V. Cadinha, as assignee for the benefit of the creditors of New York Dress Company, Limited, an Hawaiian corporation, L.V. Cadinha, individually, C.T. Davenport, and C D Dress Company, Limited, an Hawaiian corporation, the respondents above named, pay to Mid-Pacific Dress Manufacturing Company, Limited, an Hawaiian corporation, Theo. H. Davies Company, Limited, an Hawaiian corporation, and V.D. Doty, petitioners above named, the sum of eight thousand three hundred seventy-seven and 30/100 dollars ($8,377.30), together with interest at eight percent (8%) per annum from April 22, 1933, petitioners' attorneys' fees in the amount of $2,000.00 and costs taxed at $1368.55. It is further ordered, adjudged and decreed that the United States Fidelity and Guaranty Company pay the above named petitioners the sum of ten thousand dollars ($10,000.00) on account of said monetary decree and thereupon its said bond be cancelled."
Up to the time of the final decree the United States Fidelity and Guaranty Company does not appear to have been a party to the above entitled suit nor to have received or waived notice, nor to have entered any appearance in *Page 1002
any proceeding against itself therein. The decree against it in the absence of any contrary showing in the record before us appears to have been summary and ex parte. Whether or not in the circumstances above recited respondents, plaintiffs in error, are for any purpose required to serve a copy of assignment of errors and notice that writ has issued, to a nonjoining surety on its bond for satisfaction of decree, it is unnecessary for us to decide for two reasons, namely, (a) that such copy and such notice have now been served within the time provided for service upon nonjoining persons generally by section 2525, R.L. 1925, and (b) that failure to serve such copy and such notice is nowhere made a ground for dismissing said writ. These points will be considered in order.
(a) Entry by the circuit judge of final decree as above set forth was under date of August 21, 1933. Service on the United States Fidelity and Guaranty Company of such notice and copy of assignment of errors, as shown by certificate on record in this court, was made December 15, 1933, less than four months thereafter. Section 2525, R.L. 1925, provides as follows: "In case the judgment, order or decree sought to be reviewed was rendered against two or more persons, either or any of such persons may apply for a writ of error and for that purpose shall be permitted to use the names of all such persons. The applicant shall serve those of such persons who have not joined in the application and who can be found within the Territory with a copy of the assignment of errors and notice that a writ of error has issued. Such persons shall be entitled to be heard in the supreme court; and any of them may at any time before the case is heard and within six months from the entry of such judgment, order or decree, file in the supreme court an additional assignment of errors, a copy of which shall be served upon each of the other parties to the proceeding. All such cases *Page 1003
shall be determined in the same manner as if all such persons had joined in the application for the writ, but no costs shall be taxed against any such person who did not join in the application nor ask to be heard in the supreme court. The order of names of parties shall be the same in the supreme court as in the circuit court." It is noted that Act 37, L. 1931, amending section 2521, R.L. 1925, as amended by Act 211, L. 1925, neither expressly nor by implication amends section 2525, R.L. 1925. Under section 2521, as now amended, a writ of error in the circumstances named may be issued within ninety days from the entry of the decree, but this provision is not inconsistent with or repugnant to the above quoted provisions of section 2525, to the effect that persons against whom a decree has been rendered, who have not joined in the application for writ of error "shall be entitled to be heard in the supreme court; and any of them may at any time before the case is heard and within six months from the entry of such * * * decree, file in the supreme court an additional assignment of errors," etc. The case has not yet been heard and the six months' period has not yet elapsed. No express limitation is provided by statute as to the time within which the notice herein referred to shall be given. In the instant case it was given in ample time to enable the surety in the event that it comes within the classification of nonjoining persons referred to in the statute to protect its rights.
(b) As to the effect in the above circumstances of failure of service of notice of application for writ and copy of assignment of errors: In Laupahoehoe Sugar Co. v. Lalakea, 27 Haw. 682, this court held, as set forth in the syllabus: "In an appeal to this court from the decree of a circuit judge at chambers, the filing in court of the notice of appeal within five days and the payment of costs accrued and the filing of a bond for costs to accrue *Page 1004
within ten days are the effective appellate acts which give to this court the power to review the decree complained of. Service on the appellee or on non-appealing co-parties of a copy of the notice of appeal does not constitute a part of the appeal and is not essential to the jurisdiction of this court to review the decree appealed from." The opinion in the case last above cited dealt with appeals. By analogy it is also applicable to writs of error. It dealt in part with Act 45, L. 1919, now section 2510, R.L. 1925, providing, among other things, for severance and for service of notice upon nonjoining persons upon appeal. Section 2510 is similar to section 2525; the only essential difference between them is that the former applies to appeals and the latter to writs of error. The requisites of an appeal are set forth in another section, now 2509. Service of notice of the kind hereinabove referred to is not one of those requirements. Quoting from the text of the opinion in Laupahoehoe Sugar Co. v.Lalakea, supra, on pages 686 and 687: "Nor does Act 45, S.L. 1919, make any provision to the contrary. It does require that `appellant shall serve those of such persons who have not joined in the appeal and who can be found within the Territory, with a copy of the notice of appeal,' but it does not limit the time within which such copy shall be served nor does it in anywise provide or indicate that the failure to make such service shall render incomplete and ineffectual appellant's attempt to appeal. Had the legislature intended by this Act to modify the preexisting law and the long-continued practice thereunder, with which it must be deemed to have been familiar, it could easily have provided and would naturally be expected to provide, in unambiguous language, that no appeal should be deemed complete or effectual unless a copy of the notice thereof was served upon the persons named within a specified time. Under our statute, it is the *Page 1005
filing in court of the notice of appeal which is the effective appellate act giving this court the power to review the particular decree complained of. The service of a copy of this notice, required by the Act of 1919, is not jurisdictional but is merely a matter of procedure." Counsel for movants have cited earlier cases in support of a different rule upon exceptions and writs of error. The cases so cited are Robinson v. Kaae,22 Haw. 397; Territory v. Ah Sing, 18 Haw. 392; Ting v.Born, 21 Haw. 638; Bowler v. McIntyre, 9 Haw. 306; Castle
v. Kapiolani Estate, 16 Haw. 33, and Kealoha v. HalawaPlant'n., 24 Haw. 436. The cases so cited were all decided prior to the effective date of the statutes of 1919 referred to inLaupahoehoe Sugar Co. v. Lalakea, supra, and hereinafter referred to. Taken together they deal with appeals, exceptions and writs of error and announce no material distinction in the application of the rule for which they are cited in the three classes of appellate proceedings.
Referring to the last of the six cases cited by counsel as above narrated, this court, in Laupahoehoe Sugar Co. v.Lalakea, on page 690 said: "In Kealoha v. Halawa Plantation,Limited, and H.H. Perry, 24 Haw. 436, the defendant Halawa Plantation, Limited, brought a bill of exceptions to this court. The defendant Perry did not join in that bill of exceptions. Plaintiff moved to dismiss the bill of exceptions on the ground that `the defendant Henry H. Perry is not a party thereto, either as appellant or appellee and that the appellant the Halawa Plantation, Limited, is not entitled as a matter of law or right to have its said bill of exceptions considered by this court,' because evidently the co-defendant Perry was not served with notice of the bill of exceptions. Whether in this respect a bill of exceptions is distinguishable from an appeal in an equity suit we need not now determine. Perhaps it is and perhaps it is not. All that need be *Page 1006
now said is that if the two cases are not distinguishable, the decision in the Halawa Plantation case is now overruled." The analogy between the requirements upon appeal and upon writ of error is apparent. The prerequisites to the issuance of a writ of error like those of an appeal are specifically provided by law. In civil cases the statutes applicable are section 2521, as amended by Act 211, L. 1925, and by Act 37, L. 1931, section 2527, as amended by Act 211, L. 1925, sections 2529, 2530 and 2531. None refer to service of notice of the kind now under consideration. Severance and service of notice and copy of assignment are provided by Act 44, L. 1919, now section 2525, R.L. 1925, in terms almost identical with those used in section 2510, with reference to service and notice upon appeal.
Following the reasoning hereinabove quoted in LaupahoehoeSugar Co. v. Lalakea, and adapting it to the facts and issues now before us the conclusion is reached that upon writ of error to review a decree against two or more persons, either or any of whom have not joined in the application for the writ, failure of the applicant to serve any such person who has not joined in the application and who can be found within the Territory with a copy of the assignment of errors and notice that a writ of error has issued, in the circumstances above recited, is not sufficient ground for dismissal of the writ.
5. Petitioners' fifth ground of their motion to quash is therein stated as follows: "Each and every one of the ninety (90) assignments of error of respondents, plaintiffs-in-error, fails to specify clearly, certainly and completely the alleged error complained of, and is so general and insufficient that it does not advise this court or petitioners, defendants-in-error, of the respect in which the lower court erred, but on the other hand, throws the burden of searching the entire record and the transcript *Page 1007
upon this court and the petitioners, defendants-in-error, to locate the error complained of." The foregoing averment does not require us to examine, for the purpose of passing upon this ground of plaintiffs' motion, each and every one of respondents' ninety assignments of error. If any one assignment is sufficient petitioners' ground number five cannot be sustained. Inferentially and indirectly in point is Taba v. Jardin,30 Haw. 337, 339, and cases therein cited to the effect that "it is settled in this jurisdiction `that if one or more exceptions are properly incorporated in the bill and presented to the judge within the time allowed by law, * * * the bill cannot be dismissed,'" citing Kauhane v. Laa, 19 Haw. 526, 527;Harrison v. Magoon, 16 Haw. 170, 172, and Territory v.Cotton Bros., 17 Haw. 608, 611. By analogy the same rule is applicable to assignments of error. Assignments numbered sixty-three, sixty-seven, sixty-eight, seventy-three and ninety are as follows: "LXIII. The court erred in its said final decree in giving judgment against respondents for a sum of $250.00 as representing moneys actually paid as an attorney's fee in connection with the dissolution of the New York Dress Company, Limited, when in fact only $150.00 was paid for such purpose, and when nothing in the evidence or in the master's report justified any judgment against respondents in this connection at all." "LXVII. The court erred in entering its said final decree in that by said final decree it awards to petitioners alone an entire trust res which, if actually held in trust at all, would necessarily be held for many persons other than petitioners, and to only a small portion of which petitioners could possibly be entitled." "LXVIII. The court erred in its said final decree in that by said decree it adjudged that properties erroneously found by it to have a value of $8,377.30 were held by respondents as trustees for the creditors of New York Dress Company, *Page 1008
Ltd., and then in adjudging that the entire amount be paid to only three of all of the many creditors of said corporation." "LXXIII. The court erred in finding in its said final decree that `the aforesaid report of Matthew M. Graham reveals that the value of the trust estate of May 13, 1933, was eight thousand three hundred seventy-seven and 30/100 dollars ($8,377.30),' whereas the master's report shows nothing of the kind." "XC. The court erred in making and entering its final decree in that the amount for which judgment was rendered against respondents in said decree was a purely arbitrary amount without any foundation in the evidence in any recommendations made by the master and without any foundation in law."
The five assignments last above quoted, at least to the extent that they allege a total failure of evidence to support specific findings, or specific relief granted in the decree and definitely set forth in the assignments, are prima facie sufficient to require a consideration of them upon their merits and to defeat a motion to dismiss the writ of error based, as in ground five, upon the alleged insufficiency of the assignments as a whole. No opinion is now expressed as to the sufficiency or insufficiency of any one or more of the remaining eighty-five assignments.
6. The sixth ground upon which dismissal of the writ is asked is thus set forth in the motion: "The respondents, plaintiffs-in-error failed to aver the jurisdictional fact that execution of the decree of the lower court had not been fully satisfied prior to the issuance of the writ of error herein." In this case, as hereinabove stated, the application for the writ was in the form expressly provided by section 2531, R.L. 1925. The motion is expressly based in part upon the record which is before us for examination. The record nowhere discloses that the decree has been fully satisfied and movants do not aver that it has been *Page 1009
so satisfied. Paraphrasing the opinion of this court upon the same question in Ting v. Born, 21 Haw. 638, 640: If, as a matter of fact, it had been so satisfied, this was a fact incumbent upon the defendants in error to show. They have not shown this fact and it does not otherwise appear. It cannot be assumed or imported into the record by presumption.
The circumstances of this case in the particulars last above recited are similar to those set forth in In re Kakaako,30 Haw. 494. Upon reason and the authority of the two cases last above cited movants' sixth ground above quoted is not sufficient to warrant dismissal of the writ.
The motion is denied. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4554170/ | Case: 20-20068 Document: 00515519841 Page: 1 Date Filed: 08/07/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 20-20068 FILED
August 7, 2020
DONALD CALHOUN,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
JACK DOHENY COMPANIES, INCORPORATED,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before JOLLY, GRAVES, and DUNCAN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This interlocutory appeal arises from the denial of a preliminary
injunction, which Jack Doheny Companies (JDC) sought against its former
employee, Donald Calhoun, for breach of a non-compete agreement. Although
the district court found the agreement likely to be overbroad and unenforceable
under Texas law, it declined to preliminarily reform the agreement into one
with reasonable terms pursuant to the Texas Covenants Not to Compete Act,
holding that the record was not yet developed enough for such reformation to
be appropriate. In short, the district court denied the motion for a preliminary
injunction in all its parts and with no concessions.
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No. 20-20068
We hold that the district court, after acknowledging the agreement to be
overbroad, erred in declining to adjudicate reformation of the agreement. As
we shall show, it should have considered reformation of the agreement in the
process of deciding the preliminary injunction motion. We therefore vacate
and remand to the district court to allow relevant evidence and argument from
the parties concerning reformation. The district court should then decide what
reformation, if any, would be reasonable under Texas law, and proceed to
adjudicate the preliminary injunction motion in the light of its findings on
reformation.
I.
Jack Doheny Company (JDC) sells, rents, and repairs “industrial utility
vehicles” like garbage trucks and street sweepers. Donald Calhoun worked for
JDC in a sales position in Texas from 2010 to 2019. During the course of his
employment, Calhoun signed a contract labelled “Employee Confidentiality
and Non-Competition Agreement.” Part of that agreement stated that
Calhoun “shall not perform, in North America, service for, become engaged by,
or aid, assist, own, operate or have any financial interest in a company that is
in the [industrial utility vehicle business]” for two years after leaving JDC.
Soon after Calhoun left JDC, he began working for Custom Truck One
Source (Custom Truck). JDC discovered that Calhoun was working for Custom
Truck when an email to Calhoun from a potential customer was inadvertently
sent to Calhoun’s old JDC email address instead of his new Custom Truck
address.
After this discovery, JDC sent Calhoun a cease-and-desist letter
requesting that he “refrain from competing with [JDC] per the terms of the
Non-Competition Agreement.” Calhoun then sued JDC in Texas state court,
2
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No. 20-20068
seeking a declaratory judgment that the non-compete agreement is
unenforceable for overbreadth. 1
JDC removed the case to federal court and filed a counterclaim alleging
breach of the employment agreement. JDC asked the court to enjoin Calhoun
from employment with Custom Truck for two years and to enjoin him from
“soliciting, servicing, or contacting JDC’s customers and leads[.]”
In September 2019, JDC moved for a preliminary injunction. The
district court held a hearing on the motion, but rather than allowing the parties
to call and cross-examine witnesses, the court instead told counsel for both
parties “I’ll let you guys just tell me what your witnesses, if they were called,
would testify to,” which they did. Because of this approach, JDC was, among
other impairments to the presentation of its case, unable to elicit testimony
from Calhoun that JDC hoped would establish that Calhoun had been first to
reach out to—i.e. to solicit—the customer who sent the misdirected email.
After a recess, the court denied the preliminary injunction in an oral
ruling from the bench, finding that although the agreement was likely to be
found unenforceable for overbreadth at final judgment, it was not reformable
at this stage of the proceedings. At JDC’s request, a written order denying the
preliminary injunction followed, from which JDC took this interlocutory
appeal.
II.
We “review a preliminary injunction for abuse of discretion, reviewing
findings of fact for clear error and conclusions of law de novo.” Texans for Free
Enter. v. Tex. Ethics Comm’n, 732 F.3d 535, 537 (5th Cir. 2013). “A preliminary
1 Calhoun’s violation of the non-compete agreement as it is written is not in dispute,
as it requires Calhoun to refrain from working in any capacity for any competitor of JDC.
Calhoun’s defense rests instead on the alleged overbreadth and unenforceability of that
agreement.
3
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No. 20-20068
injunction is an ‘extraordinary remedy’ that should be granted only if the
movant establishes,” among other things, “a substantial likelihood of success
on the merits[.]” Id. at 536–37.
We begin with the district court’s holding that the agreement as written
was likely to be found overbroad at final judgment. Both parties agree that
Texas law applies. In Texas, “[c]ovenants that place limits on former
employees’ professional mobility or restrict their solicitation of the former
employers’ customers and employees are restraints on trade and are governed
by the [Covenants Not to Compete] Act.” Marsh USA Inc. v. Cook, 354 S.W.3d
764, 768 (Tex. 2011).
The Act provides that
a covenant not to compete is enforceable . . . to the extent that it
contains limitations as to time, geographical area, and scope of
activity to be restrained that are reasonable and do not impose a
greater restraint than is necessary to protect the goodwill or other
business interest of the promisee.
Tex. Bus. & Com. Code § 15.50(a).
As our court has previously noted, “[u]nder Texas law, covenants not to
compete that extend to clients with whom the employee had no dealings during
her employment or amount to industry-wide exclusions are overbroad and
unreasonable.” D’Onofrio v. Vacation Publications, Inc., 888 F.3d 197, 211–12
(5th Cir. 2018) (brackets and quotation marks omitted). For that reason, the
district court was correct to find that JDC is unlikely to prove the agreement
enforceable as written and therefore not entitled to a preliminary injunction
enforcing the terms of the agreement.
III.
We next address whether, having found the agreement likely overbroad,
the district court, at this preliminary stage, should have tentatively reformed
4
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No. 20-20068
the agreement and, in its preliminary injunction analysis, considered that
reformation.
The Texas Covenants Not to Compete Act states that if a non-compete
covenant is found to be unreasonably overbroad, “the court shall reform the
covenant to the extent necessary to cause” the covenant to be reasonable. Tex.
Bus. & Com. Code § 15.51(c). But in its order denying a preliminary injunction,
the district court held that, solely because the record was inadequate, the
agreement could not “be reformed at present into a simple ban on solicitation
of JDC customers.” In support of this finding, the court said reformation “will
not be possible until, at a minimum, the Court knows exactly what Calhoun
did [with respect to customer contact] and which JDC clients Calhoun dealt
with while he worked at JDC.”
In the light of Texas authority, the district court erred. Although the
court obviously would have needed to know what Calhoun did to violate a
reformed non-solicitation agreement in order to enter any injunction, it could
have taken evidence that the parties were apparently ready to offer.
Furthermore, the district court did not need a complete list of Calhoun’s former
customers because “customer lists and names need not be specifically proved
in evidence or stated in the permanent injunction.” Safeguard Bus. Sys., Inc.
v. Schaffer, 822 S.W.2d 640, 644 (Tex. App.—Dallas 1991, no writ). A court
may simply reform an agreement into one “generally restraining solicitation of
customers and not specifically listing the individual customers[.]” Bertotti v.
C.E. Shepherd Co., Inc., 752 S.W.2d 648, 656 (Tex. App.—Houston [14th Dist.]
1988, no writ). It can be assumed that Calhoun “is sufficiently familiar with
[JDC’s] business and its customers to avoid violating” a generally worded
covenant. Schaffer, 822 S.W.2d at 644.
Moreover, we should point out that the preliminary injunction inquiry
requires the court to determine the likelihood of final success on the merits.
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This determination would necessitate an examination of Texas law. If the
agreement at issue is overbroad, then final adjudication on the merits—per
Texas law—will clearly involve reformation. See Tex. Bus. & Com. Code
§ 15.51(c). That is to say, to determine the likelihood of success of JDC’s claim
requires an examination of Texas law, which would have shown that success
could only be achieved through reformation. This conclusion would lead to
Texas authority that strongly suggests, if not requires, reformation of an
agreement at the preliminary injunction stage. See Tranter, Inc. v. Liss, No.
02-13-00167-CV, 2014 WL 1257278, at *7 (Tex. App.—Fort Worth Mar. 27,
2014, no pet.) (finding that although a noncompete agreement was overbroad,
the employer had “established a probable right to recovery” because of the
likelihood that the agreement could be “reformed to contain reasonable
limitations”).
Of course, Calhoun does not accept this reasoning, as he is perfectly
happy to operate without the restrictions of an injunction. In addition to the
reason stated by the district court for declining to reform the agreement,
Calhoun adds two more arguments on appeal. First, Calhoun asserts that
reformation “is a remedy to be granted at a final hearing, whether on the
merits or by summary judgment, not as interim relief.” This argument runs
against the clear majority practice of Texas courts, which have on many
occasions reformed contracts for the purposes of granting interim relief. The
Texas case that has most thoroughly considered the question has rejected the
argument Calhoun makes here, finding that reformation “is not only a final
remedy” and may be made “as an incident to the granting of injunctive relief.”
Liss, 2014 WL 1257278, at *10 (quoting Weatherford Oil Tool Co. v. Campbell,
340 S.W.2d 950, 952–953 (Tex. 1960)). Second, Calhoun argues that reforming
the agreement into a narrower prohibition would require the court “to pen an
entirely new clause,” violating the Texas rule of contract law that “courts
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interpreting unambiguous contracts are confined to the four corners of the
document.” This argument is off point because we are concerned here with a
question of contract reformation, not contract interpretation. 2
In sum, we hold that the district court, in considering JDC’s motion for
a preliminary injunction, should have decided whether and what reformation
terms were most likely to make the agreement enforceable under Texas law. 3
IV.
Because the district court should have undertaken the reformation of the
agreement, we will remand to allow the district court to do so. On remand, the
district court should receive evidence and argument, in such manner as it sees
proper, but specifically addressing reformation that would “cause the
limitations contained in the covenant as to time, geographical area, and scope
of activity to be restrained to be reasonable and to impose a restraint that is
not greater than necessary to protect the goodwill or other business interest of
the promisee[.]” 4 Tex. Bus. & Com. Code § 15.51(c). And finally, with this
2 To be sure, this case is controlled, not by the common law of contracts, but instead
by statutory law, the Texas Covenants Not to Compete Act, which not only permits
reformation of covenants not to compete, but suggests that, in appropriate cases, it is indeed
required. See Tex. Bus. & Com. Code § 15.51(c). Applying that act, Texas courts have entirely
re-written the text of covenants when reforming them, such as when a Texas court of appeal
reformed a contract requiring a newspaper employee “not to engage in any facet of the
publishing business” into one only preventing the employee “from soliciting advertising to
those concerns which advertised” in newspapers he had worked for. Webb v. Hartman
Newspapers, Inc., 793 S.W.2d 302, 303–05 (Tex. App.—Houston [14th Dist.] 1990, no writ).
3 We stress, of course, that no decision at the preliminary injunction stage is final,
which of course means that both this opinion and any reformation at this stage of the
proceedings are tentative, awaiting final consideration when the court considers a permanent
injunction. See, e.g., Accruent, LLC v. Short, No. 1:17–CV–858–RP, 2018 WL 297614, at *7
(W.D. Tex. Jan. 4, 2018) (noting that a reformation at the preliminary injunction stage is
made only “[p]ending dispositive motions or a trial on the merits”); McKissock, LLC v. Martin,
267 F. Supp. 3d 841, 857–58 (W.D. Tex 2016) (same).
4 To guide this inquiry, we observe that the Texas Supreme Court has explained that
“[t]he fundamental legitimate business interest that may be protected by such covenants is
in preventing employees or departing partners from using the business contacts and rapport
established during the relationship of representing the [former] firm to take the firm’s
customers with him.” Peat Marwick Main & Co. v. Haass, 818 S.W.2d 381, 387 (Tex. 1991).
7
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evidence presented, the district court will find it necessary then to again
address the familiar four-part test for a preliminary injunction, this time using
the preliminarily reformed agreement as a factor for the analysis.
V.
In this opinion, we have held that the district court correctly found that
the non-compete agreement at issue is likely to be overbroad. We have further
held that the district court erred, however, in declining to preliminarily
consider the reformation of the agreement. Finally, we have held that the case
should be remanded so that the district court may adjudicate the reformation
of the agreement, and then re-evaluate the motion for a preliminary
injunction. 5 The judgment of the district court is therefore reversed and
vacated, and the case is remanded for further proceedings not inconsistent
with this opinion. 6
REVERSED, VACATED, and REMANDED.
5 We recognize that, if the parties have assembled all the evidence they think
necessary to their case during the pendency of this appeal, the district court may, in its
discretion, find that it is more efficient to pretermit addressing the preliminary injunction
and move directly to the permanent injunction, which of course would moot some of what we
have said.
6 Judge Graves concurs in the judgment only.
8 | 01-03-2023 | 08-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3408802/ | The appellant seeks review of a judgment of the district magistrate of Honolulu convicting him of violating Act 127 of Session Laws 137, as amended by Act 69 of Session Laws *Page 175
1939 (now R.L.H. 1945, § 7208). He relies upon eight specifications of error, the eighth being directed to the judgment of conviction and alleging that the evidence adduced was insufficient. No brief was filed by appellee. The case was submitted without argument upon appellant's brief at which time the public prosecutor on behalf of the appellee confessed error to the judgment below as alleged by the eighth specification and, in stating that he had made a careful study of the record and authorities, conceded that the evidence does not warrant conviction.
In thus expressly admitting cause for reversal consistently with the implication attendant upon his not contesting the appeal, the public prosecutor acted with undoubted propriety. It cannot reasonably be questioned that he has the inherent power of his office as well as the duty to confess error in any case in which he is satisfied that the interests of justice demand it. Indeed nothing less would serve those interests. But his confession, though entitled to great weight, is not binding upon the appellate court, nor may a conviction be reversed on the strength of his official action alone. Before a conviction is reversed on confessed error, the public interest requires and it is incumbent upon the appellate court to ascertain first that the confession of error is supported by the record and well-founded in law and to determine that such error is properly preserved and prejudicial.
This court, after scanning the record, finds as a matter of law that the confession is justified. It finds also that the confessed error is properly preserved and its commission prejudicial, the district magistrate's judgment of conviction being founded upon the evidence adduced which in the opinion of this court failed to prove any violation of the statute. Detailed recitation of that evidence is not necessary to point out its inadequacy. In substance it shows that a single sale was made of two gallons of gasoline *Page 176
for one-half cent less per gallon than the advertised price, the gasoline, its price and brand being duly displayed in accordance with statutory requirements. Such proof does not establish nor tend to establish the fraud or misrepresentation in the distribution and sale of any liquid represented as gasoline which the legislative intendment is designed to prevent, the statute clearly not being a price-fixing enactment. (See In re LaBelle, 37 Cal.App. [2d] 32, 98 P. [2d] 778.) For that reason the evidence is insufficient in law to vindicate conviction. Hence appellant's specification eight and appellee's confession are sustained.
The foregoing being determinative of the appeal, the remaining specifications need not be considered.
Judgment of conviction reversed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3867047/ | This is a petition for workmen's compensation, which is here on the petitioner's appeal from a decree of the superior court denying her petition.
Petitioner's husband, Louis T. Fossum, died, on June 19, 1941, at his place of employment at Quonset, Rhode Island. Petitioner alleged in her petition that on that date he received an injury arising out of and in the course of his employment in respondent's laboratory, during a morning of excessive heat and humidity, which caused or directly contributed to a heart attack, and that he died therefrom as a result of coronary thrombosis precipitated by his work in such excessive heat and humidity. Respondents denied these allegations and contended that Fossum had not received an injury by accident arising out of and in the course of his employment.
The superior court found that petitioner had not proved that her husband received such an injury or that the heat and humidity in his place of employment contributed to the attack of coronary thrombosis, or that the conditions of his employment, together with such heat and humidity, contributed to his heart attack, or that the doing of his work on the day he died required any unusual, extraordinary or abnormal exertion by him. These are findings of facts which are conclusive upon us by force of general laws 1938, chapter 300, art. III, § 6. But petitioner contends that they should not be conclusive in this case, because they are merely negative findings and the statute cannot be applied reasonably to such findings.
Petitioner argues, in support of her contention, that a finding merely that she has failed to sustain the burden of proof on some particular issue should not be upheld by this court until it has weighed all the evidence and until, after viewing the evidence as a whole, it has found that such evidence reasonably supports the finding. Predicated on the correctness of that contention, she urges that the evidence in this case, when viewed as a whole, did not justify the superior *Page 193
court's finding that she had failed to sustain her burden of proof.
We do not agree with petitioner's contention. The legislature has made no distinction between negative and positive findings of fact. Its language is clear and unambiguous and admits of no qualification by us. It provides that the decree of the superior court in workmen's compensation cases "shall contain findings of fact, which, in the absence of fraud, shall be conclusive." (§ 6) If the legislature deemed it necessary or desirable to exclude negative findings of fact from the effect of that provision, it could have readily done so. From the fact that it did not do so we are bound to conclude that it did not intend to make any distinction. So far as we are aware, it has always been the practice of this court to make no such distinction. See Marconi
v. Bartlett Scrap Iron Co., 66 R.I. 409; Rowe v. RiverSpinning Co., 144 A. 109 (R.I.).
Although the question has never heretofore been presented to us for consideration, we entertain no doubt that such practice is not only consistent with a reasonable construction of the statute but is also clearly required by its plain mandate. Whether a case might conceivably arise in which the evidence in support of the superior court's negative finding was so slight and inconsequential as, in justice, to require us to make an exception to the rule, we need not now inquire, as the instant case does not present such a situation.
The evidence in this case tending to connect the cause of Fossum's death with an injury received by accident arising out of and in the course of his employment is so meagre as to be almost nonexistent. An effort was made to connect the cause of his death by coronary thrombosis with the excessive heat and humidity prevailing generally on that day. This was done by medical testimony. Respondents countered with substantial testimony of a like character to the contrary. The superior court resolved this conflict of evidence against the petitioner. There was no evidence of any unusual or abnormal exertion by the workman at any time prior to *Page 194
his decease. His duties were of a clerical nature, and, so far as the record shows, required little physical exertion. Indeed, the evidence shows that the deceased was not actually applying himself to the duties of his employment at the time of his heart attack but, on the contrary, was relaxing, smoking a cigarette, away from his desk, at or near a door leading on to a porch adjoining the building in which he was employed. About an hour and a half prior to this time he had complained of a feeling of indigestion and had taken some baking soda. Several years before this time he had had an attack of coronary thrombosis, from which he had recovered. It was the opinion of respondents' medical witnesses that the deceased died solely from a heart attack and that he would have died therefrom at that time, regardless of what he was doing. In other words, it was their opinion that his time had come to die from coronary thrombosis and that death resulted naturally from that cause independently of any other cause.
Petitioner has sought with no little ingenuity to show that this case does not differ essentially on its facts from any one of the following cases cited below, wherein the workman's injury was found to be an accident, but we are satisfied that there is in each instance a marked difference. St. Goddard v. Potter Johnson Machine Co., 69 R.I. 90; Barker v. NarragansettRacing Assoc., 65 R.I. 489; Mederos v. McLeod, 65 R.I. 177;Chirico v. Kappler, 61 R.I. 128; Walsh v. River SpinningCo., 41 R.I. 490. In each of those cases there was evidence to the effect that the work which the workman was doing at the time when he received his injury either caused or contributed to the cause of the injury to such an extent as to constitute such injury an accident arising out of and in the course of his employment, within the meaning of the word "accident", under a liberal construction of the statute.
The instant case is clearly lacking in this respect. We are, therefore, of the opinion that there is no merit in the petitioner's final contention, that the superior court's "findings *Page 195
of fact were not justified when the evidence is viewed in the light of the applicable authorities in Rhode Island."
After a careful reading of the transcript, we are satisfied that there was competent evidence upon which to base the superior court's findings of fact and that it did not err in its application of the law to the facts as found.
Petitioner's appeal is therefore denied and dismissed; the decree appealed from is affirmed; and the cause is remanded to the superior court for further proceedings. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3998260/ | 1 Reported in 208 P.2d 906.
At all times herein mentioned, Sunset Oil Company, the plaintiff in this action, has been and is a corporation organized under the laws of the state of California, and authorized to do business in the state of Washington. Sunset Gas Oil Company is a Washington corporation and a distributor for Sunset Oil Company.
June 9, 1945, Sunset Gas Oil Company (herein referred to as Sunset Gas or seller) entered into a written "distributor's agreement" with Fred R. Vertner (the defendant herein) and Stanley A. Pemberton, copartners engaged in the business of selling petroleum products and other merchandise *Page 271
in the city of Yakima and vicinity, under the name of Marine Oil Company (referred to in the agreement as "distributor").
By the terms of this contract, the partnership agreed to purchase exclusively from Sunset Gas lubricating oils, gasoline, and other petroleum products for resale within a described area in Yakima county, during the period beginning June 9, 1945, and ending May 31, 1950.
In September, 1945, Mr. Pemberton sold his interest in the partnership to Mr. Vertner, and, in this opinion, we shall refer to Marine Oil Company as Vertner or distributor.
By the agreement above referred to, Vertner agreed to purchase each calendar month during the term of the agreement certain minimum quantities of petroleum products, namely, fifty thousand gallons of gasoline, one hundred gallons of lubricating oils, and fifty gallons of grease, the gasoline to be purchased at a price six and one-half cents per gallon less than the seller's posted retail price. The prices to Vertner of the other products were fixed by standards set forth in the agreement.
By paragraph No. 5 of the contract, in consideration of the seller's covenant to refrain from selling any of its branded products described in the agreement to third parties within the described territory, Vertner agreed not to "handle, directly or indirectly," any petroleum products for sale or distribution within this territory other than those secured from seller, pursuant to the contract.
By paragraph No. 7, Vertner agreed to pay cash for all purchases at the time of delivery, unless otherwise agreed in writing by seller's credit department.
Paragraph No. 8 of the agreement stated that Vertner understood that, pursuant to the provisions of the "Fair Trade Act," the seller had certain rights and privileges relating to resale prices, Vertner agreeing not to sell the products which he purchased from seller at less than the seller's posted service station tank wagon prices,
". . . unless said sales are made at retail, in which event Distributor agrees that he will not sell such products *Page 272
at less than the posted retail price established by Seller from time to time for the place of resale."
By paragraph No. 9, Vertner also agreed that he would not sell any products purchased from seller to any person, unless the purchaser first agreed not to resell the products at less than the seller's posted retail price at the place of resale.
The seller reserved the right to sell or assign its interest in the contract to a responsible oil company.
Paragraph No. 16 of the agreement reads as follows:
"No waiver by either party hereto of any nonperformance or breach of any covenant or provision of this agreement shall be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant or provision. All remedies, rights and options accorded herein, or otherwise available to the Seller shall be cumulative, and no one such remedy, right or option shall be exclusive of any other, and the pursuit of any such remedy, right or option shall not be deemed to waive any other or different remedy or relief to which the Seller might otherwise be entitled, either at law or in equity. Distributor waives any claim against Seller as to price, quantity or quality of any delivery of petroleum products hereunder, as well as any claim for damages resulting from any breach of contract on the part of Seller, unless such claim is made by Distributor to Seller in writing within ten (10) days after receipt of said delivery or breach of contract."
Purchases by Vertner were shipped from the seller's plant at Seattle to Yakima by common carrier until December, 1945, after which Vertner transported such purchases by his own truck.
August 22, 1946, Sunset Gas assigned its interest in the contract referred to above to Sunset Oil Company, plaintiff in this action.
By lease or pursuant to "products agreements," Vertner controlled or owned interests in the following gasoline stations: (1) Moxee station in Moxee, Yakima county; (2) a station in Ellensburg, Kittitas county; (3) Curtis Cabin Camp station; (4) Yakima Truck Service station, and (5) a gasoline station, the latter three in the city of Yakima. *Page 273
By its amended and supplemental complaint, upon which the action was tried, plaintiff pleaded six causes of action, alleging, in its first cause of action, the making of the contract above referred to, the assignment of the contract to plaintiff by Sunset Gas, and the performance thereof by plaintiff; that, during the month of October, 1946, defendant, orally and by a written notice, informed plaintiff of his intention to sell his business; that, at some date thereafter, defendant did sell his business to a person unknown to plaintiff; and that, October 16, 1946, defendant ceased to purchase gasoline and other petroleum products from plaintiff, as he was required to do pursuant to the contract, and thereafter purchased products from others, failing to purchase from plaintiff even the minimum quantity of gasoline he was obligated by the contract to purchase each month. Plaintiff then alleged the profits which it would have realized had defendant performed the contract, and demanded judgment for damages, on account of defendant's breach of the contract, in a sum exceeding sixty-eight thousand dollars.
In its second cause of action, plaintiff repeated certain allegations set forth in its first cause of action, and alleged that, during the month of September, 1945, defendant owned or controlled a service station at Moxee and requested plaintiff to paint that station; that plaintiff complied with the request, at a cost of $165.87, and that the parties hereto entered into a "service station advertising contract" for a term ending March 4, 1948. Plaintiff demanded judgment on its second cause of action for $165.87.
By its third, fourth, fifth, and sixth causes of action, plaintiff made similar claims on account of painting four other service stations owned or operated by defendant, demanding, by each cause of action respectively, judgment for sums ranging from $169.38 to $259.83.
To this complaint, defendant filed a second amended answer and supplemental cross-complaint, denying that he had breached the contract pleaded by plaintiff and denying *Page 274
that he was indebted to plaintiff upon any cause of action pleaded by plaintiff.
By way of a first affirmative defense, defendant alleged that plaintiff and its predecessor in interest had waived the provisions of the contract with regard to minimum monthly purchases thereunder by defendant, and alleged that, by its conduct, plaintiff was estopped from contending that defendant was required to purchase any minimum amount of products from the plaintiff.
By a second affirmative defense, defendant alleged that, by custom and practice, any liability from defendant to plaintiff on account of the five causes of action set forth in plaintiff's complaint, based upon painting service stations, and so forth, should be limited to the pro rata amount thereof for the remaining unexpired term of each of the agreements.
By his third affirmative defense, defendant alleged that, during the month of August, 1946, plaintiff, through its authorized officers, represented to defendant that plaintiff would not object to a sale of his business by defendant, provided that defendant gave plaintiff seasonable notice of such sale, and that defendant had given plaintiff such notice.
By a fourth affirmative defense, defendant alleged that plaintiff had materially and substantially breached the terms and conditions of the contract as alleged in detail by defendant, and had, without cause, repudiated the contract and refused to make further deliveries thereunder.
By way of a supplemental cross-complaint, defendant alleged that, by plaintiff's refusal to perform the contract, defendant had suffered damage, by reason of loss of profits which he would have made had the contract been performed by plaintiff, in an amount in excess of seventy-two thousand dollars, for which amount defendant demanded judgment against plaintiff.
Plaintiff replied to defendant's affirmative defenses and cross-complaint with denials and affirmative defenses.
The action was tried to the court, sitting with a jury, the jury having returned a verdict in favor of plaintiff in the sum of $669.45. *Page 275
Defendant moved for judgment in his favor notwithstanding the verdict, which motion was denied by the court, and, in the alternative, moved for a new trial, this latter motion having later been waived by the defendant, as stated in the judgment.
Plaintiff did not move for a new trial, but moved for judgment in its favor notwithstanding the verdict, and, after argument, the court granted this motion, awarding plaintiff judgment against defendant, upon plaintiff's first cause of action, for the sum of $6,845.78. The court also granted plaintiff's motion as to its second to sixth causes of action, both inclusive, awarding judgment for the amounts, respectively, for which plaintiff had demanded judgment.
The court then entered findings of fact and conclusions of law in accordance with its order, granting plaintiff judgment upon its several causes of action as above stated, together with plaintiff's costs as fixed by the court, followed by a judgment in favor of plaintiff and against defendant in the amounts above stated.
From this judgment, defendant has appealed, assigning error (1) upon the overruling of appellant's demurrer to the complaint; (2) upon the trial court's ruling sustaining respondent's demurrer to appellant's first affirmative defense contained in his amended answer; (3) upon the denial of appellant's motion for judgment of dismissal notwithstanding the verdict; (4) upon the trial court's ruling granting respondent's motion for judgment for increased recoveries notwithstanding the verdict; (5) upon the making of eight specified findings of fact by the trial court; (6) upon the making of four specified conclusions of law; (7) upon the entry of judgment in favor of respondent; (8) upon the admission in evidence of an exhibit offered by respondent; (9) upon the court's refusal to enter judgment dismissing the action; and (10) upon the court's refusal to enter judgment in favor of respondent in an amount not exceeding the verdict of the jury, namely, $669.45.
The questions presented upon this appeal are somewhat confused, and extremely complicated. *Page 276
At the outset, it may be noted that it is not disputed that appellant sold his business January 18, 1947.
We shall consider appellant's contentions in the order in which they are presented in his brief.
[1] Appellant first argues that the contract between the parties, referred to above, is void for want of mutuality. The contract was prepared by respondent's assignor and should therefore, generally speaking, be construed in appellant's favor.
We quote the second portion of paragraph No. 5 of the contract:
"In consideration of Seller's agreement not to sell any of the hereinafter described branded products in the above described territory, Distributor agrees to not handle, directly or indirectly, any petroleum products for sale or distribution in said territory other than those secured from Seller under and by the terms of this agreement. Seller, however, reserves the right at its option to solicit orders for the sale and delivery of any of the hereinafter described branded products in the territory of Distributor to any municipal, county, federal or other governmental or public body or agency, or to any common carrier or public utility within the territory afore-described."
Appellant argues that the contract is entirely unilateral, obligating appellant to sell no products other than those purchased from respondent, while respondent is free to sell its products in appellant's territory. Respondent, of course, is holder of the contract by assignment from Sunset Gas, the original seller named therein.
Appellant admits the assignment of the contract to respondent by the original seller, but argues that it nowhere appears that respondent assumed and agreed to perform the terms and conditions of the contract. Appellant contends that, as it does not appear that respondent agreed in writing to carry out the contract, and as the contract, by its terms, was not to be performed within one year, respondent was not obligated by the provisions of the contract, pursuant to Rem. Rev. Stat., § 5825 [P.P.C. § 577-3] (statute of frauds). *Page 277
[2] Assuming, for purposes of argument, that the situation falls within the statute referred to, respondent proceeded to perform the contract during the months of August and September, 1946, by making deliveries to appellant in accordance with the terms of the agreement, and the contract was partially performed by respondent by the sale to appellant of over one hundred sixteen thousand gallons of gasoline pursuant to the contract.Rowland v. Cook, 179 Wash. 624, 38 P.2d 224, 101 A.L.R. 180;Foelkner v. Perkins, 197 Wash. 462, 85 P.2d 1095.
[3] It may be noted that appellant did not plead the statute of frauds in bar; but, in any event, in view of the record before us, the contract was not void for want of mutuality. The parties confirmed the contract by acting thereunder, and the cases cited by appellant in this connection are not controlling.
Appellant next argues that the contract upon which respondent relies should be held illegal and void under § 1 of the Federal statute referred to as the Sherman Anti-trust Act, and § 3 of the Clayton Act (15 U.S.C.A., §§ 1, 14).
Respondent contends that, upon the record before us, appellant may not at this time present this question.
Appellant pleaded this question by an affirmative defense in his original answer and by way of an affirmative defense in his amended answer, to both of which defenses respondent's demurrers were sustained. Appellant then pleaded over, filing his second amended answer and supplemental cross-complaint.
[4] Respondent relies upon the well-known rule that the filing of an amended pleading, after a demurrer to the original pleading has been sustained, amounts to a waiver of any objection to the ruling of the trial court sustaining the demurrer. This is the general rule. However, the question now before us falls within the rule laid down in the case of Miller v. Sisters ofSt. Francis, 5 Wash. 2d 204, 105 P.2d 32, in which we said:
"There is an exception to that rule where a motion to strike has been granted and a demurrer sustained, if there *Page 278
remains a question of fact in the case, and the one to whom the ruling is adverse does not waive his right to have it reviewed on appeal by pleading over. [Citing cases.]"
In the recent case of Rathke v. Yakima Valley Grape GrowersAss'n, 30 Wash. 2d 486, 192 P.2d 349, this court held that a sales contract, void under a Federal statute, was unenforcible.
Upon the record in the case at bar, appellant may present the question of the illegality of the contract under the Federal statutes referred to above.
In connection with the question now under discussion, Rem. Rev. Stat. (Sup.), § 5854-12 [P.P.C. § 989-103] (a portion of the fair trade act), and United States statutes, including those above referred to, may be considered.
[5] It is not denied that all products purchased by appellant from respondent were branded or trademarked goods, sold under respondent's name or bearing its labels. In view of the applicable statutes, it appears that the provisions of the contract pursuant to which appellant was operating, which provisions fixed prices, were not void as in contravention of any state or Federal statute. We find in the record no evidence which would support a finding by the jury to the effect that there was, between the parties, any agreement which would be unlawful as involving illegal fixing of prices.
Appellant cites several Federal cases, including United Statesv. Socony-Vacuum Oil Co., 310 U.S. 150, 84 L. Ed. 1129,60 S. Ct. 811, and United States v. Frankfort Distilleries, Inc.,324 U.S. 293, 89 L. Ed. 951, 65 S. Ct. 661.
In view of the evidence in the record, the authorities cited by appellant do not support his contention that the contract was illegal for the reasons assigned.
[6] Appellant also contends that the contract violates the Federal anti-trust act, because appellant was required to handle only respondent's products.
In the case of Chicago Board of Trade v. United States,246 U.S. 231, 62 L. Ed. 683, 38 S. Ct. 242, Ann. Cas. 1918D, 1207, the supreme court considered many questions pertinent *Page 279
to this inquiry, and observed that each case must be decided upon the particular facts shown.
In 36 Am. Jur. 617, § 147, the rule is stated as follows:
"Thus, the issue as to legality or illegality of the disputed contract or combination is ordinarily to be determined in view of the facts of the case. [Citing authorities.]"
The cases cited by appellant in this connection also approve this principle.
Appellant relies upon the opinion of the United States district court in the case of United States v. Standard Oil Co. ofCalifornia, 78 F. Supp. 850, which concerned the validity of exclusive dealing contracts in the oil industry. In the course of the opinion, the court said:
"As I understand the pleadings, and the Government's position at the beginning of the trial, a judgment is sought decreeing that the clause in the contracts which, by its language and actual effect, as shown by the evidence, restricts the stations not employe-operated to the sale and use of petroleum products and accessories produced or supplied by Standard is illegal per se. We cannot agree. To the contrary, as we read the cases, exclusiveness of outlet is not, in itself, illegal. It becomes illegal only if it result in a substantial lessening of competition or the creation of monopoly in the line of commerce." (Italics ours.)
Again, the opinion refers to the "proved facts" of the case (p. 853).
The case cited was appealed to the supreme court of the United States, which affirmed the judgment of the district court.Standard Oil Co. of California v. United States, 337 U.S. 293,69 S. Ct. 1051, 93 L. Ed. 1371.
In the case at bar, no evidence was introduced as to any particular facts, save that appellant made purchases under the agreement. The contract between the parties is the only evidence before us which may be considered in connection with the question now under discussion.
We find in the record no basis for holding that the contract between the parties is illegal and void, under the Federal anti-trust acts. *Page 280
Appellant argues, as stated in his brief:
"It is undisputed that in the latter part of October, 1946, or at least at all times on and after November 1, 1946, on orders of its main office at Los Angeles, respondent completely repudiatedthe contract and failed and expressly refused to make any furthersales or deliveries to appellant thereunder."
The court instructed the jury (instruction No. 11) as follows:
"You are instructed that if one party to a contract commits a material breach of the contract, the other party may refuse to proceed further under the contract and may treat the contract as terminated.
"In this event, the injured party may bring immediate action for the damages he has sustained.
"A material breach of a contract is a breach of a substantial part of a contract, as distinguished from a part of the contract which is immaterial or inconsequential. A breach may be material, even though it does not render performance of the remainder of the contract impossible or impractical."
[7] No error is assigned upon this instruction, which is the law of the case, in so far as this appeal is concerned.
[8] In the case of Knight v. Pang, 32 Wash. 2d 217,201 P.2d 198, appears the following:
"It is a well-recognized principle of law that, when the sufficiency of the evidence to support a jury's verdict is questioned on appeal, the evidence will be interpreted in support of the verdict rendered."
[9] There was evidence before the jury to the effect that, prior to the assignment of the contract by Sunset Gas to respondent, appellant at times had found it difficult to meet the terms of the contract by making the required cash payments for products delivered to him. After the assignment of the contract to respondent, the latter fixed a credit limit, to which appellant objected, whereupon a plan was considered pursuant to which appellant's business would be increased. However, these negotiations had no tangible result.
During the month of August, 1946, appellant purchased from respondent and its predecessor in interest over fifty-four *Page 281
thousand gallons of gasoline and, in the following month, over sixty-two thousand gallons. During October, 1946, appellant purchased considerable quantities of gasoline and other products from a Yakima dealer, as appears from an exhibit in the case, and( apparently, made no further purchases from respondent. The summons and complaint in this action were served upon appellant during the month of October, 1946.
November 1, 1946, appellant's tank wagon called at respondent's base in Seattle, but respondent's agent refused to deliver gasoline, stating that future deliveries would be made only on a cash basis.
From the evidence, which was conflicting, the jury was warranted in finding that appellant committed the first breach of the contract.
The trial court did not err in denying appellant's motion for judgment in his favor as a matter of law.
After the jury had returned its verdict, each party moved for a judgment notwithstanding the verdict, appellant arguing that the verdict in respondent's favor was not supported by the evidence, and respondent moving for judgment in its favor for a much larger sum than that allowed by the jury, arguing that such judgment in its favor should be granted upon uncontradicted and undisputed evidence, in connection with which mathematical computations would clearly show that respondent was entitled to judgment for larger amounts.
The court denied appellant's motion and, as above stated, granted respondent's motion and entered findings of fact and conclusions of law in respondent's favor, pursuant to which the judgment appealed from was entered.
The trial court did not entirely disregard the jury's verdict, as, in finding of fact No. 6, appears the following:
"The finding of the jury in favor of the plaintiff establishes the foregoing finding of fact; namely, the defendant materially and substantially breached the contract on or about October 16, 1946." *Page 282
Both parties having moved for judgment notwithstanding the verdict of the jury, in response to a suggestion from this court the parties filed briefs discussing the question of whether, in view of the motions of the respective parties, the jury's verdict should be given any consideration by this court.
Rule of Practice 23, adopted July 1, 1942, 18 Wash. 2d 47-a, reads as follows:
"A motion for a directed verdict which is not granted is not a waiver of trial by jury, even though all parties to the action have moved for directed verdicts."
[10] The foregoing rule does not apply to motions for judgments notwithstanding the verdict of a jury; and, considering the motions made by the respective parties in the case at bar, we are of the opinion that, by their respective motions, the parties did not submit to the court the questions at issue between them for decision as matters of law. We, accordingly, hold that the verdict of the jury should be considered in determining the questions presented upon this appeal.
The verdict returned by the jury was a general verdict, in the sum of $669.45. The case was submitted to the jury March 24, 1948. It appears from the statement of facts that, after the jury had retired to deliberate upon its verdict, each party took exceptions to certain of the court's instructions, and that the court adjourned at 5:30 p.m., March 24, 1948.
The jury returned its verdict, which bears the clerk's stamp, "FILED FOR RECORD 3-24-48." The verdict is general, reading, after the title of the cause:
"We, the Jury in the above entitled cause, find for the Plaintiff and assess the amount of recovery in the sum of Six hundred sixty-nine and 45/100 Dollars ($669.45). [Signed] L.J. Farley, Foreman."
In their respective briefs, the parties refer to a handwritten memorandum, which, it is stated without dispute, by some undisclosed method, appeared with the jury's formal verdict. *Page 283
In a supplemental transcript, filed by respondent, appears the jury's general verdict and a typewritten document bearing the words "(Notation attached to Verdict)."
Pursuant to our directions, the original verdict has been forwarded to the clerk of this court and is before us. Attached to the general verdict by wire staples is a small piece of paper, containing handwritten letters and figures as follows:
"Cost Unexpired Time Unexpired Value
165 16/24 110.00
169 43/54 135.00
171 19/24 135.00
260 7/24 76.00
240 6/24 60.00
______
516.00
Atty fees 50.00
______
566.00
Gardner Gas to 10/24
10400 gal. gas at .0075 78.00
5800 stove oil at .00382 22.15
2000 Diesel .00165 3.30
______
669.45"
The paper contains no other words or figures than as above set forth, nor is it anywise referred to in the verdict of the jury. The statement of facts discloses nothing which indicates when the jury returned its verdict, nor does it contain any reference to the handwritten paper.
[11] Respondent contends that this paper writing should be considered in connection with the verdict. How the paper came into the possession of the court or the clerk of the court, we do not know. We have no information as to whether, when the verdict was returned by the jury and handed to the clerk of the court by its foreman, the paper was stapled to the verdict or whether it was so attached later. We do not know that the memorandum was seen or discussed by the jury, nor in what manner or for what purpose the jury used or considered the memorandum, if they did use or consider it. The memorandum itself bears no file mark whatever. The clerk's certificate with the supplemental *Page 284
transcript simply states that that transcript "is a true and correct transcript of such pleadings and files" in the case at bar as the clerk had been directed by respondent's attorneys to transmit to the supreme court. The certificate attached to the statement of facts, signed by the trial judge, contains no reference to the verdict.
Even assuming that the handwritten memorandum was delivered to the court by the foreman of the jury, it should, nevertheless, be disregarded as extraneous and superfluous. Martin v. Nichols,110 Wash. 451, 188 P. 519; Pearson v. Arlington Dock Co.,111 Wash. 14, 189 P. 559; Lindsey v. Elkins, 154 Wash. 588,283 P. 447; Rowe v. Safeway Stores, 14 Wash. 2d 363,128 P.2d 293.
It does not appear that the court instructed the jury to make any specific findings upon any particular questions of fact, or to return separate verdicts upon each of the six causes of action pleaded by respondent.
Respondent argues that the handwritten notation should be considered and that the verdict "was in effect a verdict on each cause of action." We do not agree with respondent's contentions upon this point. The verdict, as returned, is a general verdict.
[12] The trial court might have submitted the case to the jury for a separate verdict on each cause of action, but was not required to do so. Yamamoto v. Puget Sound Lbr. Co., 84 Wash. 411,146 P. 861; Olympia Water Works v. Mottman, 88 Wash. 694,153 P. 1074; 53 Am. Jur. 721, § 1043.
The record contains evidence which, if believed by the jury, was, in law, sufficient to support a verdict in respondent's favor for some amount, upon each of the six causes of action pleaded by respondent, provided that the jury was of the opinion that, in consideration of all the evidence before it, the preponderance thereof was in respondent's favor. However, if, in the opinion of the jury, respondent was entitled to recover upon any or all of these causes of action, the amount or amounts to which respondent was entitled remained for the jury to determine, upon consideration of all of the evidence introduced. *Page 285
As above stated, the trial court accepted the jury's finding that appellant was indebted to respondent, and denied appellant's motion for judgment in his favor notwithstanding the verdict. The question to be here determined is whether the trial court, having so far sustained the verdict of the jury, was authorized by the evidence to enter judgment in favor of respondent in an increased amount, notwithstanding the verdict rendered by the jury.
[13] A motion by a party to an action for judgment in his favor in a larger amount than that which a jury has fixed, is a motion for a judgment notwithstanding the verdict. 3 Bancroft's Code Pleading, Practice and Remedies (Ten-year Supp.) 2267, § 1772; De Boer v. Olmsted, 82 Colo. 369, 260 P. 108.
In the case of Fargo Loan Agency v. Larson, 53 N.D. 621,207 N.W. 1003, an action by the plaintiff for the conversion of wheat, the jury returned a verdict in favor of the plaintiff for $43.43, whereupon the plaintiff moved for judgment for a larger amount notwithstanding the jury's verdict. The trial court granted the motion and entered judgment in favor of plaintiff in the amount of $406.08, from which judgment the defendants appealed. In the course of the opinion, the court quoted from the opinion of the supreme court of North Dakota in the case ofSheffield v. Stone, Ordean, Wells Co., 49 N.D. 142,190 N.W. 315, the following:
"`Judgment notwithstanding the verdict may be ordered only in a case where it clearly appears from the whole record that the party who moves for such judgment is entitled to a judgment on the merits as a matter of law.'"
In the case cited, the court held that certain facts were "either admitted by the defendants or are not contradicted by substantial evidence in the case," and that the plaintiff, as matter of law, was entitled to judgment in a sum in excess of the amount in the verdict of the jury. The court continued:
"Nor can it be said from the record in the case that there is a reasonable probability that a different result would be reached should a new trial be granted." *Page 286
The court held that the judgment entered by the trial court was too large, and directed the entry of judgment in an amount less than that entered by the trial court, but somewhat in excess of the jury's verdict.
The supreme court of Colorado, in the case of De Boer v.Olmsted, 82 Colo. 369, 260 P. 108, held that the trial judge had erred in substituting "his own judgment for that of the jury," and in determining that plaintiff before the trial court was entitled to recover an increased amount. The court observed that the evidence was conflicting and directed that the judgment be reduced to the amount of the verdict returned by the jury.
In the case of Peterson v. Rawalt, 95 Colo. 368,36 P.2d 465, it appeared that, based upon conflicting testimony, the jury had entered a verdict for one hundred dollars in favor of the plaintiff, the amount of the verdict, apparently, not being based upon any evidence introduced by either party to the action. On plaintiff's motion, the trial court set the verdict aside and entered judgment for over six hundred dollars, the full amount claimed by the plaintiff. The judgment was reversed. In the course of the opinion, the court said:
"We come now to the second contention, namely, that the trial court could not enter an independent and radically different judgment of its own in lieu of the jury verdict it set aside. The power of a nisi prius court to enter a judgment non obstante veredicto does not include the virtual abolition, apparent in this case, of the right to a jury trial. The judge here substituted a sum more than six times the sum awarded by the jury. This would have been proper only if the judge could legally have directed the jury to render a verdict corresponding exactly to the judgment so entered; that is, only in a case where the supporting evidence both as to liability and as to the amount of damages is uncontradicted and unimpeached. Here the evidence was in sharp conflict. The incongruous verdict herein naturally induces the belief that, as to damages if not also to the preliminary and vital question whether there was any liability at all, the verdict was a sheer compromise, and utterly worthless as an index of the jurors' bona fide conclusions, if any they had. When a flagrant and unexplainable underestimate has been committed *Page 287
by a jury, the only fitting remedy is to have a new trial under normal conditions that will make similar confusion unlikely or impossible. So in the case at bar it was reversible error to enter judgment notwithstanding the verdict and then to refuse to grant a new trial."
Respondent relies upon the opinion of this court in the case ofRawleigh Co. v. Graham, 4 Wash. 2d 407, 103 P.2d 1076, 129 A.L.R. 596, in which this court, sitting En Banc, affirmed a judgment entered upon findings of fact entered by the trial court in favor of the plaintiff, notwithstanding a verdict rendered by the jury in favor of the defendant. After the rendition of the jury's verdict, the plaintiff moved for judgment in its favor notwithstanding the verdict or, in the alternative, for a new trial, which former motion was granted. The court then entered findings and conclusions in favor of the plaintiff, followed by the judgment from which the defendant appealed. A majority of this court found "no controversy in the evidence going to the merits of respondent's claim, upon which the jury was entitled to pass." In the course of the opinion, we said:
"It is, of course, the law that if in the opinion of the trial court there is no conflict in the evidence as to the issue of fact to be submitted to the jury, the court may grant a motion for a directed verdict, made at the close of the case, either simply in favor of the defendant, or for a particular amount, in favor of one party, if the undisputed evidence shows such sum to be due, or in favor of one party, the jury to fix the damages. It would seem that, if the supposed issue of fact has been submitted to the jury, the court, upon further consideration after the return of the verdict, and upon a motion for judgment in favor of the losing party notwithstanding the verdict, could not only grant the motion, if convinced that there was no disputed question of fact upon which the jury should pass, but could make findings in support of a money judgment, if, according to the undisputed evidence, the entry of such a judgment was proper. There would seem no good reason why the court may not do after the return of the verdict what it could unquestionably, in another way, do before."
If the court was of the opinion that there was no dispute whatever in the evidence, the question submitted for decision *Page 288
was one for the court to determine as matter of law.
In the case at bar, after the trial court had refused to submit certain questions for the jury's consideration, there remained several disputed questions of fact which the court properly submitted to the jury.
During the trial, appellant vigorously denied any liability whatever to the respondent and contended that, if he was liable in any amount, such liability was very much less than the amounts contended for by respondent.
It is clear that no motion by either party for a directed verdict would have been appropriate, and no such motion was presented.
[14] There having been several disputed questions of fact in the case, which were properly submitted to the jury, and in view of our holding in the case of Rawleigh Co. v. Graham, supra, to the effect that a motion for judgment notwithstanding the verdict of a jury is, in essence, the same as a motion for a directed verdict, the trial court would have been warranted in granting respondent's motion for judgment in its favor notwithstanding the verdict only if, assuming appellant's basic liability as found by the jury, the amount of damages to which respondent was entitled was then undisputed.
Evidently, the trial court was of the opinion that, based upon respondent's exhibit No. 18 (an exhaustive compilation prepared on behalf of respondent showing the damages which respondent claimed followed a breach of the contract by appellant, as alleged in respondent's first cause of action), the evidence as to loss of net profits by respondent, resulting from appellant's breach of the contract, was uncontradicted.
Upon the evidence, the question of the amount of damages to which respondent would be entitled was a matter to be submitted to the jury.
It would seem, from the evidence, that the jury might have found that, even though appellant had violated his contract by the purchases he made from other oil companies during the month of October, such acts on his part did not amount to a definite breach of the entire contract which *Page 289
would support a judgment in respondent's favor for recovery of damages as to the entire balance of the contract. 3 Williston on Sales (Rev. ed.) 251 et seq., §§ 585a, 585b; 17 C.J.S. 973, § 472 et seq.
The jury might have found that these breaches of the contract, while rendering appellant liable for damages concerning these particular purchases, did not afford a basis for respondent to treat the contract, considered in its entirety, as broken. 12 Am.Jur. 966, § 389.
Before this court, appellant assigns no error upon any instruction which the court gave to the jury. By its instructions, the trial court explained to the jury the difference between a material breach of the contract, namely, a breach of a substantial part thereof, as distinguished from an immaterial or inconsequential breach of the contract. The jury was not instructed to return separate verdicts as to each cause of action, but returned a general verdict in respondent's favor.
[15] In connection with its first cause of action, the burden rested upon respondent to prove definitely and within a reasonable degree of certainty, probability, and accuracy, the damages which it sought to recover. Quist v. Zerr, 12 Wash. 2d 21, 120 P.2d 539; Hole v. Unity Petroleum Corp., 15 Wash. 2d 416, 131 P.2d 150.
In the case of Pappas v. Zerwoodis, 21 Wash. 2d 725,153 P.2d 170, an action by a tenant against his landlord to recover loss of profits for breach of certain of the landlord's covenants, we said:
"In such case, however, the loss must be shown with a reasonable degree of certainty and accuracy, and the proof establishing the loss must be clear and convincing, free from speculation or conjecture."
The court instructed the jury as to the rights of the parties to this action in regard to their respective claims. Based upon evidence in the record, the jury, if it determined that respondent was entitled to recovery in the action, could have returned any verdict within the issues as defined by the court in its instructions. *Page 290
[16] Generally speaking, a motion for judgment notwithstanding the verdict is not the proper method by which an arbitrary or unreasonable verdict may be attacked. Such a situation should be met by a motion for new trial; but, in the case at bar, no such motion was made by respondent. The amount of the recovery in respondent's favor, as fixed by the jury, is within the issues presented by the pleadings and the court's instructions. Each party to the action claimed large damages against the other. As far as the record shows, the members of the jury all agreed with the verdict rendered.
[17] It is true, as argued by respondent, that, in case of a breach by the purchaser of a contract for the future sale of merchandise, damages may be recovered for loss of profits. Respondent also admits that "such profits must be shown with reasonable certainty but need not be computed with mathematical accuracy."
This court has upheld judgments for damages for loss of profits occasioned by a breach of contract, in cases in which the causes of action concerned different branches of the petroleum industry.
The question before us for decision is whether, upon the record, the trial judge was justified in setting aside the general verdict of the jury, and was authorized to enter judgment in respondent's favor, as matter of law, for a different and larger amount.
A somewhat similar question was considered by this court in the case of McClure v. Wilson, 109 Wash. 166, 186 P. 302, 18 A.L.R. 1421, a tort action, in which it was held that the trial court had erred in granting the defendants' (respondents here) motion for a judgment in their favor notwithstanding the jury's verdict in favor of the plaintiff.
The record in the case at bar is voluminous, the statement of facts comprising approximately six hundred pages of testimony, and about forty-five exhibits having been introduced in evidence.
[18] Examination of the extensive record convinces us that the questions presented were properly for the jury to *Page 291
determine, and that the trial court erred in granting respondent's motion for judgment in its favor notwithstanding the verdict.
The judgment appealed from is reversed, with instructions to enter judgment in respondent's favor for the amount which the jury, by its verdict, found that respondent was entitled to recover.
JEFFERS, C.J., STEINERT, MALLERY, and HILL, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3408851/ | The petitioners filed in this court their petition for writ of prohibition to prevent the respondents from proceeding further in, except to dismiss, a certain equity case pending below in the circuit court of the second judicial *Page 405
circuit of the Territory of Hawaii. The grounds of the petition are (1) that the case involves and grows out of a labor dispute within the meaning of the Norris-LaGuardia Act of Congress (Act of March 23, 1932, 47 Stat. 70, c. 90, §§ 1-15; U.S.C. [1940] Tit. 29, §§ 101-115), (2) that the second circuit court is a "court of the United States" as defined by and within the meaning of the Act and (3) that the respondent Wirtz as judge thereof issued at the instance of the other respondent a restraining order against the petitioners which, although admittedly in conformity with the laws of the Territory, was not in strict conformity with the provisions of the Act. A temporary writ of prohibition was duly issued. The respondents answered and admitted therein the first and third ground of the petition but denied the second, alleging that the Act of Congress does not apply to circuit courts of the Territory of Hawaii.
The pleadings present but one question of law. Is a circuit court of the Territory a "court of the United States" as defined by and within the meaning of the Norris-LaGuardia Act so as to render its provisions applicable? The answer depends upon the legislative intent of Congress. Preliminary to the determination of that intent, it is proper to ascertain whether the Act is an original enactment or merely an amendatory one.
Considering the Act including its caption as a whole, it is clearly and unmistakably not an original enactment but in the nature of an amendatory Act in the sense that it relates to the same subject matters dealt with by a prior and existing statute. This is forcibly brought out by the Supreme Court of the United States in United States v. Hutcheson, 312 U.S. 219, 236, 85 L.ed. 788. In that case the Court said: "The underlying aim of the Norris-LaGuardia Act was to restore the broad purpose which *Page 406
Congress thought it had formulated in the Clayton Act but which was frustrated, so Congress believed, by unduly restrictive judicial construction." (See Act of Oct. 15, 1914 [38 Stat. 730]. Also New Negro Alliance v. Sanitary Grocery Co.,303 U.S. 552, 562, 82 L.ed. 1012.) Consistent therewith, the Norris-LaGuardia Act by its caption "An Act to Amend the Judicial Code * * *" professes to be an emendation of that Code which significantly contains portions of the Clayton Act. At this juncture a brief history of the Judicial Code and its background would not be amiss.
The rudiment of the present federal judicial system of the United States originated in 1781 with the final adoption of the Articles of Confederation under which a congressional court was created, primarily for the purpose of settling boundary disputes between the then States of the Union. This court went out of existence upon the adoption of the Constitution in 1787, which vested "the judicial Power of the United States * * * in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish," the Supreme Court being granted therein appellate jurisdiction generally and original jurisdiction in certain cases. (Const. Art. III, §§ 1, 2.) The federal judicial system, thus installed as an engine in the tripartite machinery of the government of the United States by the terms of its enabling constitutional provision, consists of two classes of courts, — the Supreme Court, fixedly established as the great court of last resort, and that undefined class of inferior courts not even given a name by the Constitution, which courts may be established or abolished and whose jurisdiction may be conferred or defined or enlarged or limited by Congress at will in response to the changing needs of society. (Kline v.Burke Constr. Co., 260 U.S. 226, 234, *Page 407
67 L.ed. 226; Cinderella Theater Co. v. Sign Writers' LocalUnion, 6 F. Supp. 164, 168; United States v. Haynes, 29 Fed. 691, 696.) These courts are commonly referred to as federal courts to distinguish them from territorial and state courts. They uniformly have been designated by judicial definition to be "constitutional courts" in contradistinction to "legislative courts," the latter created by Congress under the power granted under Article IV of the Constitution to make "all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Within the designation of legislative courts are admittedly the circuit courts of the Territory created by the Hawaiian Organic Act of Congress, section 81. (See Mookini v. United States, 303 U.S. 201, 82 L.ed. 748; O'Donoghue v. United States, 289 U.S. 516, 77 L.ed. 1356; McAllister v. United States, 141 U.S. 174, 35 L.ed. 693.)
On March 3, 1911, Congress adopted the present Judicial Code, which as of December 7, 1925, is embodied in the "United States Code" where it occupies the first thirteen chapters of Title 28. (36 Stat. 1087 to 1169, inclusive.) It was the first successful attempt to place in codified form the numerous prior statutes of Congress affecting the federal judiciary. The Code deals primarily with the District Courts, Circuit Courts of Appeals, Court of Claims, Court of Customs and Patent Appeals and Supreme Court of the United States, devoting its first five chapters to the District Courts, its next four seriatim to the other courts, the next two to certain of them as courts of the United States and the remaining two of the thirteen chapters to general and repealing provisions affecting the Code. It deals incidentally with territorial and state courts, but only to the extent that the final decisions or judgments of their highest courts may come within the *Page 408
appellate jurisdiction of the Circuit Court of Appeals and Supreme Court, respectively. The District Courts, Circuit Court of Appeals and Supreme Court, referred to in the Code as "courts of the United States," are constitutional courts and form one federal judicial system. Suggestive of a substantial affinity in jurisdiction and authority, the phrase "any District Court of the United States" is twice mentioned in the alternative with that of "any court of the District of Columbia." (U.S.C. c. 10, §§ 386, 388.) The Court of Claims and Court of Customs and Patent Appeals, referred to in the Code by name only, are legislative courts and are not within the same federal judicial system as District Courts. Nor are their decisions or judgments reviewable in the Circuit Court of Appeals, but in the Supreme Court and no other. (U.S.C. c. 7, § 288, c. 8, § 308.)
The only radical change made by the Judicial Code was the abolition of the Circuit Courts of the United States and the transfer in toto of the original jurisdiction they exercised prior to January 1, 1912, to the District Courts of the United States (36 Stat. 1167) which thereby became and now are the only federal courts of first instance, both criminal and civil, at law and in equity. (See Wogan Bros. v. American Sugar RefiningCo., 215 Fed. 273.) Since its adoption other statutes and portions thereof from time to time have been added but they constitute mere continuations and where its parts relate to the same subject matter their interrelation requires that they all be considered as a whole whenever necessary to the proper interpretation of any of its parts.
The portions of the Clayton Act (Oct. 15, 1914, c. 323, §§ 17-19, 21-25, 38 Stat. 737-740), incorporated into the Judicial Code at the time the Norris-LaGuardia Act was enacted, all appear in chapter ten of the Judicial Code, *Page 409
constituting sections 381 to 383 and 386 to 390, inclusive, of the United States Code and all relate in subject matter to the Norris-LaGuardia Act. Some likewise relate to and immediately precede section 384 in which appears the phrase "any court of the United States." Such phrase as therein used was held by this court in Kainea v. Kreuger, 30 Haw. 860, not to apply to circuit courts of the Territory. Others appear under the same caption with section 378 which deals exclusively with the Supreme Court of the United States and the District Courts of the United States. Consonant thereto, section 371 of the United States Code, the first section of the chapter, vests in "the courts of the United States * * * exclusive of the courts of the several states" an eight-point jurisdiction which necessarily in the light of Article III of the Constitution applies exclusively to the Supreme Court and inferior Courts constitutionally ordained thereunder. It is apparent from such close interrelation in considering the chapter as a whole, that courts and any court of the United States are intended to be constitutional courts in the historical meaning thereof. Such historical meaning and that of legislative courts being mutually exclusive of each other, the use of the phrases "courts of the United States" and "any court of the United States" to mean constitutional courts necessarily excludes legislative courts such as circuit courts of the Territory which are not even remotely referred to in the entire Judicial Code.
In professing to amend the Judicial Code and in restoring the contemplated purpose of the Clayton Act, did Congress intend to go beyond the federal judicial system affected thereby and disturb the meaning, established therein, of the phrases "courts of the United States" and "any court of the United States" in so far as it is limited to constitutional courts under Article III? A bare reading *Page 410
of section 113 (d) of the Norris-LaGuardia Act as reported in Title 29 of the United States Code suffices to show that it did not. The section reads: "When used in sections 101-115 of this title, and for the purposes of such sections — * * * The term `court of the United States' means any court of the United States whose jurisdiction has been or may be conferred or defined or limited by Act of Congress, including the courts of the District of Columbia." In restricting the definitive phrase "any court of the United States" by the clause "whose jurisdiction has been or may be conferred or defined or limited by Act of Congress, including the courts of the District of Columbia," the section accomplishes two primary objectives. Both pertain to courts of the United States. One is to eliminate for the purposes of the Act the Supreme Court, whose appellate and original jurisdiction stems from the Constitution, from the Act's scope and the other to make certain that the courts of the District of Columbia, whose jurisdiction is controlled by Congress, come within it. However, there is no language contained in the section which can be reasonably interpreted or judicially construed as evincing an intention to read into the phrases "courts of the United States" and "any court of the United States" a status of court different from that dealt with by the related Judicial Code or destroy the identical meaning existing therein between courts of the United States and constitutional courts under Article III of the Constitution.
In our opinion, the nature of the spirit and reason which prompted Congress to bring by express provision the courts of the District of Columbia within the purview of "any court of the United States" essentially suggests a legislative attempt to rectify in effect an apparent error appearing in the latest decision of the Supreme Court of the United States on the status of such courts at the time *Page 411
the Norris-LaGuardia Act was enacted, and but for which error there would have been no necessity to define the term "court of the United States" nor greater need to expressly include the courts of the District of Columbia therein than to expressly exclude the Supreme Court of the United States therefrom, Congress by Act of March 3, 1901, 31 Stat. 1199 (D.C. Code [1940], Tit. 11, § 305) having deemed the court of first instance of the District of Columbia to be a "court of the United States." This error lay in the unmistakable language of the Court in ExParte Bakelite Corporation, 279 U.S. 438, 73 L.ed. 789, decided three years before the Norris-LaGuardia Act was passed, that the courts of the District of Columbia are legislative rather than constitutional courts. Indeed, a comparable spirit and reason motivated the passage of the Act itself in disapproval of DuplexCo. v. Deering, 254 U.S. 443, which as the Court indicated inUnited States v. Hutcheson, supra, emasculated the Clayton Act, so Congress believed, by unduly restrictive judicial construction. It was not until after the Norris-LaGuardia Act became law that the Court in O'Donoghue v. United States,289 U.S. 516, 77 L.ed. 1356, judicially corrected the error by designating the declaration in the Bakelite case to be sheerobiter dictum and holding that the courts of the District of Columbia are constitutional courts in the historic meaning under Article III of the Constitution, thereby in effect affirming the legislative correction made by Congress.
The purpose of section 10 of the Norris-LaGuardia Act (U.S.C. Tit. 29, § 110) in using the term "court of the United States" is to expedite appeals from such court to the Circuit Court of Appeals, excluding by implication any court, such as circuit courts of the Territory, where review does not lie in that appellate court. This section does not apply literally to the courts of the District of *Page 412
Columbia because review therefrom lies in the United States Court of Appeals for the District of Columbia rather than in the Circuit Court of Appeals. However, it does so substantially. This is evidenced by the effect of the holdings of the Supreme Court of the United States that the court of first instance in the District of Columbia (now named "The District Court of the United States for the District of Columbia" by Act of June 25, 1936, 49 Stat. 1921, c. 804) is in effect a District Court of the United States within the same federal judicial system and that its appellate court, although of different name, likewise is a Circuit Court of Appeals. (Federal Trade Comm. v. Klesner,274 U.S. 145, 71 L.ed. 972; Swift Co. v. United States,276 U.S. 311, 72 L.ed. 587; Claiborne-Annapolis Ferry v. UnitedStates, 285 U.S. 382, 76 L.ed. 808.) There is thus no difference in substance between the two parallel sets of courts. It is therefore reasonable to assume that Congress intended the identity as that recognized by existing judicial holdings and hence intended the section to apply to the District Court of the United States for the District of Columbia with the same force as it does to District Courts of the United States.
The meaning, then, of a "court of the United States," drawn from every part of the Norris-LaGuardia Act as well as from its caption "An Act * * * to define and limit the jurisdiction of courts sitting in equity * * *," is interpreted to be any court of the United States whose jurisdiction has been or may be conferred or defined or limited by Act of Congress under Article III of the Constitution and which court is one of first instance, sitting in an equity case involving or growing out of a labor dispute, with authority therein to issue restraining orders and injunctions reviewable in either the Circuit Court of Appeals or the United States Court of Appeals for the District of Columbia. *Page 413
This interpretation is reasonable and synchronizes each portion of the Act with the others so as to give effect to every sentence, clause, phrase and word thereof. At the same time it is in harmony with the Judicial Code and portions of the Clayton Act incorporated in it, to which the Norris-LaGuardia Act relates and professes to amend. This, therefore must be taken as the legislative intent of Congress, nothing inconsistent thereto appearing in the Act. Such intent is not obscure but manifest by the language employed. Hence there is no need to seek corroborative aid from the reports of the Senate and House Committees on the Judiciary in charge of the preparation of the then proposed Norris-LaGuardia Act even though they may authoritatively supply such aid.
The position of the petitioners is briefly that Congress, having the power to define and limit the jurisdiction and authority not only of inferior constitutional courts under Article III of the Constitution but also of inferior legislative courts under Article IV, intended to exercise that power to the fullest extent by passing the Norris-LaGuardia Act and consequently included within its scope the circuit courts of the Territory. The difficulty, however, is that Congress neither expressed nor implied such an intent. In the absence thereof it cannot be presumed that Congress in cases involving labor disputes intended to supersede the local law respecting the exercise by a territorial circuit court of its full equity jurisdiction and the taking of appeals from its orders and decrees to the supreme court of the Territory. (See Inter-IslandSteam Nav. Co. v. Hawaii, 305 U.S. 306, 82 L.ed. 189.)
In support of their position, the petitioners place great reliance upon the broadness of the public policy declared by Congress in section 2 of the Act (U.S.C. Tit. 29, § 102) and the literal application to territorial circuit courts of *Page 414
the clause in section 13 (d) (U.S.C. Tit. 29, § 113 [d]), i.e.,
"whose jurisdiction has been or may be conferred or defined or limited by Act of Congress." But the declaration of such policy by its language, though broadly expressive of rights of labor under the Act, does not purport to extend beyond the jurisdiction and authority of "courts of the United States," as defined and limited by the Act itself, nor does the clause modify anything but the comparable and definitive phrase "any court of the United States." It is reasonable to assume that Congress used the two phrases, "courts of the United States" and "any court of the United States" coextensively with the scope of the Act with respect to the courts affected thereby and advisedly in the historical meaning of constitutional courts, contradistinguished from legislative courts, which those phrases have concededly acquired by legislative use and judicial interpretation. (SeeMcAllister v. United States, 141 U.S. 174, 35 L.ed. 693;O'Donoghue v. United States, 289 U.S. 516, 77 L.ed. 1356;Mookini v. United States, 303 U.S. 201, 82 L.ed. 748.) Further, Congress is presumed to have been aware of and have intended to adopt such meaning, especially when it employs in the existing and related Judicial Code the same phrases of identical import to denote courts vested with the judicial Power of the United States by Article III of the Constitution. Thus the parts relied upon by the petitioner, consonant with the Act as a whole, conclusively in themselves and in relation to the other parts reflect the intent of Congress to affect only that great class of inferior courts established by Congress under Article III of the Constitution. For the Supreme Court of Hawaii to construe the Act otherwise so as to make it affect any court not belonging to that class would be judicial legislation.
The Norris-LaGuardia Act having no application to *Page 415
the second circuit court of the Territory and that court not being a "court of the United States" as defined by and within the meaning thereof, the petition for writ of prohibition is dismissed and the temporary writ dissolved. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3408875/ | The petition for rehearing upon the opinion reported in38 Haw. 616 asserts four grounds.
Ground one asserts that this court disregarded two findings of fact by the trial court, first: that the seller agreed to sell and the respondents and petitioner agreed to purchase the business; second: that all parties to the proceeding agreedinter se that petitioner's contributive share of the purchase price was to be $3,000, the balance to be contributed by the respondents. These findings were adopted and considered, as evidenced by their recitation in the opinion, they being expressly enumerated therein.
The petitioner-appellant urges that as a result of the conclusion of this court in disregard of the foregoing he, jointly and severally with the respondents, would have incurred a potential liability for the entire purchase price of $35,000, and the vendor could therefore have sought and obtained judgment against him in that amount in the event the purchase was not consummated; or, in the alternative, the respondents could have proceeded likewise to enforce payment of the petitioner's contributive share of $3,000; and that resultingly, all of the joint purchasers, including the petitioner-appellant, acquired a right to enforce the purchase agreement against the vendor by specific performance by and through their equitable title; and the petitioner, not having released the vendor from his agreement to sell to him, the respondents thereby did in fact *Page 21
acquire the business as trustees for themselves and the petitioner.
Assuming, without deciding, that the principles of law urged are applicable to those factual situations had they been before the court for determination, nevertheless neither the theory nor the principles urged were presented, for the reason that the petitioner admittedly defaulted in his failure to contribute his agreed share of the purchase price. The authorities cited are readily distinguishable from the facts presented. They involve suits for specific performance of contracts to enforce the conveyance of property, equity jurisdiction being premised upon the inability of a court of law to accord the aggrieved parties in those circumstances a full, adequate and complete remedy — as between vendor and vendee. The instant litigation is between joint vendees alone. The cases also present factual situations where, as between vendors and vendees, either partial or complete performance by either or both of the parties exists, with the resulting acquisition and assertion of an equitable right of specific performance predicated thereon. The factual situations and the principles urged are inapplicable to the instant appeal.
The second ground urges error in the failure of this court to conclude that a joint adventure existed between the parties to the proceeding. Reiterating the conclusion heretofore announced that a finding of whether the purchase agreement between the parties constituted them copartners or joint adventurers, binding them with the legal incidents flowing therefrom, was not necessary to the disposition of the issues presented, this ground is without merit.
Ground three is premised upon the assumption of a finding that a joint adventure did in fact exist between the parties. For the reasons stated, supra, this ground is rejected. *Page 22
Ground four urges the adoption by this court of the trial judge's oral findings rendered prior to the entry of the written decision and decree. The written decision is at variance with the oral findings.
The authorities cited in support of the petitioner's contention is that findings of fact made by a trial court in the course of a trial are regarded on appeal in much the same manner as findings of fact upon which the final judgment is rendered. This is a broad statement of the rule applicable in the absence of a governing statute. The contention is urged, however, without consideration of the controlling statutes of this jurisdiction. This is an appeal from a decree of a circuit judge, at chambers, in equity. (R.L.H. 1945, § 9604 as am.) The jurisdiction of this court to hear and determine the cause is premised upon that section.
"Appeals shall be allowed from all decisions, judgments, orders or decrees of circuit judges in chambers, to the supreme court * * *." R.L.H. 1945, § 9503 as am.
"It has been repeatedly held by this court that appeals under this statute must be taken from the decree and not from the decision. Barthrop v. Kona Coffee Co., 10 Haw. 398, 402;Kahai v. Kuhia, 11 Haw. 3, 5; Makainai v. Lalakea,24 Haw. 518, 521; Un Wo Sang v. Alo, 7 Haw. 673, 674, 675."Ogata v. Ogata, 30 Haw. 620, 621, 622.
The present appeal is from the decree entered on September 2, 1948, dismissing the bill. This decree, being as it is final in form, and determinative of the rights of the parties to the controversy, was the final and appealable decree upon which the appeal was allowed and the jurisdiction of this court invoked. Ground four is without merit.
Chief Justice Samuel B. Kemp and Circuit Judge John A. Matthewman, who concurred in the opinion, are disqualified from participation in the instant petition for rehearing by virtue of their retirement. *Page 23 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1715186/ | 518 S.W.2d 367 (1975)
Rex Ed ELAM, Appellant,
v.
The STATE of Texas, Appellee.
No. 49117.
Court of Criminal Appeals of Texas.
February 5, 1975.
*368 John T. Montford, Court Appointed, Lubbock, for appellant.
Alton R. Griffin, Dist. Atty. and Richard Palmer, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
ROBERTS, Judge.
The appellant was convicted by a jury of the offense of sale of cocaine. Punishment was assessed by the court at twelve years' imprisonment.
Fourteen grounds of error are raised in this appeal. The first urges that the State was allowed to bolster the credibility of its witness Ronald Ray Tucker.
Tucker, an undercover agent for the Department of Public Safety, had purchased six "papers" of cocaine from the appellant on March 3, 1973. The appellant, raising the defense of entrapment, urged that Tucker was the motivating force behind the sale.
*369 At trial, Tucker was called as the State's first witness. After establishing that Tucker was a narcotics agent assigned to undercover work and stationed in Waco, the prosecuting attorney then asked the witness a number of questions to which appellant vigorously objected on the grounds of relevancy and bolstering. The witness was asked where he was born; where he was raised; if he had completed high school; whether he had served in the armed forces; where he had served; whether he was decorated (objection was sustained); the date he was employed by D. P.S. and his length of service; what his first duties were; the nature and length of training he had undergone; whether he had training in addition to his regular training; and the cities and counties to which he had been assigned.
The State contends, without citation of authority, that the questioning was proper. Appellant relies on two cases for the proposition that the questioning was an improper attempt to bolster the witness' credibility. Dodson v. State, 149 Tex. Crim. 184, 192 S.W.2d 451 (1946) and Tweedle v. State, 153 Tex. Crim. 200, 218 S.W.2d 846 (1949).
In Dodson v. State, supra, the accused called a witness to establish his good reputation. He sought to have her testify that she was related to several prominent people well-known in the county, in order to "give weight to her testimony." On the State's objection, the evidence was excluded. This Court held that the exclusion of the evidence was proper, and indeed it was, since by the accused's admission its purpose was to "give weight" to the witness' testimonyhence to bolster.
Tweedle v. State, supra, is more in point. In that case, the State's witness was allowed to testify on direct examination that he had served in the Army for twenty-nine months; that he spent twenty-nine months overseas; that he had lived in the Waco area for twenty years, and that he had never been charged with any offense. The Court held that the testimony was not relevant to any issue and served only to bolster the witness, and reversed the case.
As we view the instant case, the questions asked of the witness were a proper inquiry into his background. This information places the witness in the context of his background and is a proper matter for preliminary inquiry. See Hickey v. State, 51 Tex. Crim. 230, 102 S.W. 417 (1907); Hasley v. State, 87 Tex. Crim. 444, 222 S.W. 579 (1920); Jordan v. State, 96 Tex. Cr.R. 70, 255 S.W. 735 (1923); and Myers v. State, 149 Tex. Crim. 301, 194 S.W.2d 91 (1946). It enables both the defendant and the jury to assess the weight to be given to a witness' testimony and to evaluate his credibility. See Winkle v. State, 488 S.W.2d 798 (Tex.Cr.App.1972) and Watson v. State, 488 S.W.2d 816 (Tex.Cr.App. 1972). It will be seen from the questions themselves that the inquiry was directed to the background of the witness, and did not seek to bring out matters relating to his good character and veracity. There was no error. To the extent that Tweedle v. State, supra, is inconsistent with the position announced today, it should not be considered authoritative.[1]
Appellant's second and third contentions urge the evidence of an extraneous offense (burglary) was improperly admitted. The record reflects that all discussions regarding the burglary charge took place outside the presence of the jury. When the jury returned, the court sustained appellant's objection to a question relating to the charge and instructed the jury to disregard the question. The question itself made no reference to the burglary, but only referred to the fact that appellant had been released from jail on bond *370 and that the bond was revoked. We perceive no error.
Appellant also complains that the State was allowed to prove that appellant made another sale to Tucker subsequent to the date of the sale for which appellant was on trial. As previously noted, appellant raised the defence of entrapment. When the defense of entrapment is raised, evidence of extraneous offenses becomes admissible on the issue of intent. See Prudhomme v. State, 495 S.W.2d 941 (Tex. Cr.App.1973) and cases there cited.
In his fifth contention appellant complains of the court's charge limiting the jury's consideration of the evidence of extraneous offenses. It appears to be his contention that the extraneous offense could have no bearing on his intent at the time of the offense on trial because the extraneous offense occurred subsequent to the offense in the instant case. Appellant's contention is without merit. In Prudhomme v. State, supra, the extraneous offense occurred after the offense on trial.
Appellant's sixth ground of error complains that in questioning the appellant the prosecutor injected an extraneous offense. It appears that appellant stated that he purchased the cocaine he sold to Tucker from a person named Arlo. On cross-examination, he was asked the following:
"Are you a pretty good customer of Arlo's?" Appellant responded that he was not, but testified without objection that he had made two previous purchases from Arlo. In view of the fact that appellant stated he was not a "good customer" and admitted two prior purchases from Arlo, the error was harmless.
Appellant's next five contentions (grounds of error seven through eleven) complain of allegedly improper jury argument by the State. Although complaint is made regarding five separate instances of argument, we are directed to a specific portion of the record only once. The complaints of instances of argument not located with specificity in the record preserve nothing for review. See McElroy v. State, 455 S.W.2d 223 (Tex.Cr.App.1970); Smith v. State, 473 S.W.2d 216 (Tex.Cr.App. 1971) and Collins v. State, 502 S.W.2d 743 (Tex.Cr.App.1973).
With regard to the contention which is preserved for review, it appears that during argument the prosecutor stated to the jury that the appellant had made a profit of $150.00 on the sale. Appellant objected that the argument was outside the record. The objection was sustained and the court, on its own motion, instructed the jury to disregard the statement. Appellant's motion for mistrial was overruled. The prejudicial effect, if any, of his statement was adequately removed from the jurors' minds by the instruction to disregard. See Smith v. State, 513 S.W.2d 823 (Tex. Cr.App.1974).
Appellant's grounds of error thirteen and fourteen contend that he was improperly sentenced.[2] It is appellant's position that he was improperly sentenced under Section 4.01(b)(1) of the Controlled Substances Act (Acts 1973, 63rd Leg., Ch. 429), Vernon's Ann.Civ.St. and that he should have been sentenced under either Sections 4.01(b)(2) or 4.01(b)(3) of the Act.[3]
Appellant bases the contention that he should not have been sentenced as a first *371 degree felon on the argument that Section 4.02(d) of the Act, which lists coca leaves and derivatives thereof in penalty group one, does not expressly include the term "cocaine." He points to the wording of the former statute, Art. 725b, Sec. 1(11), Vernon's Ann.P.C.1925, which provided:
"Coca Leaves' includes cocaine and any compound, manufacture, salt, derivative, mixture or preparation of coca leaves..." (Emphasis added)
Appellant argues that since cocaine was expressly listed in the former act and is not expressly listed in the present act, the Legislature may have intended the omission and, if so, we should conclude that cocaine was intended to fall into one of the other penalty groups.
An examination of the other penalty groups reveals no mention of cocaine, nor any mention of coca leaves or their derivatives. On the other hand, Section 4.02(b) of the Act states:
"Coca leaves and any salt, compound, derivative or preparation of coca leaves and any salt, compound, derivative or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions which do not contain cocaine or ecgonine."
The plain language of this section leaves no doubt but that it was the legislative intent that any derivative of coca leaves, including cocaine, be included in penalty group one.
Appellant's last ground of error urges that the charges against him should be dismissed because the failure to include cocaine in the penalty groups under the new act renders the sale or possession of that drug no longer an offense. In view of what we have said regarding appellant's immediately preceding contentions, this contention is without merit.
The judgment is affirmed.
NOTES
[1] The testimony in Tweedle v. State, supra, regarding the fact that the witness had never been charged with an offense was properly excluded. The testimony regarding his military service and residence was background material which should have been admitted.
[2] Appellant elected to be sentenced under the provisions of the new Texas Controlled Substances Act.
[3] Section 4.01(b)(1) of the Act creates a category of felonies of the first degree with a punishment of imprisonment for life, or for a term of not less than 5 nor more than 99 years. Section 4.01(b)(2) relates to second degree felonies and provides punishment of 2-20 years' imprisonment and a possible fine not to exceed $10,000. Section 4.01(b)(3) relates to felonies of the third degree and provides punishment of imprisonment for 2-10 years and a possible fine not to exceed $5,000. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3867396/ | On the 5th day of February, 1914, the court of probate of the town of Cumberland entered a decree modifying another decree entered by it on the 2nd day of May, 1912, on an application for the allowance of the first and final account of Samuel J. Howes, as administrator de bonis non with will annexed of the estate of Amos Sherman, late of said Cumberland, deceased. From said first mentioned decree Hulda Sherman, as administratrix of the estate of Emma F. Sherman, widow of said Amos Sherman, deceased, claimed an appeal to the Superior Court. The case was heard by the Superior Court on the sole question of whether said court of probate "had authority and jurisdiction to revoke and modify a decree allowing the first and final account" of said administrator entered May 2, 1912, when said revocation was asked for more than forty days after said May 2nd. The decision was that the court of probate was without jurisdiction to enter the decree appealed from. The administrator excepted to said decision and brought the case to this court which sustained his exception and remitted *Page 178
the case to the Superior Court to hear the appeal on its merits. See Sherman v. Howes, 37 R.I. 260. The appeal was heard by the Superior Court on its merits on the 13th day of January, 1915, and thereafter the court rendered a decision sustaining the appeal of said administratrix. To that decision the administrator excepted and the case is before this court on his bill of exceptions.
It appears from the testimony that on March 29th, 1911, the New York Life Insurance Company paid to Samuel J. Howes, as such administrator, the sum of $3,070.12, being the balance then due of the proceeds with accumulated interest of a policy numbered 316,183, issued May 2, 1889, on the life of said Amos Sherman. The administrator had charged himself with this sum in the account allowed May 2, 1912. By the decree of the court of probate entered February 5, 1914, the administrator was permitted to charge out this sum with interest as not being a part of the assets of the estate of Amos Sherman. The question now before the court is therefore, whether the said sum thus paid over to the administrator of the New York Life Insurance Company, with its accumulations, is a portion of the assets of the estate of Amos Sherman. The appellant claims that it is part of such estate and the appellee that it is not.
To understand how this question arises a brief statement of the facts as disclosed by the evidence is necessary. In response to an application therefor by Amos Sherman, under date of April 19, 1889, the New York Life Insurance Company issued policy numbered 316,183 for $2,000, insuring his life for the term of fifteen years, commencing on the 2nd day of May, 1889, and becoming payable upon proof of the death of said insured during said fifteen years, share and share alike, to Emma F. Sherman, his wife, and Roger W. Sherman, his son, or their executors, administrators or assigns; or, if the insured should survive said term of fifteen years then an amount equal to four-tenths of said sum of $2,000 was to be paid to the insured or his assigns; thereafter under date of the 6th of January, 1898, Emma F. Sherman and Roger *Page 179
W. Sherman assigned and transferred to Amos Sherman aforesaid said policy "and all dividend, benefit and advantage to be had or derived therefrom." On February 10, 1898, a trust agreement was entered into by and between the insured and said company by which in case of his death during the lifetime of either Emma F. Sherman, his wife, or Roger W. Sherman, his son, the proceeds of said policy were to be paid to said company as trustee to be held by it as part of its general funds for the benefit of said Emma F. and Roger W. and the survivor of them; the proceeds were to be paid to said wife and son, share and share alike by the trustee in annual installments of $250 each, the first installment to be payable on proof of the death of the insured; the balance was to carry annual interest at not less than 3%; in case of the death of either beneficiary before or after the death of the insured, from the proceeds or the remainder thereof held by the trustee, like annual installments were to be paid to the survivor; if any balance remained in the possession of the trustee after the death of both said beneficiaries the same was "to be paid in one sum to the executors, administrators or assigns of the insured;" and in case of the death of both the beneficiaries before the policy became a claim, or in case the insured revoked his appointment of trustee by a written notice to the company, said appointment of trustee became void and the proceeds of the policy were to be "paid in one sum to the executors, administrators or assigns of said insured."
Under date of January 11, 1898, Mr. Sherman signed a supplementary memorandum (A) in substance embodying the terms of said trust agreement and providing that this last memorandum should be taken as part of two applications for insurance (one of which was dated April 19, 1889), and subject to the agreements and warranties therein contained, and be considered as part of the basis of the contracts for insurance. This memorandum provides for the payment of the proceeds of the insurance under the two applications to his wife and son "in ten equal annual installments of five *Page 180
hundred dollars each with a final installment equal to the remainder of the proceeds." While it is not entirely clear from the evidence, apparently the annual payment of $500 was to be made from the insurance resulting from both applications. The number and the amount of the annual payments mentioned in memorandum A are of no importance in considering the question before us, as Amos Sherman died September 7, 1902, before the expiration of the term of fifteen years without having revoked said appointment of trustee. Thereupon said company took and held the proceeds of said policy, amounting to $4,133.60, under the terms of the trust agreement and under date of October 2, 1902, issued a certificate of trust declaring that it held the last mentioned sum in trust for the purposes set forth in the trust agreement as they existed upon the death of the insured, with the provision that "if any balance of said proceeds remain in the possession of said company after the deaths of both of said beneficiaries the same is upon satisfactory evidence of such deaths to be paid in one sum to the executors, administrators or assigns of said Amos Sherman, deceased."
Emma F. Sherman died January 17, 1905, and Roger W. Sherman, January 5, 1911. Before the last mentioned date said company, as trustee, had made nine annual payments of $250 each in accordance with the provisions of said trust agreement. After the death of said Roger W. Sherman, Samuel J. Howes, a brother of Emma F. Sherman, was appointed administrator de bonis non with will annexed on the estate of Amos Sherman, and on March 29, 1911, said company, as trustee, as already stated, paid to said administrator $3,070.12 as the balance of the proceeds of said policy.
Amos Sherman in his application for insurance under said policy described himself as an "insurance agent and adjuster for Sun Fire office" and said that he had been thus employed for eight years; that at that time he held three policies in the New York Life Insurance Company, and that he held other life insurance amounting to $20,000 in other companies. *Page 181
Under date of August 22, 1899, he made his last will, which was after his death duly probated, in which he made his wife, Emma F. Sherman, residuary legatee and devisee of his estate. While the will refers to two other life insurance policies it contains no allusion to the one now considered. At his death besides his wife and son he left surviving him a brother, a sister and descendants of a dead sister.
The facts last referred to are not of special importance in the present case as the only question now before the court is whether the balance of the proceeds of the policy paid by the company to appellee is assets of the estate of Amos Sherman, while the further question, if it is assets, of who is entitled to them, is not under consideration. If this money is assets of the estate, then the Superior Court was right in holding that the court of probate was in error in permitting it to be charged out of the estate. The question is a narrow one. Neither party claims that the insurance company as trustee erred in paying the money to Mr. Howes as administrator. There is, of course, no suggestion that it was intended for the administrator personally. The real controversy is as to whether he received it to be administered upon as part of the estate of Amos Sherman or, although receiving it by virtue of his being administrator, he in fact holds it not as belonging to said estate, but in trust for certain persons ascertained or ascertainable.
The determination of this question depends upon the intention of Amos Sherman. There is nothing in evidence to show that intention except the trust agreement of February 10, 1898, and memorandum A. He was, in 1898, the sole owner of the policy. In entering into the trust agreement and in signing memorandum A, he did not deprive himself of its control or of his interest therein. The appointment of a trustee was to become void at any time at his option. If his wife and son both died before him, whether the appointment of trustees had been revoked or not, the proceeds of the policy were to be paid upon his death to "his executors, administrators or assigns." If he *Page 182
died before his wife and son, the appointment not having been revoked in the meantime, provision for an annual payment to them and the survivor of them was made; and if they both died, while a portion of such proceeds remained in the hands of the trustee, then the balance thereof was to be paid to "his executors, administrators or assigns." There seems to be no ground to argue that, when he directed, in the event of the death of both his wife and son before him, the proceeds of the policy upon his death were to be paid to his executors, administrators or assigns, he did not intend them to be assets of his estate for every legal purpose. He was providing for a contingency where, upon his own death, the members of his own family had predeceased him. If he desired in these circumstances to make provision in the trust agreement for other relatives out of the proceeds of this policy he could easily have done so. And when in the event that after his own death both wife and son should die without exhausting the proceeds of the policy he then directed the balance thereof to be paid to his executors, administrators or assigns, it is fairly to be inferred that it was to be treated as assets in the same manner as in the other case. The resulting situation would be the same. In both cases the three members of the insured's family would all be dead. In each instance the designated payees are the same and the conditions at the time of payment are not shown to be sufficiently different to enable the inference to be drawn that the purpose of the payment differed in the one case from the other. While Mr. Sherman's experience as a fire insurance agent and adjuster would not of necessity inform him as to some features of life insurance contracts, yet as it appears that he had before making the trust agreement taken out quite a number of life insurance policies, it may fairly be presumed that he had a good business understanding of such contracts and comprehended the significance of the words which are the subject of comment and intended to use them with their ordinary meaning. In making in effect these proceeds payable to his personal representatives or his assigns it is *Page 183
to be borne in mind that Mr. Sherman was reserving to himself the right to dispose of the same by will, subject to the possibility of their being needed to pay his debts.
The words "executors, administrators or assigns" used as designating the payees in insurance policies, unless qualified by other provisions or conditions, have usually been interpreted as meaning that they take the proceeds as assets of the insured's estate. In Phoenix Mutual Life Ins. Co. v. Opper, 75 Conn. 295, a life insurance policy on the life of one Koch was payable "to his executors, administrators or assigns." Three parties claimed the fund: his widow who had held a valid assignment of the policy, but had released her interest therein to permit her husband to obtain a loan on it from the company, and claimed under an alleged promise by him to reassign the policy to her; Opper, the administrator on his estate, and the receiver of his estate, although after the appointment of the receiver Koch had received his discharge in bankruptcy. It was held that the proceeds of the policy belonged to the estate.
In Rawson v. Jones, Adm'r, 52 Ga. 458, the insurance by the policy was payable to "his heirs, executors, administrators or assigns." The deceased was a young unmarried man and his heirs at law were a brother and three sisters, all older than himself, who had raised and educated him. The heirs at law claimed the fund. The insurance company paid the money, $5,000, to the administrator and took his receipt and refused a receipt from the heirs at law. A creditor sued the administrator. He pleaded no assets and plene administravit proeter. If the proceeds of the policy were assets then the defendant had assets to pay the creditor's claim. A section of the code provided that "The assured may direct the money to be paid to his personal representatives, or to his widow, or to his children, or to his assignee; and upon such direction, given and assented to by the insurer no other person can defeat the same." The court said: "The introduction of the word `heirs' does not affect the construction. Without it there could scarcely *Page 184
be the possibility of a doubt that the personal representative, his administrator, would take the money as administrator. The terms `heirs, executors and administrators' are not words that are used where those who are next of kin are intended to have a right given them directly by the instrument for instance, as purchasers; but are the terms usually employed to signify that if they take at all it is not directly, but through an administration. . . . The terms used in the policy by the direction of the assured, the provision in the section of the code referred to, giving him power to order to whom it should be payable, and he having used the very words which, in all other cases, disposing of property, would vest it in the administrator, as assets, and nothing to the contrary appearing in the policy, we cannot avoid the judgment we render. It is our opinion the money in the hands of the administrator is assets of the estate of the assured, to be disposed of as any other assets would be."
In Jack v. Mutual Reserve Fund Life Ass'n, 113 Fed. 49, the policy was made payable to the executors or administrators of the insured. The widow was a claimant, and one Jack also claimed as assignee. On page 59 the court says: "If the assignment is to be regarded, Jack alone, as assignee, holds the policy. If the assignment be ignored, the policy being payable to the executors or administrators of the insured, they alone could sue on it."
In Leonard v. Harney, 173 N.Y. 352, the policy issued to the deceased was payable to the insured "or to the legal representatives or assigns of said beneficiary." In his application for the insurance, to the question asking the name of the beneficiary, he wrote "to whom I may direct in my will." The insured subsequently assigned the policy as collateral security for payment of a debt. By his will he bequeathed the balance of the surplus due on the policy after satisfaction of said debt to his wife and appointed her executrix of his will. On the insured's death his widow demanded the surplus in her personal right, and a creditor notified the company not to so pay it to her. The insurance *Page 185
company filed an action of interpleader. The court held that the surplus vested in her as executrix and not as beneficiary. It said: "The ordinary meaning of the term `personal representatives' is executors or administrators and there is nothing even in the application of the insured for the policy to give that term a different construction. He asked that a policy be issued payable to the person he may nominate in his will. It might be a sufficient answer to say that such is not the policy the insurance company elected to issue to him. But, aside from that consideration, a policy which was at all times to be assignable by the deceased, and the beneficiary of which was to be designated only by will, an ambulatory instrument, susceptible of revocation or change, taking effect only on his death, would necessarily be the property of the deceased and part of his estate." . . . "The plaintiff's title was therefore only that of legatee, but as a specific legatee she was entitled to the fund except as against creditors of the estate of the deceased."
In People v. Phelps, Administrator, 78 Ill. 147, the policy was payable to the "legal representatives" of the insured. The court says, "The words `legal representatives' in the commonly accepted sense mean administrators or executors. . . . It was competent, under our law, for the intestate to have made the policy payable to his widow or to his heirs, to the exclusion of his creditors; but this he did not do. He chose to make it payable to his `legal representatives' and in this instance the legal representatives of the estate is his administratrix. . . . The term employed `legal representatives' must be understood in its ordinary meaning, which is administrators or executors and cannot by construction in this case be held to include the widow and heirs to the exclusion of the administratrix. The proceeds of the policy must, therefore, be regarded as other assets coming to the hands of the administratrix and to be administered accordingly." *Page 186
In Quick v. Quick, 147 N.Y.Sup. 149 (1914), it is held that legal representatives in the policy meant insured's executor or administrator and not his next of kin. In the application for insurance he had designated the recipient of the insurance by the word "estate." See, also, Burt v. Burt, 218 Pa. St. 198;Nolan v. Prudential Ins. Co., 139 App. Div. 166; Farretti
v. Prudential Ins. Co., 49 Misc. N.Y. 489; Harding v.Littlehale, 150 Mass. 100.
It is true that courts have sometimes given a wider meaning to the words "representatives" or "legal representatives." InLoos v. John Hancock Mutual Life Ins. Co., 41 Mo. 538, the policy was payable to the "representatives" of the insured. It was held that a child, the sole heir of the deceased, was entitled to the money instead of the administrator. The court said, "Policies for a term of life insurance of this description are of frequent occurrence, and where it is meant that the money resulting from the policy shall descend and be used as common assets the invariable language is, `to pay to the said assured, his executors, administrators or assigns.'"
In Griswold v. Sawyer, 125 N.Y. 411, it is held that while the words "legal representatives" must have their technical meaning of administrators or executors, in the absence of anything showing a different intent, in any case to ascertain the sense in which they are used the subject-matter and the surrounding circumstances as well as language used may be considered. After stating that these words are sometimes used in statutes and decisions in a different sense, citing among other cases the last mentioned one, the court found in the surrounding circumstances evidence of the insured's intention that the insurance money in that case was not to go to his administrator, and by a divided court held that it belonged to the widow and children of the insured. In reaching its decision the court, as is pointed out in Leonard v. Harney, supra, attached importance to the fact that by the omission of the word "assigns" the policy was not assignable without the consent of the beneficiaries. *Page 187
Both of these cases imply, however, that by the use of the words, "said assured, his executors, administrators or assigns," the proceeds of the policy would be common assets of the estate of the deceased.
Contra, in Wason v. Colburn, 99 Mass. 342 (1868), the policy issued by the John Hancock Life Insurance Co. was payable to the "assured, or, in case of prior decease, to his heirs or representatives." The deceased's sole heir was a minor son and his representative sued the administrator of the insured for the proceeds of the policy. The court said: "The policy is not expressed to be for the benefit of any third person within the meaning of Gen. St. c. 58, § 62," and decided that the administrator was entitled "to collect the amount due, and hold it as part of the estate of the intestate." After referring to and commenting on Loos v. John Hancock Mut. Life Ins. Co.,supra, the court further said: "In the present case the language habitually used by the company is not stated; nor would evidence be admissible of the intent with which they used the language of the policy. The term `representatives' legally indicates administrators, and we cannot construe it as excluding them."
Undoubtedly by specification in the policy the executor or administrator may take in trust for beneficiaries, and the proceeds under such provisions are not subject to the payment of debts. 25 Cyc. 887. Thus in Golder v. Chandler, 87 Me. 63, where a policy was payable to testator's "legal representatives for his heirs and assigns," it was held that it was intended that the personal representatives were to take the proceeds in trust for other parties and not as part of his estate. See, also, Inre Wendell, 3 How. Pr. Rep. N.S. 68.
In Heydenfeldt v. Jacobs, 107 Cal. 373, the executors of the estate of a decedent had collected the proceeds of a policy payable to his widow and children. Held, that said proceeds were no part of the estate of the deceased.
In Mullins v. Thompson, 51 Texas 7[51 Tex. 7], where the policy was payable to the "heirs or assigns" of the assured and the policy had not been assigned, it was held that the father of the *Page 188
assured, who was his heir and was also the administrator on his son's estate, was not compelled to inventory the proceeds of the policy as assets of the estate.
In Mitchell v. Allis, 157 Ala. 304, the policy was payable to the executors, administrators or assigns of the insured: Held, that the fund was payable to them, but that inasmuch as the statute provided that it "shall be exempt from all creditors," it was exempt from their claims. And it is generally held that, as the object of beneficial associations is not to benefit the estates of members, but to provide funds for the benefit of their families or dependents, the proceeds of certificates of such associations are not assets in the hands of the personal representatives of the deceased.
Assuming that we may look into the subject-matter and the surrounding circumstances as well as the language used in the contract to learn the intention of the insured we find none of the conditions referred in the cases cited to exist in the present case as making it necessary or proper to deprive the words "executors, administrators or assigns" from having their ordinary technical significance. As was said by the presiding justice of the court below, these words "are the apt and proper technical words to designate the estate of the insured." . . . "It would require strong evidence of a contrary intention on the part of the assured to warrant us in giving them a different meaning." We find nothing to satisfactorily indicate the existence of such an intention.
The appellee put in evidence at the trial Chapter 347 of the Laws of New York, passed in 1879; but as the act simply relates to the surrender value of policies it is of no assistance in deciding the question now before us.
The appellee's exception is accordingly overruled and the case is remitted to the Superior Court for further proceedings. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/884687/ | 961 P.2d 1251 (1998)
1998 MT 139
STATE of Montana, Plaintiff and Respondent,
v.
Marcus ANGELINE, Defendant and Appellant.
No. 97-523.
Supreme Court of Montana.
Submitted on Briefs May 14, 1998.
Decided June 9, 1998.
*1252 Carrie Garber, Deputy Public Defender; Billings, for Appellant.
Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General; Helena, Dennis Paxinos, Yellowstone County Attorney; Shawn Cosgrove, Deputy County Attorney; Billings, for Respondent.
REGNIER, Justice.
¶ 1 Marcus Angeline appeals from the decision of the Thirteenth Judicial District Court, Yellowstone County, denying his motion to suppress evidence obtained as a result of an investigatory stop of his vehicle. We reverse and remand.
¶ 2 The sole issue on appeal is whether the District Court erred in denying Angeline's motion to suppress evidence, in which Angeline argued that Officer Edgell did not have a particularized suspicion to justify an investigatory stop of Angeline's vehicle.
FACTUAL AND PROCEDURAL BACKGROUND
¶ 3 On August 31, 1996, Marcus Angeline was driving a 1981 Subaru northbound on U.S. Highway 87 outside of Billings, Montana. As he descended a long hill, he passed two vehicles. He completed the pass before the highway began to curve to the west.
¶ 4 As Angeline was traveling north on Highway 87, Montana Highway Patrol Officer Keith Edgell was heading southbound in the opposite lane toward him. Officer Edgell initiated a traffic stop and informed Angeline that he was stopped for suspicion of violating Montana's basic rule, § 61-8-303, MCA. The traffic stop resulted in Angeline's arrest for driving while under the influence of alcohol and two other offenses.
¶ 5 Later that day, Angeline was charged by complaint with violations of: (1) § 61-8-401, MCA, driving while under the influence of alcohol, a misdemeanor; (2) § 61-5-212, MCA, driving while license suspended or revoked, a misdemeanor; and (3) § 61-6-301, MCA, failure to have liability protection in effect, a misdemeanor. On September 3, 1996, Angeline appeared in Yellowstone County Justice Court and entered pleas of not guilty to all charged offenses. Angeline was found guilty following a bench trial conducted in Justice Court. On March 20, 1997, Angeline appealed the Justice Court decision to the Thirteenth Judicial District Court, Yellowstone County.
¶ 6 On April 21, 1997, prior to trial in the District Court, Angeline filed a motion to suppress any evidence obtained as a result of the investigatory stop on August 31, 1996, on the grounds that Officer Edgell did not have a particularized suspicion to initiate the stop. The State replied with a brief in opposition to Angeline's motion on May 2, 1997. The District *1253 Court held a hearing on the motion on June 24, 1997. On July 9, 1997, the District Court filed its findings of fact, conclusions of law, and an order denying Angeline's motion to suppress.
¶ 7 On July 22, 1997, the parties filed a plea agreement. Angeline entered a plea of guilty pursuant to § 46-12-204(3), MCA, reserving his right to appeal the District Court's adverse determination of his motion to suppress. The court accepted the State's sentencing recommendation and sentenced Angeline to concurrent terms of sixty days for driving while under the influence of alcohol, six months for driving with a suspended or revoked license, and ten days for driving without insurance. Under the sentence, all time was suspended except for two days to be served under house arrest. The court stayed imposition of the sentence pending Angeline's appeal.
¶ 8 On August 5, 1997, the District Court entered its written judgment. Also on that day, Angeline filed his notice of appeal, appealing from the judgment of the District Court.
DISCUSSION
¶ 9 Did the District Court err in denying Angeline's motion to suppress evidence, in which Angeline argued that Officer Edgell did not have a particularized suspicion to justify an investigatory stop of Angeline's vehicle?
¶ 10 The standard of review for a district court's denial of a motion to suppress is whether the court's findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Pratt (1997), 286 Mont. 156, 951 P.2d 37 (citing State v. Flack (1993), 260 Mont. 181, 185-88, 860 P.2d 89, 92-94.)
¶ 11 Angeline argues that the District Court erred by denying his motion to suppress. Angeline contends that the court's findings and conclusions are clearly erroneous because the prosecution failed to present any evidence at the suppression hearing on June 24, 1997, regarding the investigatory stop of Angeline's vehicle on August 31, 1996. Thus, without testimony from the officer who initiated the traffic stop, Angeline argues the court's conclusion that a legitimate investigatory stop of Angeline's vehicle occurred is unsupported by any evidence.
¶ 12 In response, the State argues the arresting officer's testimony is not necessary to support the court's finding of a particularized suspicion sufficient to justify the investigatory stop of Angeline's vehicle. Rather, the State contends that its burden is met by merely presenting objective data supporting an inference of wrongdoing and asserts that evidence may come from any witness, not just the arresting officer. Thus, the State argues the officer's testimony was not necessary in this case to support the court's finding that the officer had a particularized suspicion to justify the stop.
¶ 13 At the beginning of the suppression hearing held on June 24, 1997, the prosecution informed the court that Officer Edgell had not yet arrived. The prosecutor assured the court that he had spoken to Edgell about the hearing and that the officer appeared to be running late. Based on the prosecution's belief that Edgell would appear, Angeline's counsel volunteered to proceed first. Defense counsel called Angeline, who testified and was cross-examined about the events leading up to the investigatory stop of his vehicle on August 31, 1996. After the defense presented its argument, Edgell still had not appeared. The prosecution called no witnesses to testify and presented no evidence, including the officer's report, at the hearing.
¶ 14 Therefore, Angeline's testimony and a videotape that was made of the stretch of road Angeline was driving on before he was stopped were the only evidence before the District Court. At the hearing, Angeline testified that on the day he was pulled over, conditions were bright and clear. He stated, and the videotape showed, that he was driving on a brand new freshly paved dry road with wide shoulders on both sides. He stated that his car was in proper working condition with new brakes and could not go over eighty-five miles per hour. Before passing, he stated he had a three-mile open view of the road and that there was no oncoming *1254 traffic for miles. He fully explained his actions before, during, and after passing both vehicles on Highway 87 before being pulled over by Officer Edgell.
¶ 15 At the end of the hearing, the court made its initial ruling, denying the motion to suppress. The court stated:
The issue is whether there is a particularized suspicion such that the officer could pull you over, and I think under the facts of the case there was. I think 80 to 82, even on good roads, on a secondary road making a pass by a couple of cars before a corner, I will take your word you got in before the corner, is enough for an officer to say "I should pull over this person and talk to him and check out the car," and I think that he had the right to pull you over under the circumstances and under your testimony. I understand why you think you were driving safe. I don't think there was any chance of an accident, but I think there was particularized suspicion to at least pull you over and investigate further.
¶ 16 Angeline objected to this court's ruling, arguing that because there was no direct testimony from the arresting officer, the State had not met its burden of showing that the officer had a particularized suspicion to make the investigatory stop of Angeline's vehicle. The court then backpedaled from its initial ruling, stating, "I will take the matter under advisement, and state what I just stated as an inclination rather than a ruling." The court ordered both parties to submit proposed findings of fact and conclusions of law. Also, the court allowed Angeline to present case law on whether the State has an obligation to present evidence in order to meet its burden.
¶ 17 The District Court adopted the State's proposed findings of fact and conclusions of law on July 9, 1997, denying Angeline's motion to suppress. We note the following conclusions of law made by the District Court:
13. The critical inquiry is not whether the court believes that a violation of Section 61-8-303, MCA, occurred beyond a reasonable doubt. Rather, the critical inquiry is whether the objective facts as presented by defendant himself give rise to a particularized suspicion that a violation of Section 61-8-303, MCA, occurred. The court believes that driving a sixteen year old vehicle, down a long hill, upon a two-way secondary highway, while passing multiple vehicles at or over 80 MPH, and doing so just before negotiating a corner, are objective facts to support a reasonable belief in an observing law enforcement officer that defendant's driving was neither careful nor prudent.
14. Regarding question (2), whether the State must come forward at hearing with a witness and provide contrary evidence, Section 46-13-302(2), MCA, is helpful. The operative language is: "If the (defendant's) motion states facts that, if true, would show that the evidence should be suppressed, the court shall hear the merits ...". Obviously, based upon the plain language of the statute, if the motion did not state facts that, if true, showed the evidence should be suppressed, the matter would not even be set for hearing. Clearly, because there would not be a hearing, the State would not be required to present witnesses. Because of defendant's failure to meet the initial burden, the issue would simply not be entertained by the court. In addition, Gopher states the initial inquiry is whether objective data is present upon which an experienced officer can make inferences. The objective data can come from any witness testimony, including the defendant.
15. By analogizing to Section 46-13-302, MCA, and viewing all the evidence presented by defendant at hearing as true, because such facts still do not show that the evidence should be suppressed, the evidence should not be suppressed.
16. Furthermore, through direct and cross-examination of defendant, sufficient facts were introduced into evidence to satisfy the State's Gopher burdens, First, through the defendant, the State demonstrated the existence of objective facts to give rise to a particularized suspicion of wrongdoing, i.e. violation of the Basic Rule. Secondly, through the testimony of defendant, it was made clear that the officer that stopped him had observed these "objective *1255 facts" and specifically informed defendant that he was being stopped due to suspicion of a Basic rule violation. Consequently, defendant's motion should be denied.
¶ 18 We disagree with these conclusions of law made by the District Court. First, under § 46-13-302, MCA, if a defendant's motion to suppress "states facts that, if true would show that the evidence should be suppressed, the court shall hear the merits of the motion." Thus, the defendant must meet this initial burden in order for a court to hold a hearing and decide the motion on its merits. In his motion to suppress filed on April 21, 1997, Angeline met this burden by alleging facts that, if true, might have led to the suppression of the evidence at issue. The facts recited in Angeline's motion were essentially identical to his testimony at the hearing. Angeline represented in his motion that he was going approximately eighty miles per hour before being pulled over for the traffic stop. By deciding to hold a hearing on Angeline's motion to suppress, the District Court agreed that Angeline's motion set forth facts that, if true, would result in the suppression of any evidence obtained as a result of the traffic stop.
¶ 19 In his motion to suppress, Angeline moved the District Court "to suppress any evidence obtained as a result of the traffic stop in this matter on the grounds ... that the officer did not have a particularized suspicion to initiate the traffic stop under § 46-5-401, MCA." In Montana, the requirement of particularized suspicion was adopted in State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293, and is codified at § 46-5-401, MCA, which provides:
Investigative stop. In order to obtain or verify an account of the person's presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.
¶ 20 In Gopher, this Court adopted the two-part test enunciated by the United States Supreme Court in United States v. Cortez (1981), 449 U.S. 411, 101 S. Ct. 690, 66 L. Ed. 2d 621, to evaluate whether the police have sufficient cause or a "particularized suspicion" to stop a person. In asserting that a police officer had the particularized suspicion to make an investigatory stop, the State has the burden to show: "(1) objective data from which an experienced officer can make certain inferences; and (2) a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing or was a witness to criminal activity." Gopher, 193 Mont. at 194, 631 P.2d at 296.
¶ 21 Whether a particularized suspicion exists is a question of fact which depends on the totality of circumstances. State v. Reynolds (1995), 272 Mont. 46, 899 P.2d 540. In evaluating the totality of the circumstances, a court should consider the quantity, or content, and quality, or degree of reliability, of the information available to the officer. Alabama v. White (1990), 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309.
¶ 22 Therefore, when a defendant has alleged in a motion to suppress that an officer did not have a particularized suspicion to initiate a traffic stop and a district court believes that a hearing should be held on the merits of the motion, the burden shifts to the State. Then, the State must prove that the police officer did have a particularized suspicion to make an investigatory stop, as set forth in the manner proscribed in Gopher and its progeny.
¶ 23 Although this Court has not specifically stated that the testimony of the arresting officer is required in proving particularized suspicion justifying an investigatory stop, we fail to see how the State can meet its burden of proving its existence without the testimony of the arresting officer. Since Gopher, this Court has had occasion to review the testimony of the arresting officer in order to evaluate whether the State has met its burden of proof regarding the existence of particularized suspicion. See, e.g., State v. Lee (1997), 282 Mont. 391, 938 P.2d 637; Seyferth v. State, Department of Justice, Motor Vehicle Division (1996), 277 Mont. 377, 922 P.2d 494; Reynolds, 272 Mont. at 51, 899 P.2d at 543. It is only from the testimony of *1256 the arresting officer that one can learn what objective data was before the officer that led him to make certain inferences, resulting in a "suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing." Gopher, 193 Mont. at 194, 631 P.2d at 296. Nothing in Gopher or its progeny suggests that a district court should speculate on its own, based on the evidence presented from both parties, as to what an arresting officer may have believed, inferred, or suspected before initiating an investigatory stop. A district court's role is to consider the totality of the circumstances in order to determine whether the State has met its burden in proving a particularized suspicion.
¶ 24 In this case, the State presented no evidence about what objective data led Officer Edgell to infer or suspect that Angeline had been engaged in wrongdoing. Without the testimony of Edgell, the parties and the District Court could only speculate as to the objective data the officer observed before stopping Angeline. Without Edgell's testimony, the court was left to engage in speculation in its findings and conclusions about what inferences Edgell may have made based on what he may have observed before the investigatory stop and the resulting suspicions that he may have had regarding whether Angeline was engaged in criminal activity. Furthermore, there was no evidence presented regarding Officer Edgell's experience and training that would allow one to evaluate his observations, inferences, and resulting suspicions before initiating the stop of Angeline's vehicle if he had, in fact, testified.
¶ 25 After a review of the transcript of the suppression hearing, we conclude that the District Court's findings of fact and conclusions of law that Edgell had a particularized suspicion for an investigatory stop of Angeline's vehicle are not supported by any credible evidence. The only evidence presented at hearing was the testimony of Angeline and the videotape of the section of Highway 87 where he made the pass. Angeline's testimony alone, although perhaps self-serving, does not lead one to conclude that Officer Edgell had a particularized suspicion to initiate a stop of his vehicle.
¶ 26 Because the evidence presented at the hearing did not support the District Court's findings of facts and conclusions of law that Officer Edgell had a particularized suspicion that Angeline had committed, was committing, or was about to commit an offense, we therefore hold that the investigatory stop of Angeline's vehicle was not justified. We reverse and remand with instructions to enter an order of dismissal consistent with this opinion.
TURNAGE, C.J., and GRAY, NELSON and TRIEWEILER, JJ., concur. | 01-03-2023 | 06-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/153118/ | 78 F.3d 597
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Richard NAGOL, Plaintiff-Appellant,v.LUNA COUNTY; Scott Vinson, County Manager; Burt Irwin,County Commissioner; Tom Lindsay, County Commissioner;Fred Herrera, County Commissioner; Honorable Fred Gifford,County Magistrate; Honorable Manual D.V. Saucedo, DistrictCourt Judge, Defendants-Appellees.
No. 95-2109.
United States Court of Appeals, Tenth Circuit.
March 12, 1996.
Before ANDERSON, BARRETT, and LOGAN, Circuit Judges.
ORDER AND JUDGMENT*
ANDERSON, Circuit Judge.
1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. This cause is therefore ordered submitted without oral argument.
2
Richard Nagol brought this in forma pauperis pro se action alleging various constitutional and pendent state law claims against the County of Luna, its manager and commissioners, the county magistrate, and a state court judge. The district court dismissed the complaint sua sponte, for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). Nagol appeals the dismissal, contending that the district court erred on the facts and the law. We affirm.
3
The relevant facts are fully set forth in the district court's Memorandum Opinion and Order, R. Vol. I, Tab 4. Briefly, Nagol's action arises from incidents at two public meetings. At the first, he criticized certain ordinances which the commission proposed, called Commissioner Vinson stupid, and shook his finger at him, and he claims that Vinson responded by approaching him in a threatening manner. He alleges that subsequently, as part of a conspiracy to cover up alleged crimes, the commissioners and county manager improperly refused his demand to be placed on the agenda for a second meeting. In so doing, he argues that they denied his First Amendment rights of free speech and association, and violated the Fourth Amendment by forcibly removing and falsely arresting him when he attempted to speak at that second meeting. He also alleges that the magistrate judge and state district court judge denied him due process and equal protection by placing unconstitutional restrictions on his access to state courts. In addition to his constitutional claims, his action includes pendent state claims for assault, defamation, and malfeasance in office. In his brief to us, Nagol cites no authority, but generally refers to his U.S. Constitutional rights.
4
We review the district court's dismissal of a complaint under Fed.R.Civ.P. 12(b)(6) de novo. Although we liberally construe a pro se plaintiff's pleadings, Haines v. Kerner, 404 U.S. 519, 520 (1972), we will not supply additional facts, nor will we construct a legal theory. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991); Dunn v. White, 880 F.2d 1188, 1197 (10th Cir.1989), cert. denied, 493 U.S. 1059 (1990).
5
Broadly construed, Nagol's complaint seems to seek a remedy in federal court under 42. U.S.C. § 1983. However, it is well settled that not every injury inflicted by a state official acting under color of law is actionable under § 1983, and "[v]iolation of local law does not necessarily mean that federal rights have been invaded." Paul v. Davis, 424 U.S. 693, 700 (1976) (quoting Screws v. United States, 325 U.S. 91, 108 (1945)).
6
Thus, the district court correctly ruled that "the barring and physical removal of plaintiff from the meeting as well as his subsequent arrest when plaintiff attempted to reenter, smack of tort law," and do not rise to the level of constitutional violations. R. Vol. I, Tab 4 at 4 (citing Parratt v. Taylor, 451 U.S. 527, 544 (1981), overruled in part on other grounds by, Daniels v. Williams, 474 U.S. 327 (1986)). Rather, as the court noted, the situation clearly involved "individual conduct for which there exists adequate state remedy," and not the "unlawfulness of an established state procedure." Id.
7
Regarding Nagol's equal protection and due process claims, the district court correctly held that the magistrate and state court judge are absolutely immune from suit for damages. See Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir.), cert. denied, 115 S.Ct. 107 (1994). Additionally, to the extent that Nagol seeks injunctive relief and reversal of the state court's restrictions resulting from earlier litigation, he has failed to provide any evidence which would indicate a denial or lack of state procedures to remedy his alleged injury, or which would otherwise show that he did not have a full and fair opportunity to litigate the issue. In any event, we agree with the district court's conclusion that the state court's narrowly written requirement that Nagol be represented by counsel or have prior judicial approval to file suits is constitutional. See Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir.1989).
8
Accordingly, the district court properly dismissed the complaint for failure to state a claim upon which relief can be granted.
9
AFFIRMED. The mandate shall issue forthwith.
*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3 | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/154084/ | 99 F.3d 1150
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Victor ONTIVEROS, Petitioner-Appellant,v.Donald A. DORSEY, Warden; Attorney General for the State ofNew Mexico, Respondents-Appellees.
No. 96-2036.
United States Court of Appeals, Tenth Circuit.
Oct. 22, 1996.
1
Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER,** District Judge.
2
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, appellant's request for oral argument is denied, and the case is ordered submitted without oral argument.
3
Petitioner-appellant Victor Ontiveros appeals from the district court's order adopting the recommendation of the magistrate judge and denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed his notice of appeal on February 13, 1996, and the district court granted a certificate of probable cause to appeal on February 27, 1996.1
4
On appeal, petitioner claims (1) his convictions were not supported by sufficient evidence; (2) the trial court lacked subject matter jurisdiction over his criminal prosecution; and (3) his right to appeal was violated by the provision of an inadequate record which hampered his presentation of his claim of prosecutorial misconduct. "We review the district court's legal conclusions de novo and its factual findings for clear error." Thomas v. Kerby, 44 F.3d 884, 886 (10th Cir.1995). We note petitioner does not appeal two additional issues that were also rejected by the district court: (1) whether petitioner had a valid entrapment defense; and (2) whether the trial court erred when it refused to strike three jurors for cause. As these issues are not appealed, any challenge by petitioner to the district court's rulings on these issues is waived. See United States v. Santistevan, 39 F.3d 250, 256 (10th Cir.1994).
FACTS
5
The basic facts in this case are undisputed. In October 1991, petitioner and his codefendant, Nick Chavez, drove from Alamagordo, New Mexico, to El Paso, Texas, allegedly to purchase car parts. Prior to their departure, Jesus Carrillo, an undercover agent, had arranged to meet the pair in El Paso, where petitioner and Chavez had arranged for Carrillo to purchase cocaine from a third party. Carrillo paid petitioner and Chavez to transport the cocaine back to Alamagordo inside the spare tire in Chavez's van. Petitioner turned the cocaine over to Carrillo at a meeting at Chavez's house in Alamagordo. Several months later, petitioner and Chavez were arrested and charged with one count of trafficking cocaine by distribution, N.M Stat. Ann. § 30-31-20(A)(2), and one count of conspiracy to traffic cocaine by distribution, N.M. Stat. Ann. §§ 30-28-2 and 30-31-20(A)(2). Following a jury trial, petitioner was convicted on both counts and sentenced to nine years' imprisonment on the first count and three years' imprisonment on the second count, to run consecutively. Both sentences were enhanced by one year under the New Mexico habitual offender provisions.
6
The New Mexico Court of Appeals affirmed petitioner's convictions on April 7, 1994. A petition for certiorari to the New Mexico Supreme Court was summarily denied. Petitioner filed a state petition for habeas corpus relief which also was denied. Petitioner then filed the federal habeas corpus petition which is the subject of this appeal, raising the same issues he raised to the state court.
DISCUSSION
Insufficient Evidence:
7
Petitioner contends the state did not prove each element of the crimes for which he was convicted. In considering the sufficiency of the evidence supporting a state conviction, a federal court must consider the record and, " 'after viewing the evidence in the light most favorable to the prosecution,' " ultimately decide whether no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Bowser v. Boggs, 20 F.3d 1060, 1064 (10th Cir.) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citation omitted)), cert. denied, 115 S. Ct. 313 (1994).
8
Petitioner argues there was insufficient evidence to prove he transferred cocaine to another, an element of trafficking cocaine by distribution. See section 30-31-20(A)(2). Petitioner asserts his participation in Carrillo's purchase of the cocaine was by way of introduction to the source only and did not constitute " 'distribution, sale, barter, or giving away any controlled substance.' " Appellant's Br. at 14 (quoting section 30-31-20(A)(2)). In addition, he argues the cocaine was never his, and therefore, "it was logically impossible for him to sell, distribute, trade or do anything else with the cocaine." Id. at 15.
9
Under New Mexico law, " 'traffic' " means "distribution, sale, barter or giving away of any controlled substance." N.M. Stat. Ann. § 30-31-20(A)(2). The distribution of a controlled substance is defined as "to deliver other than by administering or dispensing," id. section 30-31-2(J), and " 'deliver' means the actual, constructive or attempted transfer from one person to another of a controlled substance," id. section 30-31-2(G).
10
Here, petitioner admits he hid the cocaine inside the spare tire in Chavez's van, transported the cocaine back to New Mexico, and delivered the cocaine to Carrillo. As the state appellate court determined, this is sufficient evidence to support a conviction for trafficking under New Mexico law. See State v. Borja-Guzman, 912 P.2d 277, 281 (N.M.Ct.App.) ("The various means of trafficking and the broad definition of deliver evinces a legislative intent to authorize prosecution and punishment for each separate transfer of a controlled substance."), cert. denied, 911 P.2d 883 (N.M.1996).
11
Equally unavailing is petitioner's argument that he could not have trafficked cocaine because the cocaine did not belong to him. Ownership of the controlled substance is irrelevant. See State v. Hernandez, 720 P.2d 303, 311 (N.M.Ct.App.) (holding that lack of ownership of controlled substance cannot be used to show defendant could not be guilty of trafficking), cert. denied, 718 P.2d 1349 (N.M.1986).
12
Next, petitioner claims the evidence supporting his conviction for conspiracy was insufficient. Petitioner argues Chavez knew nothing about the drug transaction and therefore, petitioner could not have conspired with Chavez to traffic cocaine. He further asserts that even if Chavez "did suspect something happening," if there was no specific agreement between them, "there was no conspiracy." Appellant's Br. at 17.
13
In rejecting these arguments, the New Mexico Court of Appeals stated petitioner did not object to Carrillo's testimony that petitioner told him Chavez would be with him in El Paso, and that Chavez ordinarily helped him with this kind of transaction. R. Vol. I, doc. 9, ex. M at 7. Carrillo further testified that Chavez himself told him the El Paso source was reliable. Id. Moreover, it was not disputed that the van used to transport the cocaine belonged to Chavez, and he was involved in hiding the cocaine and transporting it to New Mexico. Id.
14
Federal habeas review of state court determinations is " 'sharply limited' and a court 'faced with a record of historical facts that supports conflicting inferences must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflicts in favor of the prosecution and must defer to that resolution.' " Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir.1996)(quoting Wright v. West, 505 U.S. 277, 296-97 (1992)). "Explicit and implicit findings by state trial and appellate courts 'shall be presumed to be correct,' 28 U.S.C. § 2254(d), unless one of the seven factors listed in section 2254(d) are present, or the federal court concluded that the state court findings are not fairly supported by the record." Case v. Mondragon, 887 F.2d 1388, 1392 (10th Cir.1989) (quoting Rushen v. Spain, 464 U.S. 114, 120 (1983)), cert. denied, 494 U.S. 1035 (1990). "The presumption applies to basic, primary, or historical facts and the inferences that can properly be drawn regarding them." Id. at 1393.
15
Petitioner has not shown that his state convictions were obtained in violation of federal constitutional law.2 See Jackson, 443 U.S. at 323. Following our review of the state court record, we determine that the state appellate court's determination that there was sufficient evidence to sustain petitioner's conviction for conspiracy to traffic cocaine under New Mexico law, is entitled to a presumption of correctness. See id. ("[a] judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is ... entitled to deference by the federal courts").
Subject Matter Jurisdiction:
16
Next, petitioner contends the New Mexico state court did not have subject matter jurisdiction to prosecute him for the crimes with which he was charged. Petitioner asserts the actual transfer took place in Texas at the time Carrillo purchased the cocaine and any further exchange was "immaterial" to the charge of trafficking cocaine by distribution. Appellant's Br. at 21-22. He further asserts there was no evidence indicating any agreement to traffic in drugs took place in New Mexico. Id. at 22.
17
As the state appellate court found, there was uncontroverted evidence that petitioner and Chavez hid the cocaine in the spare tire in Chavez's van, transported the cocaine to New Mexico, and delivered it to Carrillo. As the state court of appeals noted, "[t]o the extent that Defendant Ontiveros argues that the crime of trafficking cocaine should be limited to big drug dealers and not small drug couriers, ... such considerations are for the legislature, not this Court." R. Vol. I, doc. 9, ex. M at 6. We agree.
18
As to petitioner's challenge to New Mexico's jurisdiction over the conspiracy charge, we have previously determined the state appellate court's findings that there was sufficient evidence to indicate petitioner and Chavez entered into a plan in New Mexico to travel to El Paso to obtain a drug connection for Carrillo are presumed correct. However, even if for purposes of this analysis we were to assume the conspiracy did not take root until they reached Texas, it continued until the pair returned to New Mexico and turned the cocaine over to Carrillo. See State v. Villalobos, 905 P.2d 732, 735 (N.M.Ct.App.1995) (New Mexico supports concept that a conspiracy may continue for an extended time period across jurisdictional lines), cert. quashed as improvidently granted, 916 P.2d 1343 (N.M.1996). Therefore, it is clear that sufficient evidence supported both of petitioner's convictions, and New Mexico had subject matter jurisdiction over the criminal proceedings.
19
Incomplete Record and Prosecutorial Misconduct:
20
Petitioner asserts his ability to appeal his conviction was hampered by an inadequate trial record. He claims that he "was denied access to the unaltered tape-recordings of his trial for purposes of preparing this habeas corpus petition." Appellant's Br. at 25. He further asserts that a court order providing petitioner was to be provided with another copy of "tapes seven and eight of the trial," was never obeyed.3 Id. at 26.
21
In a footnote, petitioner alleges "several tapes containing information material to [petitioner's] defense were altered, erased, or otherwise inaudible." Id. at 26 n. 12. The state responds these are serious allegations without evidence, offer of proof, or even identification of the referenced tapes. Appellee's Br. at 12. The state points out the inconsistency between petitioner's allegations to this court on appeal and his pro se petition, in which he stated these few remarks by the prosecutor during closing arguments were the only "missing" portions of the taped transcript. We agree that petitioner has cited us to no other tapes which were allegedly altered, erased, or otherwise tampered with. Our review in this matter, therefore, was unaided by these allegations which misrepresent the evidence.
22
Specifically, petitioner claims the prosecutor made improper remarks during closing arguments, linking petitioner with " 'Pablo Acosta'--a renowned drug dealer and stated Petitioner was part of a 'drug ring' out of Juarez, Mexico." Appellant's Br. at 27. Petitioner claims these remarks, not audible on the tape of closing arguments, are followed by a period of silence and a bench conference during which his counsel was objecting and moving for a mistrial. Id.
23
We review allegations of prosecutorial misconduct de novo. Fero v. Kerby, 39 F.3d 1462, 1473 (10th Cir.1994). "In determining whether a petitioner is entitled to federal habeas relief for prosecutorial misconduct, it must be determined whether there was a violation of the criminal defendant's federal constitutional rights which so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id.
24
We have listened to Tape 7, 8-25-92, allegedly containing the prosecutor's remarks. We agree there is a period of silence on the tape. In support of his contention that the alleged improper remarks of the prosecutor were erased, petitioner states that "[w]hen the recorder comes back on, it is during a bench conference, and defense counsel is objecting to prosecutorial misconduct and making a motion for a mistrial." Appellant's Br. at 27. This only is accurate as far as it goes, and again misrepresents the evidence. What is on the tape when it again becomes audible is a bench conference in which defense counsel is moving for a mistrial based on comments by the prosecutor calling petitioner's credibility into question. Defense counsel states, "What he just stated there, what Mr. Key just stated there was no different than standing there and calling my client a liar. That's prosecutorial misconduct and on that basis I move for a mistrial." Tape 7, 8-25-92 at tape counter 286-89.
25
This part of the exchange, although whispered, is audible and understandable. It is, however, incompatible with petitioner's allegations of improper remarks regarding a relationship between petitioner and a Mexican drug connection. Therefore, in light of the lack of any evidence that the alleged remarks were ever made in the prosecutor's closing statement,4 our review of the tape and the state court proceedings reveal no error of constitutional magnitude which rendered petitioner's trial fundamentally unfair. See Darden v. Wainwright, 477 U.S. 168, 181 (1986) (holding defendant must show the prosecutor's improper conduct rendered the trial fundamentally unfair and a denial of due process).
26
The judgment of the district court is AFFIRMED.
*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
**
Honorable G. Thomas Van Bebber, Chief Judge, United States District Court for the District of Kansas, sitting by designation
1
On April 24, 1996, while petitioner's appeal was pending, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, was enacted into law. AEDPA amended 28 U.S.C. § 2253 to require a "certificate of appealability" issued "only if the applicant has made a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). Because petitioner here filed his appeal and was granted a certificate of probable cause before the amendment of § 2253, the district court's grant of a certificate of probable cause under the version of § 2253 then in effect was proper. Nickel v. Hannigan, No. 94-3417, 1996 WL 560706, * 9 n. 4 (10th Cir. Sept. 30, 1996). Also during the pendency of this appeal, the Prison Litigation Reform Act of 1995 (PLRA), Pub.L. No. 104-134, 110 Stat. 1321 (1996), amending the in forma pauperis statute, 28 U.S.C. § 1915, was enacted on April 26, 1996. Because petitioner's permission to proceed in forma pauperis was granted by the district court prior to PLRA's enactment date and was not revoked, we determine it unnecessary to decide whether the amendments to § 1915 apply here
2
Although petitioner appears to invoke two of the § 2254(d) exceptions to the presumption of correctness--the state court lacked subject matter jurisdiction to prosecute the crimes with which he was charged, § 2254(d)(4), and he "was otherwise denied due process of law in the State court proceeding," § 2254(d)(7),--because we ultimately determine these claims are without merit, they do not afford an avenue for challenge to the presumption of correctness afforded the state court's determinations
We note that the AEDPA, enacted on April 24, 1996, limited and narrowed the exceptions to the presumption of correctness in 28 U.S.C. § 2254(d). Because we have determined that petitioner could not be afforded relief under any of the previous exceptions, he obviously could not be afforded relief under the new, stricter version, and therefore we need not decide here whether the amended version of § 2254(d) should be applied retroactively.
3
We note that in our record on appeal, we were provided with an original and a duplicate of tape seven of the trial proceedings
4
The state notes in its brief that Carrillo testified at petitioner's sentencing hearing that he had intelligence information linking petitioner with "Pablo Acosta, a known kingpin out of Presidio, Texas. Presidio, on the Mexican side of Presidio." Appellees' Br. at 15 | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2824085/ | MEMORANDUM DECISION
Aug 10 2015, 8:31 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEES
Keith Bullock, Jr. Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Kristin Garn
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Keith Bullock, Jr., August 10, 2015
Appellant-Petitioner, Court of Appeals Case No.
49A02-1411-MI-833
v. Appeal from the Marion Circuit
Court
The Honorable Louis F. Rosenberg,
State of Indiana and Indiana Judge
Bureau of Motor Vehicles, The Honorable Mark A. Jones,
Master Commissioner
Appellees-Respondents.
Trial Court Cause No. 49C01-1401-
MI-1522
Bradford, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-833 | August 10, 2015 Page 1 of 6
[1] In 2003, Appellee-Respondent the Indiana Bureau of Motor Vehicles (“BMV”)
determined Appellant-Petitioner Keith Bullock, Jr., to be a habitual traffic
violator (“HTV”) and suspended his driver’s license for five years. In 2004,
Bullock was convicted of operating a vehicle after being designated an HTV,
and his driver’s license was accordingly suspended for life. Also in 2004, due to
an apparently erroneous court record, a conviction for operating a vehicle while
intoxicated (“OWI”) within five years of a prior OWI conviction was entered
on Bullock’s BMV driver record. In 2007, Bullock was convicted of operating a
vehicle after his license was forfeited for life. In 2014, Bullock petitioned to
have his driving privileges restored, which petition the trial court denied.
Bullock contends that (1) the trial court erred in denying his petition to reinstate
driving privileges, (2) the suspension notice for the erroneous OWI conviction
showed a five-year suspension while the erroneous abstract of judgment showed
a lifetime suspension, and (3) he was otherwise prejudiced by the erroneous
OWI conviction. We affirm.
Facts and Procedural History
[2] At some point in 2003, BMV designated Bullock an HTV by virtue of
accumulating more than ten qualifying traffic violations in a ten-year period.
As a result, BMV suspended Bullock’s driver’s license for five years, until
September 3, 2008. On March 18, 2004, Bullock was found guilty of operating
after having been designated an HTV, a Class D felony, which resulted in
Bullock’s license being suspended for life pursuant to Indiana Code section 9-
Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-833 | August 10, 2015 Page 2 of 6
30-10-16. Bullock’s BMV driver record, as of October 23, 2013, reflects that
Bullock was also convicted of OWI within five years of a prior OWI on March
18, 2004, in cause number 49F15-0309-FD-167876 (“Cause No. 167876”). In
February of 2007, Bullock was found guilty of Class C felony operating a
vehicle after his license was forfeited for life.
[3] On January 22, 2014, Bullock filed a pro se petition to restore his driving
privileges, alleging, inter alia, that he had never been convicted of OWI within
five years of a prior OWI in Cause No. 167876. On July 24, 2014, the trial
court that the abstract of judgment in Cause No. 167876 be amended to reflect
that Bullock had not been convicted of OWI within five years of a prior OWI.
On November 10, 2014, the trial court ordered that the erroneous OWI within
five years of a prior OWI conviction be removed from Bullock’s BMV driver
record but denied Bullock’s petition for reinstatement of driving privileges.
Discussion and Decision
I. Whether the Trial Court Erred in Denying Bullock’s
Petition to Reinstate his Driving Privileges
[4] Bullock contends that the trial court erroneously denied his petition to reinstate
his driving privileges. Appellees contend that Bullock does not fit criteria for
reinstatement as a matter of law.
Generally, Indiana Code section 9-30-10-14 provides means by
which a person whose driving privileges have been suspended for
life may petition a trial court in a civil action for rescission of the
suspension order and reinstatement of the person’s driving
Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-833 | August 10, 2015 Page 3 of 6
privileges, provided that certain conditions have been met. One
of these conditions is that the person “has never been convicted
of an offense under section 17 of this chapter.” I.C. § 9-30-10-
14(a)(3). Similarly, Indiana Code section 9-30-10-15 provides
that, before a trial court may order rescission of a lifetime
suspension order and reinstate a person’s driving privileges, the
court must find by clear and convincing evidence several
conditions, and again one of these conditions is “[t]hat the
petitioner has never been convicted of an offense under section
17 of this chapter.” I.C. § 9-30-10-15(b)(2). Section 17 of chapter
9-30-10 defines the crime of operating a motor vehicle while
privileges are forfeited for life[.]
Hazelwood v. State, 3 N.E.3d 39, 41 (Ind. Ct. App. 2014).
[5] As Bullock acknowledged in his petition to reinstate driving privileges, he has a
2007 conviction pursuant to Indiana Code section 9-30-10-17 for operating a
vehicle after his license was forfeited for life. Bullock’s undisputed conviction
pursuant to Indiana Code section 9-30-10-17 makes him ineligible for
reinstatement pursuant to sections 14 and 15. Bullock’s argument seems to be
that his conviction under section 17 “was dismissed from his driving record”
after serving three years of probation, Appellee’s App. p. 4, but the relevant
statutes make no exception for such circumstances. Bullock, as he admits, has
been convicted under section 17, which means that he is ineligible for
reinstatement of his driving privileges. The trial court did not err in denying
Bullock’s petition.
II. Notice-Based Argument
[6] Bullock seems to argue that he had not been given sufficient notice that he was
subject to lifetime suspension of driving privileges when was convicted of
Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-833 | August 10, 2015 Page 4 of 6
operating a vehicle while privileges are forfeited for life in 2007, the conviction
that now bars his reinstatement. As the State notes, however, Bullock did not
raise this argument in the trial court and so may not now raise it for this first
time in this court. “A party who raises an issue on appeal that was not raised in
the trial court waives that issue.” Frances Slocum Bank & Trust Co. v. Estate of
Martin, 666 N.E.2d 411, 413 (Ind. Ct. App. 1996), trans. denied.
III. Erroneous OWI Conviction
[7] Bullock maintains that he was prejudiced by the erroneous OWI conviction that
appeared on his BMV driver record, arguing that it was used to support the
imposition of the lifetime suspension that he can cannot now petition to
overturn. Even if the erroneous OWI conviction was used in this fashion,
however, Bullock’s argument fails to take into account the fact that his lifetime
suspension was also based on, and fully supportable by, his 2004 conviction for
operating a vehicle after being designated an HTV. Bullock’s BMV driver
record’s suspension information for that conviction lists the effective date of
Bullock’s associated suspension as “3/18/2004” and the length as
“Indefinite[.]” Appellee’s App. p. 150 (emphasis in original). As such, the
entry of an erroneous OWI conviction, and its associated appearance on
Bullock’s BMV driver record, can only be considered harmless error. “An error
is deemed harmless if it has not prejudiced the substantial rights of the [party].”
Boyd v. State, 650 N.E.2d 745, 748 (Ind. Ct. App. 1995). trans. denied.
Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-833 | August 10, 2015 Page 5 of 6
[8] We conclude that the trial court properly denied Bullock’s petition to reinstate
driving privileges. We further conclude that Bullock waived any notice-based
argument by failing to raise it in the trial court. Finally, any error that might
have been caused at any point by Bullock’s erroneous OWI conviction can only
be considered harmless.
[9] The judgment of the trial court is affirmed.
May, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-833 | August 10, 2015 Page 6 of 6 | 01-03-2023 | 08-11-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3867416/ | The bill in this case alleges the appointment of the *Page 131
defendant as agent of the plaintiffs, and states the business which he was to transact in that capacity. It alleges the purchase of books by the defendant, in which to record the business of his agency, and that such books were paid for by the defendant with the moneys of the plaintiffs, and that the books are the property of the plaintiffs. The bill then alleges that the defendant has refused to deliver or exhibit to the plaintiffs the said books of account, and that the defendant has used the money and other property and credit of the plaintiffs while acting as such agent, by loaning the same and otherwise, and received therefor divers sums of money for which he has not fully accounted to the plaintiffs.
The bill then charges as follows, viz: "That the said Stone fraudulently conceals said books of account from the plaintiffs, and hath removed the same from the office and place of business of said agency, founded as aforesaid by the plaintiffs; and that said Stone has received large sums of money belonging to the plaintiffs, and fraudulently retained portions of the same, and appropriated the same to his own use and benefit; and that the said Stone in the accounts he has rendered to the plaintiffs from time to time hath made false and fraudulent representations of his conduct and proceedings, to wit: among others, that he hath represented that he hath received smaller sums of money for interest than he did in fact receive as such agent, and by means of such false and fraudulent representations hath deceived the officers and agents of the plaintiffs, and hath obtained from them a certain release and discharge of a portion of said account and surrender of the bond executed by said Stone for the faithful discharge of the duties of said agency." *Page 132
The bill, among other things, prays that the defendant may be decreed to surrender and cancel the release and discharge by him held from the plaintiffs, and to return the bond executed by him and his sureties for the faithful discharge of his duties in his said agency
After a careful examination of the evidence in relation to the charges of fraud, we feel bound to say that the plaintiffs in our judgment have failed to prove them, and the only question which remains to be considered in the cause is, whether the bill ought to be dismissed, or sent to a master for an account, with liberty to the plaintiffs to prove any error or mistake in the settlement which has heretofore been made, and in the receipt or release given and executed by them, and also to prove any matters of claim not embraced by said settlement. This would be the ordinary course of the court on a bill by the principal against his factor for an account. The difficulty in pursuing this course in the present case arises from the charges of fraud contained in the bill.
We think these charges constitute the principal ground of relief set forth in the bill, and we cannot permit the plaintiffs, after having failed to prove the fraud, to fall back on the allegation that the defendant has not accounted, and has not produced and delivered his books of account, and to treat the case as if no allegation of fraud was made. The rule in relation to this subject is stated by the court in the case of Price v.Berrington, 7 Eng. L. Eq. R. 260. "When the bill sets up a case of actual fraud, and makes that the ground of the prayer for relief, the plaintiff is not entitled to a decree by establishing some one or more of the facts quite independent of fraud, but which might of themselves create a case under a totally distinct head of Equity from that which would *Page 133
be applicable to the case of fraud originally stated." And the same principle is recognized in Ferraby v. Hobson, 22 Eng. Ch. R. 255, and in Glascott v. Lang, ibid. 310.
We think the rule is founded in the highest justice. A plaintiff ought not to be permitted, considering that a Court of Chancery is always open to allegations of fraud, to speculate upon the chances of relief upon that ground, and failing in that to fall back upon a different ground.
Bill dismissed with costs, without prejudice, except as to the charges of fraud. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3874833/ | DECISION
The plaintiff, Rhode Island Insurers' Insolvency Fund (the "Fund"), moves for reconsideration of the Court's November 29, 2006 decision ("Decision")1 to deny the Fund's and the defendants', New Prime, Inc. and Prime, Inc. (collectively, "Defendants"), cross motions for summary judgment. The Defendants have objected to this motion. Jurisdiction is pursuant to Super. R. Civ. P. 59(e).
Facts and Travel
On December 23, 2000, Irene Desautel ("Desautel") was injured in a motor vehicle accident involving a truck operated by Michael Grimm ("Grimm") and owned by the Defendants. Subsequently, on May 10, 2001, Desautel filed a negligence action in this Court against the Defendants and Grimm, who then filed a third-party complaint against Casco Indemnity ("Casco"), Desautel's automobile insurer, and United Healthcare ("United") and Healthcare Recoveries, Inc.2, Desautel's health insurers. See PC-01-2344.
As a result of her injuries, Desautel collected $380,000 in medical payments from United. At the time of the accident, the Defendants and Grimm were insured by Reliance *Page 2
National Insurance Company (Reliance) for bodily injury claims up to $4,000,000. However, before Desautel could recover under this policy, Reliance was declared insolvent and ordered liquidated. As a result, Desautel recovered $100,000 from Casco, the maximum allowed under her policy for uninsured/underinsured motorist coverage.3 Additionally, she sought recovery from the Fund, a non-profit legal entity created by the state legislature pursuant to the Rhode Island Insurers' Insolvency Fund Act ("Act"). G.L. 1956 § 27-34-1 et seq.
Desautel then entered into negotiations with the Defendants and the Fund, ultimately agreeing to settle her claims for $900,000. The Defendants paid $600,000 of the settlement and the Fund contributed $300,000, while reserving its right to litigate the issue of its obligation to pay. On March 31, 2004, the Fund brought the instant action for declaratory relief, seeking a declaration that 1) the Fund's obligation to Desautel is reduced by the $100,000 she recovered under the Casco policy; 2) the Fund has the right to further offset the payments made to Desautel by United Healthcare; and 3) the Fund has no statutory obligation to Desautel to the extent that any recovery by Desautel and United would be payable to Casco and/or United.
The parties then filed cross-motions for summary judgment pursuant to Super. R. Civ. P. 56. The Fund argued that it bore no responsibility for paying any amount that would be due Casco and United because the Act specifically excludes any amount "[d]ue any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise" from its definition of the "covered claims" for which the Fund is *Page 3
responsible. Section 27-34-5(8)(ii)(C). Further, the Fund argued that Section 27-34-12(a), which governs the nonduplication of recovery, requires Desautel to exhaust her rights under all available insurance policies and grants the Fund an offset for any amount paid by another insurer. The Fund's contribution is statutorily capped at $300,000, and, as Desautel has recovered a total of $480,000 from her insurers, the Fund argued that this offset would reduce its obligation to nothing.
In their own motion for summary judgment, however, the Defendants claimed that United waived its right of subrogation when it signed a stipulation ("Stipulation") stating that it has no right to recover any money it had paid to or on behalf of Irene Desautel. (Defendant's Ex. A.) Absent an actual payment to an insurer, the Defendants argued, the exclusion contained in Section 27-34-5(8)(ii)(C) is inapplicable. In response to the Fund's argument regarding the nonduplication of recovery in Section 27-34-12(a), the Defendants argued that the claims Desautel made against United and Casco are not "covered claims" as defined by Section 27-34-5(8), and that, therefore, they are ineligible for offset under Section 27-34-12(a). Alternatively, the Defendants claimed that, even if the Court were to be persuaded by the Fund's legal argument, the case was unripe for summary judgment because the factual issue regarding the adequacy of Desautel's recovery remained in dispute.
After considering the parties' arguments, the Court issued its Decision. It found that United, by signing the Stipulation, had waived its right of subrogation, therefore barring it from ever collecting any of the proceeds paid to Desautel. Decision at 5. The Court concluded that this waiver meant that no payments made to Desautel would ever be "due" United. Id. As a result, the Court found Section 27-34-5(8)(ii)(C) inapplicable and *Page 4
the Fund's argument unavailing vis-à-vis United. Furthermore, the Court determined that the Fund's argument regarding Section 27-34-12(a), as well as its Section 27-34-5(8)(ii)(C) argument as related to Casco, was unripe for summary judgment. A proper analysis of these arguments, the Court found, was impossible without a factual determination as to whether or not Desautel had been adequately compensated by the settlement. Until the Fund could prove that Desautel has been overcompensated in this matter, the Court held, there was a genuine issue of material fact to be determined at trial. Thus, the Court denied both motions for summary judgment.
The Fund then filed the instant motion, arguing that the Decision was based upon several errors of law and should be reconsidered. The Fund argues the Court erred in determining that the adequacy of Desautel's recovery still remained in dispute. Because Desautel settled her claims against the Defendants and Grimm in full when she entered the settlement agreement, the Fund argues that she has been fully compensated and the current litigation will not affect her recovery. Furthermore, the Fund maintains that the Court misinterpreted the Act when it determined that United had the legal authority to waive its right of subrogation.
The Defendants object to the Motion for Reconsideration, arguing that the Court had adequately considered all of the Fund's arguments at the original hearing and reached the correct legal conclusions in the Decision it issued in November. The Defendants rely on their previous argument that the Stipulation acted as waiver of United's right to reimbursement, removing it from the scope of Section 27-34-5(8)(ii)(C). Additionally, the Defendants continue to argue that the issue of adequate recovery is in dispute, and that the Fund bears the burden of proving that Desautel has been fully compensated *Page 5
before it is entitled to summary judgment.
Standard of Review
The Rhode Island Rules of Civil Procedure, like the Federal Rules of Civil Procedure, generally do not recognize or provide for a motion for reconsideration. See generally Hatfield v. Bd. Of Cty. Comm'rs forConverse Cty., 52 F.3d 858 (10th Cir. 1995) (citations omitted). However, the Rhode Island Supreme Court, in noting its governance of the "liberal rules" of civil procedure, has "looked to substance, not labels." Sarni v. Melocarro, 113 R.I. 630, 636, 324 A.2d 648, 651-52
(1974). Consequently, "[a] motion can be construed as made under Rule 60(b) even if it is styled as a `Motion to Reconsider.'" James Wm. Moore et. al., Moore's Federal Practice 1997 Rules Pamphlet P60.2 [9] (1996). However, a motion to vacate filed within ten days of the judgment should be treated as filed under Rule 59(e), rather than under Rule 60.Armand Eng'g, Inc. v. Town and Country Club, Inc., 113 R.I. 515,324 A.2d 334 (1974). Therefore, the Plaintiff's motion can be construed as a motion to vacate under Rule 59(e).4
The Rhode Island Supreme Court has addressed the issue of this Court's power to reconsider decisions rendered after a nonjury trial in a civil matter. Corrado v. Providence Redevelopment Agency, 110 R.I. 549, 555,294 A.2d 387, 390 (1972). In Corrado, our Supreme Court held that the trial court "could review its own decision and *Page 6
grant a new trial only if it found a manifest error of law in the judgment entered or if there was newly discovered evidence which was unavailable at the original trial and sufficiently important to warrant a new trial." Id. at 554-55. The Court defined a manifest error of law as, "one that is apparent, blatant, conspicuous, clearly evident, and easily discernible from a reading of the judgment document itself."American Federation of Teachers Local 2012 v. Rhode Island Board ofRegents for Education, 477 A.2d 104, 106 (1984).
"Summary judgment is a proceeding in which the proponent must demonstrate by affidavits, depositions, pleadings and other documentary matter . . . that he or she is entitled to judgment as a matter of law and that there are no genuine issues of material fact." Palmisciano v.Burrillville Racing Association, 603 A.2d 317, 320 (R.I. 1992) (citingSteinberg v. State, 427 A.2d 338 (R.I. 1981); Ludwig v. Kowal,419 A.2d 297 (R.I. 1980)). During a summary judgment proceeding "the court does not pass upon the weight or credibility of the evidence but must consider the affidavits and other pleadings in a light most favorable to the party opposing the motion." Id. (citing Lennon v. MacGregor,423 A.2d 820 (R.I. 1980)).
"The party moving for summary judgment has the initial burden of showing that there is no genuine issue of material fact." Santiago v.First Student, Inc., 839 A.2d 550, 552 (R.I. 2004) (citing Heflin v.Koszela, 774 A.2d 25, 29 (R.I. 2001)). The moving party can meet this burden by "`submitting evidentiary materials, such as interrogatory answers, deposition testimony, admissions, or other specific documents, and/or pointing to the absence of such items in the evidence adduced by the parties.'" Id. (quoting Doe v. Gelineau, 732 A.2d 43, 48 (R.I. 1999)). "[T]he opposing parties will not be allowed to *Page 7
rely upon mere allegations or denials in their pleadings. Rather, by affidavits or otherwise they have an affirmative duty to set forth specific facts showing that there is a genuine issue of material fact."Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I. 1998) (citingSt. Paul Fire Marine Insurance Co. v. Russo Brothers, Inc.,641 A.2d 1297, 1299 (R.I. 1994); Super. R. Civ. P. 56(e)).
Analysis
The Fund was created to provide a framework for the payment of "covered claims" made against insolvent insurers in order "to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, and to create an entity to assess the cost of the protection and distribute it equitably among member insurers." Section 27-34-2. To cover the Fund's obligations, liability insurance carriers doing business in Rhode Island contribute resources to specialized accounts. Section 27-34-8(3). The insurers then cover the cost of supporting the Fund by levying higher premiums on their policyholders. Section 27-34-15.
Pursuant to the Act, the Fund assumes the obligations of an insolvent insurer as if the insurer had not become insolvent. Section27-34-8(a)(2). Section 27-34-8(a)(4) of the Act directs the Fund to "investigate claims brought against the fund and adjust, compromise, settle, and pay covered claims to the extent of the fund's obligation," which is statutorily capped at $300,000 per claimant for a covered claim. Section 27-34-8(a)(1)(iii). In carrying out its obligations, the Fund must "act in good faith regarding claims brought against policyholders." Rhode Island Insurers' Insolvency Fund v. Benoit,723 A.2d 303, 306 (R.I. 1999).
At the outset, the Fund argues that the Court erred in determining that this case was *Page 8
unripe for summary judgment. The Court had analogized the instant case to Benoit, where the plaintiffs in a wrongful death action sought additional compensation from the Fund (which was standing in the shoes of the defendant's now-insolvent insurer) after they had received $50,000 from their own insurance company under a uninsured/underinsured motorist policy. In that case, the Fund argued that under the nonduplication provision in Section 27-34-12(a), it was entitled to an offset for the $50,000 contributed by the other insurer. The Rhode Island Supreme Court disagreed, holding that "the [F]und may not offset the amount due from an insolvent insurer in the event a claimant has not received full compensation for damages." Id. at 308. Applying this holding to the instant case, the Court found that there was no evidence to indicate whether Desautel had been fully compensated by her settlement: "This Court requires a complete examination of Desautel's recovery amount. If this Court were to determine that the settlement amount represents full compensation to Desautel, an offset would be appropriate." Decision at 8. The Fund argues that this conclusion was founded upon a legal error. It would be unnecessary to hold a hearing to determine the amount of damages, the Fund reasoned, because that answer can be found in the terms of the settlement agreement.
Upon reconsideration, the Court agrees, finding that the settlement amount fully compensates Desautel for purposes of this litigation. The role that settlement agreements play in the judicial system is an important one: by settling claims out of court, plaintiffs often forgo a full recovery in order to avoid time-consuming litigation and hefty attorneys' fees. The Court's policy "is always to encourage settlement. Voluntary settlement of disputes has long been favored by the courts."Calise v. Hidden Valley *Page 9 Condo. Ass'n, 773 A.2d 834 (R.I. 2001) (quoting Homar, Inc. v. NorthFarm Associates, 445 A.2d 288, 290 (R.I. 1982)). To encourage settlements, the Court recognizes the finality of such agreements: "The settlement of a disputed liability is as conclusive of the parties' rights as is a judgment that terminated litigation between them."Id. Here, the parties have all agreed on the actual dollar amount to be considered adequate compensation; thus, the actual amount of damages is irrelevant to the present inquiry. Furthermore, second-guessing the compromises reached by the parties, absent an indication of wrongdoing, would undermine the finality of settlement agreements. Thus, the Court, upon reconsideration, finds that the denial of summary judgment on these grounds was based on an error of law sufficiently manifest to warrant amendment under Rule 59. Accordingly, the Court will now determine this case as a matter of law, reconsidering the parties' original arguments for summary judgment.
In moving for summary judgment, the Fund argues that under Section27-34-12(a), it is entitled to an offset for the $100,000 paid by Casco5 under Desautel's uninsured motorist's policy. The Defendants deny that this payment was made under a "covered claim" as defined by Section 27-34-5(8), and argue that, therefore, it is ineligible for set off. Both parties have relied on Benoit to support their respective arguments.
In Benoit, the claimant died in a two-vehicle accident.6 The claimant had been a passenger in a car that collided with another vehicle, driven by the defendant. At the time of the accident, the defendant had a liability insurance policy with a limit of $25,000. However, before the claimant could collect on that policy, the defendant's insurer was *Page 10
declared insolvent. Thus, the claimant collected uninsured motorist benefits of $50,000 from her own automobile insurer, and then made a demand against the Fund for the $25,000 under the defendant's insolvent policy. The Fund refused to pay, arguing that under Section 27-34-12(a), it was entitled to an offset for the $50,000 contributed by the claimant's insurer.
The Rhode Island Supreme Court began its interpretation of Section27-34-12(a) by noting that it was "`neither a model of clarity nor an exemplar of the draftsman's craft.'" Benoit, 723 A.2d at 307 (quotingArizona Property and Casualty Insurance Guaranty Fund v. Herder, 156 Ariz. 203, 751 P.2d 519, 523 (Ariz. 1988)). The language in dispute reads as follows:
"Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall be required to exhaust first his or her right under that policy. Any amount payable on a covered claim under this chapter shall be reduced by the amount of any recovery under the insurance policy." Section 27-34-12(a).
While the Fund sought to offset the amount contributed by the plaintiffs' insurer, the Supreme Court was hesitant to read Section27-34-12(a) so broadly. After recognizing that the "language is ambiguous if not contradictory," id. (quoting International CollectionService v. Vermont Property Casualty Guaranty Association,150 Vt. 630, 555 A.2d 978, 980 (Vt. 1988), the Court determined the purpose of the section to be the "prevention of double recovery." Id. Guided by this principle, it then found that the structure and language of the Section mandated that only "covered claims" could be offset by the Fund: *Page 11
"Like the Sands court, we read the phrase `any recovery under the insurance policy' in the second sentence of § 27-43-12(a) to refer to the recovery made pursuant to the first sentence, which deals with exhaustion. . . . The second sentence of § 27-34-12(a) clearly references the first, and the first sentence refers only to covered claims. Therefore, it is impossible to conclude that the second sentence allowing offset contemplated the offset of a noncovered claim. Therefore, under 27-34-12(a), the fund may only offset a covered claim." Id.
Thus, the Supreme Court concluded, the essential question was whether the $50,000 uninsured motorist claim that the plaintiffs made against their own automobile insurer qualified as a "covered claim." The Court found that it did not.
In making this determination, the Supreme Court interpreted the language of Section 27-34-5(8)7 to mean that a claim can be considered a "covered claim" only if it "results from the insolvency of an insurer." Id. The claimant's claim, the Court found, did not meet that definition: "Here, [the plaintiffs'] uninsured motorist claim was made against [their automobile insurer], a solvent, not insolvent, insurer." Id. It then sums up its conclusion even more directly:
"Because [plaintiffs' insurer] is not an insolvent insurer, and because the $50,000 recovery was clearly not `within the coverage and subject to the applicable limits' of the [defendant's policy under the insolvent insurer], the [plaintiffs'] claim under their [own automobile policy] was not a covered claim and thus did not fall within the purview of Section 27-4-12(a). Because the $50,000 claim made against [the plaintiffs' automobile insurer] is not a covered claim as defined by the act, the fund has no support for its *Page 12
position that it may offset the amount it owed on [the defendant's policy with the insolvent insurer] by the [plaintiffs'] recovery from [their own automobile insurer]." Id. at 308.
This language clearly indicates that the offset was denied because the plaintiffs' insurer "[was] not an insolvent insurer." Id. Here, Casco is also not an insolvent insurer, and therefore, under the clear language of Benoit, the Fund cannot offset its obligation by any payment Desautel collected under her uninsured motorist policy.
This interpretation of Benoit withstands the Fund's attempt to distinguish these two cases. The Fund argues that in Benoit, unlike in the instant case, it was unclear whether the uninsured motorists claim had been made as a result of the defendant's insurer's insolvency or the lack of insurance on the other car involved in the collision. The Supreme Court, before denying the offset, recognized this ambiguity, noting that the record was silent as to whether "[the plaintiffs] collected their uninsured motorist's coverage as an alternate source of insurance for their claims against Benoit." Id. at 307. The Fund seized upon this language to support the inverse conclusion — that, had there been clear evidence in Benoit that the $50,000 had been collected as a substitute for the defendant's insolvent insurance policy, the offset would have been allowed. The Fund argues that in this case, as Reliance's insolvency is the only possible trigger of Desautel's uninsured motorist policy, there is clear evidence here that Desautel's claim was the result of Reliance's insolvency. Therefore, the Fund concludes, an offset should be allowed in this case.
The Court, while acknowledging the existence of this ambiguity inBenoit, cannot follow this argument all the way to the Fund's conclusion. The Fund's analysis of this language would be colorable if it were to be examined in a vacuum; however, when read *Page 13
in conjunction with the other passages from the opinion cited above, this interpretation fails. The Supreme Court's unambiguous discussion of the solvency/insolvency distinction indicates that even if the claimants in Benoit made their claim as a result of the defendant's insurer's insolvency (and not as the result of the other uninsured vehicle) the offset is not allowed because the plaintiff's insurance company was solvent, provided however, that it does not provide for double recovery for the claimant. Id. at 308.
The Supreme Court addresses this last point in order to comport its decision with the purpose of the Act. If the claimant inBenoit prevails in her wrongful death action, the Supreme Court notes, she will be entitled to collect a statutory minimum of $100,000, and then the $50,000 she had received from her own insurer would not provide adequate compensation. See Section 10-7-2. Therefore, the Court concluded, the Fund, covering the obligations of the insolvent insurer, will be responsible for paying the claimant $25,000, the maximum allowed under the defendant's policy under the insolvent insurer. The defendant will then be liable for the rest of the judgment. Benoit,723 A.2d at 308. Succinctly put, the Supreme Court stated its rationale as follows:
In our opinion, the fund may not offset the amount due from an insolvent insurer in the event a claimant has not received full compensation for damages. . . . By so holding, we achieve a result that conforms with the `intent of the section to prevent a duplication of recoveries, and comports with the act's purpose to leave a claimant in the same position as if there had been no insolvency.' Id. (citing Int'l Collection Service, 555 A.2d at 980.)
This rationale comports with the decision reached by the Court today. Overcompensation is not an issue in the present case. At oral argument, counsel for the Fund repeatedly stressed that Desautel has been fully compensated by the $1.38 million she has received. In neither the written memoranda accompanying the Fund's motion for reconsideration *Page 14
nor the arguments of counsel at hearing8 does the Fund allege that Desautel should return any of the money she has already received.9
Thus, all parties agree that the $1.38 million received by Desautel represents adequate, and not duplicative, compensation; in fact, had she not received the additional $300,000, she would have been consideredundercompensated.
The Fund argues that it is not trying to undercompensate Desautel — she will keep the $1.38 million, but it is the Defendants, not the Fund, who should be responsible for the $300,000. Here, too, the Fund's argument runs contrary to the plain language of the Act and the holding in Benoit. The Legislature has stated that the purpose of the Act is to "avoid financial loss to claimants or policyholders because of the insolvency of an insurer." Section 27-34-2. (Emphasis added.) "It is well settled that when the language of a statute is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings."Tanner v. Town Council, 880 A.2d 784, 796 (R.I. 2005) (citations omitted). "Moreover, when we examine an unambiguous statute, `there is no room for statutory construction and we must apply the statute as written.'" Id. By including the term "policyholders" in Section 27-34-2, the Legislature made it clear that a significant purpose of the Act is to protect *Page 15
the policyholders who had the foresight to shield themselves from liability by purchasing insurance policies.
Certainly, there are situations where the "claimant" and the "policyholder" are one and the same, but if the Legislature intended to protect only the policyholders who were also claimants, the disjunctive phrase "or policyholders" becomes superfluous. The Court's interpretation of a statute is guided by its desire to give effect to the intent of the Legislature, and therefore, it is to be presumed that each word, sentence, and provision of a statute is significant.Ret. Bd. Of the Emples. Ret. Sys. Of R.I. v. DiPrete, 845 A.2d 270, 279
(R.I. 2004) (citing Champlin's Realty Assocs., L.P. v. Tillson,823 A.2d 1162, 1165 (R.I. 2003). Furthermore, the Rhode Island Supreme Court has made the dual purpose of the Act perfectly clear: "Under the act, the fund inherits the obligations of the insolvent insurer and thus must protect insureds when an insolvent company is unable to do so."Benoit, 723 A.2d at 309. Other jurisdictions have similarly found that the dual purpose of an insurance insolvency fund is to protect both claimants and the insureds. See, e.g., California Ins. Guar. Ass'n v.Liemsakul, 193 Cal. App. 3d 433, 441-42 (Cal.Ct.App. 1987) ("The [California Insurance Guaranty Association] scheme was enacted to protect the insured public, which includes the insureds of insolvent insurers, as well as third-party claimants."); Prios, 863 P.2d at 1365 ("The policy of protecting the insureds of insolvent insurers, as well as third party claimants, is equally applicable to the Washington statute.").
Upon reconsideration, the Court recognizes that it erred in denying the Defendants motion for summary judgment. Although it was the Fund that argued that this case could be determined as a matter of law, the law in fact favors the Defendants on this issue. *Page 16
Before concluding its analysis, however, the Court must address the Fund's other argument, regarding the exclusion provision in Section27-34-5(8)(ii)(C).
The Fund argues that it should receive a setoff for the money contributed by United because United had a lien on any payments made to Desautel. Section 27-34-5(8)(ii)(C) states that a "`[c]overed claim' shall not include any amount . . . [d]ue any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise. . . ." Thus, the Act expressly forbids the Fund from covering any claim that would be due an insurer, including for purposes of subrogation. See McGuirl v. Anjou Int'l Co., 713 A.2d 194, 197-8
(R.I. 1998). In the original Decision, the Court dismissed the Fund's arguments on this point, finding that the Stipulation signed by United prevented it from ever recouping any of the money it had paid to Desautel, therefore removing her claim from the purview of this exception. See Decision at 5.
The Fund asks the Court to reconsider this holding. In support, the Fund cites a multitude of cases wherein an insurer could not waive or assign its right of subrogation in order to place the loss on the Fund or to provide for double compensation for the plaintiff. See Ferrari v.Toto, 417 N.E.2d 427, 429 n. 2 (Mass. 1981); Kinney v. Leaman,436 N.E.2d 996 (Mass.App. 1982); Ventulett v. Maine Ins. Guar. Ass'n,583 A.2d 1022, 1024 (Me. 1990); Besack v. Rouselle Corp., 706 F. Supp. 385, 387
(E.D. Pa. 1989); Proios v. Bokeir, 863 P.2d 1363, 1368-69 (Wash.App. 1993). These cases, however, are not directly on point. In several, the Fund was not obligated to pay a claimant because another insurance company has already fully compensated him or her. See Ferrari,417 N.E.2d at 429 ("There is no reason why [the plaintiff] should have any greater rights because [the defendant's insurer] became insolvent[.]");Ventulett, 583 A.2d at 1024 *Page 17
(There is no reason why [the plaintiff] should have any greater rights because [the defendant's insurer] became insolvent or because [the Act creating the insolvency fund] was enacted."); Besack,706 F. Supp. at 387 ("If he were able to do so, [the plaintiff] would be able to recover more money than he could have if [the defendant's insurer] had remained solvent. . . . [S]uch a double recovery would exceed the loss-prevention purposes of the Act."); Proios, 863 P.2d at 1367 ("We believe that the correct approach is to allow the offsets if they are consistent with the policy behind the act, which is to avoid financial loss to the public, and the policy behind the nonduplication provision, which is to prevent double recoveries.").
Additionally, several of these cases hold that, as between another, solvent insurer and the Fund, the solvent insurer is to absorb the loss created by the insolvency of a fellow insurer, and no amount of "agreements" between insurance companies and plaintiffs can alter that statutorily-prescribed allocation. See Ferrari, 417 N.E.2d at 420 n. 2 ("Such an agreement should not be permitted to alter the legislative judgment that the loss should not be placed on the Fund.");Ventulett, 583 A.2d at 1024 ("[A]s between [a] workmen's compensation insurer and the Fund, the loss must be absorbed by the workmen's compensation insurer.").
These holdings are in accordance with the Court's decision today. The Fund is not asked to bear the loss in lieu of United; rather, it is absorbing a loss that would otherwise fall to the defendants, the policyholders — a result effectuating the purpose of the Act. Furthermore, as discussed above, all parties do not dispute that the $1.38 million settlement adequately compensates Desautel for her injuries, and she has not been overcompensated by the $300,000 contributed by the Fund. These cases can all be *Page 18
harmonized when one considers the purpose behind these insolvency acts: to avoid loss to claimants and policyholders when an insurer is declared insolvent, while avoiding double recovery for claimants.
Conclusion
Upon reconsideration, the Court determines that its Decision finding that this case was unripe for summary judgment was made in error, and that this error constitutes sufficient cause to amend the judgment pursuant to Super. R. Civ. P. 59(e). The Decision entered on November 29, 2006 is hereby amended. The Court, after reconsidering the parties' original motions for summary judgment, hereby grant the Defendants' motion for summary judgment. The Fund's motion for summary judgment must be and is denied.
Counsel shall submit an appropriate order for entry.
1 The full text of the Decision can be found at Rhode IslandInsurers Insolvency Fund v. New Prime, No. 04-1703, 2006 R.I. Super. Lexis 157 (Nov. 29, 2006)).
2 Healthcare Recoveries, Inc. is not an interested party in this motion.
3 "The policyholder of an insolvent insurer comes within the definition of . . . uninsured motorist coverage." Rhode Island Insurers'Insolvency Fund v. Benoit, 723 A.2d 303, 306 (R.I. 1999); see also
Section 27-7-2.1(a) (stating in relevant part that uninsured motorist coverage applies "in the case of a responsible party whose liability insurance carrier was insolvent at the time of the accident or became insolvent subsequent thereto").
4 Under Rule 59(e), a motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment. The judgment in this case entered on November 29, 2006. The tenth day after this entry was December 9, 2006, which fell on a Saturday. Under Rule 6(a), "In computing any period of time prescribed or allowed by these rules, by order of court or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period is to be included,unless it is a Saturday, Sunday, or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor a holiday." (Emphasis added.) Thus, the Court considers the following Monday, December 11, to be the tenth day for the purposes of this action. The Fund filed its motion on December 11; thus, it is timely under the statute.
5 In its reply brief, the Fund apparently limited its argument under this section to the payments Desautel received from Casco; it did not claim that the payment from United resulted from the insolvency of an insurer.
6 The claimant's parents, as co-administrators, sued on behalf of the claimant's estate, as well as in their individual capacity.
7 Section 7-34-5(8) defines a "covered claim," in relevant part, as "an unpaid claim, including one for unearned premiums, submitted by a claimant, which arises out of and is within the coverage and subject to the applicable limits of an insurance policy to which this chapter applies issued by an insurer, if the insurer becomes an insolvent insurer on or after July 1, 1988."
8 See The Fund's Brief in Support of its Motion for Reconsideration at 4. ("Desautel received her full settlement and the issue in this case is strictly between the Fund and [the Defendants] and whether [the Defendants are] responsible to reimburse the Fund for the $300,000 that constituted its reserved portion of the settlement.") Additionally, at oral argument, counsel for the Fund repeatedly indicated that Desautel was entitled to the full $1,380,000 she has received. ("Ms. Desautel received $380,000 from United Health care, didn't have to pay it back, so she received that benefit as part of her settlement. That wasn't part of the $900,000 she got from [the Defendants] and the Fund, that's separate and apart, a pot of money over here."; "So really, she settled for $1.4 million, or $1.38 was her total settlement."; "There is no indication in the record that she was not fully satisfied by the 1.4.").
9 While in its original motion for summary judgment, the Fund indicated that the $900,000 payment to Desautel included the payments from United, the brief accompanying the Fund's Motion for Reconsideration and counsel's argument at hearing indicate that the Fund has abandoned this interpretation of the settlement. *Page 1 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3409239/ | Appellant, Payette Valley Produce Exchange, through its sales agents, Stewart Branch, entered into a brokerage contract with R.H. Shake and A.C. Patheal, respondents, for their fruit crops. The fruit was delivered to appellant and after deducting all offsets to which appellant was entitled by way of commissions and money advanced, there remained due to respondents on the basis of the price as claimed by respondents to have been fixed, the sum of $2,148.75. Defendant's motion for nonsuit was denied and the jury returned a verdict in favor of respondents.
The written contract provided that appellant was to have the exclusive right to sell, transfer, assign or exchange the produce mentioned for a period of one year, subject to certain conditions, the main provision material in this case being as follows:
"The party of the second part agrees that the party of the first part shall have the sole and exclusive privilege of stating at what time and to whom and at what prices this produce shall be sold."
The written contract did not provide for delivery of the fruit at any specified time. The complaint alleged that at the time of delivery the price was fixed. The answer denied that the respondents designated to whom and at what price the apples should be sold. This was a question of fact for the jury and by their verdict the jury found adversely to appellant. By the terms of the agreement appellant was liable for the purchase price when received, deducting marketing commissions and advances. Respondents had the right to and did fix the price at which the apples were to be sold. Having undertaken to sell and having received the apples under the oral directions completing the written agreement, appellant was bound to sell for that price and was not at liberty to sell at a different price than that specified by respondents. Appellant urges that the price fixing was a guarantee; that is in a way a misnomer, because the undisputed evidence discloses that a definite *Page 407
amount was agreed upon by appellant through its agents and respondents. If there was a guarantee it merely reinforced the obligation already resting on appellant and it is liable because the price was thus fixed substantially as provided for by the contract. (25 C. J., 367, n. 82; Betts v. SouthernCalifornia Fruit Exchange, 144 Cal. 402, 77 P. 993.) There being ample evidence to support the finding of the jury that respondents gave specific directions as to the price, the jury were justified in finding their verdict on this phase of the controversy in favor of respondents.
Appellant urges that it was error to admit in evidence the oral agreement subsequently entered into between the parties for the reason that parol evidence is not permissible to vary the terms of a written agreement. The so-called oral guarantee covering delivery and price was a completion of the written contract and did not in any way vary its terms. Where a contract is incomplete and certain matters are left to be fixed, subsequent oral agreements to complete such written contracts and so intended may be shown. (Wigmore on Evidence, vol. 4, 2441; 22 C. J. 1273, sec. 1693; Dike v. Martin,85 Okl. 103, 204 P. 1106; Shimizu v. Norjiri, 59 Cal. App. 375,211 P. 40; Overstreet v. Merritt, 186 Cal. 494, 200 P. 11.)
It is not disputed that L.V. Stewart and G.W. Branch were general sales agents of the appellant at Payette and had charge of the business in that locality which consisted of the dealing with fruit growers for the season of 1921. Respondents were required and had the right to notify the appellant organization as to the price at which respondents would sell and the dealings between respondents and appellant's agents amounted at least to this. No error is predicated upon the instruction by which the court advised the jury that one question for consideration was: Did the defendant's authorized agents agree upon a price with the plaintiffs for said apples? This instruction was correct and the jury by their verdict found a price had been fixed. Furthermore appellant accepted the benefits of the transaction of its agents after it had knowledge of all the *Page 408
facts and, after suit was instituted by respondents, appellant filing a cross-complaint seeking to retain its commissions on the sale of this fruit. It is well settled that a principal cannot repudiate a contract entered into by its agents in excess of the agents' authority and at the same time accept and retain the benefits that accrue from such act. (Pettengill v.Blackman, 30 Idaho 241, 164 P. 358; Davenport v. Burke,30 Idaho 599, 167 P. 481; Hammitt v. Virginia Mining Co., 32 Idaho 245,181 P. 336.)
The judgment of the lower court is therefore affirmed, and it is so ordered. Costs awarded to respondents.
William A. Lee, C.J., and Wm. E. Lee, Budge and Taylor, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3409243/ | Appellant was charged in justice court with driving a motor vehicle on the highways July 24, 1944 while under the influence of intoxicating liquor in violation of Sections 48-502, 48-558, I.C.A.1
He appealed from a conviction in the justice court to the District Court, where he was again convicted by a jury which recommended leniency and no jail sentence. *Page 501
The court imposed a $300.00 fine, sixty days in jail and costs in both courts of $142.652.
Appellant assigns as errors, the insufficiency of the evidence to prove he was intoxicated within the meaning of the statute; that the costs and fine exceeded $300.00, the asserted jurisdiction of the justice court; the court's refusal to permit Dr. Belknap to answer a hypothetical question; that Instruction No. 5 was erroneous and appellant's requested Instruction No. 2 should have been given.
Appellant with his housekeeper, between 10:00 and 12:00 P.M. in an automobile, in Nampa, turned from 16th Avenue east onto Third Street North and collided with another car, breaking appellant's windshield, whereby his housekeeper was rather seriously cut and bruised about the face; bystanders called his attention to her condition which he evidently at first had not noticed and urged him to take her to a hospital. He started to drive toward the Mercy Hospital, some nine blocks south on 16th Avenue; a tire going flat, they started to walk, inquired at a residence as to the location of the hospital, and were later picked up by a passing motorist who took them to the hospital.
Bystanders at the scene of the accident, the people of whom appellant inquired the way to the hospital, the parties who eventually transported him and his house-keeper to the hospital, and the nurses at the hospital, testified, as to his actions and conduct, manner of talking and walking, all of a nature to indicate an erratic condition, and stated he was intoxicated and some testified the odor of liquor was noticeable about him. Appellant concededly had had several glasses of beer during the afternoon and early evening. He denied he had drunk any whiskey, *Page 502
though it was shown a pint bottle of whiskey was purchased on his liquor license at the Nampa liquor store that day, and he produced witnesses who testified he was not intoxicated, though one of his witnesses on cross-examination inadvertently and perhaps therefor as it were, 'letting the cat out of the bag' testified, 'He might have said (referring to appellant's arrest) everybody knew that he (appellant) was drunk anyway.' Appellant urges his actions so far as they were erratic, were due to shock and concern over his housekeeper. While there was thus a conflict in the evidence as to his condition, there was sufficient evidence to justify the jury's conclusion he was intoxicated within the meaning of the statute. (Packard v.O'Neil, 45 Idaho 427, 262 P. 881, 56 A.L.R. 317; State v. Hurd
(Wash.), 105 P.2d 59; Daniels v. State (Tenn.), 296 S.W. 20;State v. Dudley (La.), 106 So. 364; State v. Duguid (Ariz.),72 P.2d 435; Randolph v. State (Tex.), 169 S.W.2d 178.)
Appellant propounded a hypothetical question to Dr. Belknap purportedly reciting the facts of the case from appellant's viewpoint, concluding thus: "Now basing your opinion upon these facts, are you able to state whether or not, in your opinion, this man was under the influence of intoxicating liquor?" If the doctor had said "Yes", he had an opinion, appellant would no doubt have inquired further and ascertained what that opinion was. Since the question was preliminary and conceding, therefore, that the objection should not have been sustained, immediately thereafter the doctor was asked these further questions and gave the responsive answers:
"Q. Then doctor, is it or is it not a fact that a person who becomes excited and alarmed and worried over what appears to him to be a serious injury to another who is his employee, and who is there present with him at the time, could very conceivable cause him to stagger about and walk unsteadily and generally manifest evidence of intoxication?
"A. Yes.
"Q. In other words a person who became excited, rattled, alarmed and worried about an employee, could stagger about and generally manifest certain evidence *Page 503
which are manifested by people who are under the influence of intoxication.
"A. Yes.
* * * *
"Q. Would it be possible, Doctor, with reasonable certainty, to state whether or not a person who staggered about and was in a rattled state of mind, would it be possible to state that such a person was under the influence of intoxicating liquor, or whether that condition was caused by something else.
* * * *
"A. It would not be impossible to state with certainty that he staggered but the stagger might be caused by different things."
Appellant made no offer of proof and absent the desired detailed disclosure, it would seem the questions and answers above noted sufficiently brought to the attention of the jury the substance of what appellant doubtless desired to elicit from the physician with regard to appellant's condition. Thus there was no reversable error.
Appellant's assignment as to Instruction No. 5 given and Appellant's No. 2 refused is not argued and no authorities are offered in support of such assignment, it, therefore, need not be and will not be considered, discussed, reviewed or determined. (State v. Brockman, 39 Idaho 468 at 477, 228 P. 250;State v. Petereit, 39 Idaho 715 at 717, 229 P. 747; State v.Richardson, 56 Idaho 150 at 158, 50 P.2d 1012.)
The recommendation of the jury, while entitled to be considered by the court, is not binding and no prejudicial error results from the court's refusal to follow it. (State v.Farnsworth, 51 Idaho 768 at 781, 10 P.2d 295, 87 A.L.R. 1373.)
We cannot say from the record the trial court abused his discretion in imposing the challenged sentence.
Costs are no part of the penalty, In re Lucas, 17 Idaho 164,104 P. 657; and their imposition, therefore, though added to the penalty exceeded $300.00, was not in excess *Page 504
of the court's jurisdiction. (Sections 19-4022, 19-4043, 19-4044, I.C.A.; State v. McAllister, 48 Idaho 251, 281 P. 7.)
The judgment is therefore affirmed.
Budge, Holden, and Miller, JJ., concur.
Ailshie, C.J., did not sit at the hearing and took no part in the decision.
1 "48-502. Rules of the road — Persons under the influence ofintoxicating liquor or narcotic drugs. — It shall be unlawful and punishable as provided in section 48-558 for any person whether licensed or not who is an habitual user of narcotic drugs or any person who is under the influence of intoxicating liquor or narcotic drugs to drive any vehicle upon any highway within this state."
"48-558. Driving while under the influence of intoxicatingliquor or narcotic drugs — Penalty. — Every person who is convicted of a violation of section 48-502 relating to habitual users of narcotic drugs and driving while under the influence of intoxicating liquor or narcotic drugs shall be punished by imprisonment in the county or municipal jail for not less than thirty days nor more than six months or by fine of not less than $100.00 nor more than $300.00 or by both such fine and imprisonment. On a second or subsequent conviction he shall be imprisoned in the state penitentiary at hard labor for not less than two years and not more than five.
"The commissioner shall revoke the operator's or chauffeur's license of the person so convicted, if any such license has been issued."
2 "19-4044, I.C.A. Judgment against sureties for costs. — If upon the trial in the district court the defendant is convicted, judgment must be rendered against the defendant and his sureties for the costs in both courts, and for any fine imposed by the district court; and if such fine and costs be not paid, execution must be issued thereon against the defendant and his sureties; but the sureties are not liable on any such judgment or execution beyond the amount of their undertaking. If the defendant fails to appear and prosecute his appeal. judgment must be entered by the district court against the defendant and his sureties in the amount of the undertaking." | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1265865/ | 895 P.2d 1329 (1995)
119 N.M. 788
STATE of New Mexico, Plaintiff-Appellant,
v.
Anthony FOULENFONT and Leo Archuleta, Defendants-Appellees.
No. 15787.
Court of Appeals of New Mexico.
March 13, 1995.
Certiorari Granted April 27, 1995.
Tom Udall, Atty. Gen., Jennifer L. Stone, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.
Sammy J. Quintana, Chief Public Defender, Sue A. Herrmann, Asst. Appellate Defender, Santa Fe, for defendants-appellees.
OPINION
PICKARD, Judge.
The State appeals from pretrial orders dismissing charges for burglary and conspiracy to commit burglary. On appeal, we consider whether the district court had authority to dismiss the charges prior to a trial on the merits. We also consider whether the district court properly ruled as a matter of law that a fence does not constitute a "structure" under our burglary statute. We hold that the district court had authority and properly *1330 exercised that authority. Therefore, we affirm.
BACKGROUND
Defendants were each charged with one count of misdemeanor larceny, one count of burglary, and one count of conspiracy to commit burglary. Prior to trial, Defendants moved to dismiss the burglary and conspiracy charges. Defendants argued that the factual predicate underlying the charges, entry of a fenced area, did not fit within the definition of burglary set forth in NMSA 1978, Section 30-16-3(B) (Repl.Pamp.1994). Specifically, they argued in a joint memorandum that a fence is not a "structure" as contemplated by the burglary statute. In its written response and at the motion hearing, the State raised a procedural challenge, arguing that dismissal would be improper under SCRA 1986, 5-601 (Repl.1992) because the motion was not capable of determination without trial on the merits. The State characterized the unauthorized entry as "climbing a `chain link' fence" which, it argued, constituted a "structure" under Section 30-16-3(B). Specifically, the State described the facts as follows:
Defendant[s] [are] accused of making an unauthorized entry into the premises of Repo Ranch in Socorro, New Mexico, and while there committing a larceny. The unauthorized entry was made by climbing a "chain link" fence which encloses the premises of the Repo Ranch. Repo Ranch is engaged in the mobile home sales business, and its inventory of mobile homes is kept within the fence.
The State submitted form orders reflecting the district court's decision at the motion hearing to dismiss the charges. The orders, adopted by the district court, state that no evidence was heard, but again indicate that the factual predicate underlying the charges is the unauthorized entry over a six-to eight-foot chain link fence. It is from these orders that Defendants appeal.
DISCUSSION
A. Procedural Issue
The State argues that dismissal was improper under SCRA 5-601(B), which allows only motions "capable of determination without a trial on the merits" to be raised prior to trial. In support of its argument, the State cites to State v. Mares, 92 N.M. 687, 594 P.2d 347 (Ct.App.), cert. denied, 92 N.M. 675, 593 P.2d 1078 (1979). In Mares, the defendant moved to dismiss an aggravated battery indictment on the ground that he had acted lawfully in his capacity as a peace officer, and therefore the incident did not fit within the statutory definition of the crime. Id. at 688, 594 P.2d at 348. After an evidentiary hearing, the district court found that the defendant had acted lawfully and dismissed the indictment. Id. This Court reversed, concluding that the district court improperly took away from the jury the factual issue of lawfulness. Id. at 689, 594 P.2d at 349. Likewise, in State v. Masters, 99 N.M. 58, 653 P.2d 889 (Ct.App.1982), this Court held that it was improper to dismiss a failure to appear charge on the basis of a factual determination made at the preliminary hearing stage.
We disagree that Mares and Masters require reversal under the circumstances of the present case for two reasons. First, the State never disputed that the burglary charges were predicated on the act of climbing over the Repo Ranch fence. Instead, the State's argument below focused on the legal issue of whether a fence comes within the definition of "structure" in Section 30-16-3(B). Therefore, the district court was never called upon to make the type of factual resolution prohibited under Mares and Masters.
Second, to the extent that Mares and Masters recognized a broader prohibition against a pretrial challenge to material allegations in an indictment or information, we find guidance in State v. Ogden, 118 N.M. 234, 880 P.2d 845, cert. denied, ___ U.S. ___, 115 S. Ct. 336, 130 L. Ed. 2d 294 (1994), where our Supreme Court authorized the use of pretrial SCRA 5-601 hearings to consider death penalty aggravating circumstances. The Court stated:
A defendant who has been notified that the State will seek the death penalty may *1331 move to dismiss an aggravating circumstance before trial. Pretrial rulings on the support of aggravating circumstances can present questions of fact, law, or mixed fact and law, and this will affect the standard of review. When the applicability of an aggravating circumstance presents a question of law capable of determination without trial ... [SCRA 5-601] applies and the district court should rule on the motion consistent therewith. A motion to dismiss an aggravating circumstance that presents a purely legal question should be granted when the district court finds that the aggravating circumstance does not apply as a matter of law.
Ogden, 118 N.M. at 239, 880 P.2d at 850 (footnote omitted).
As applied here, the district court had authority under SCRA 5-601 to consider the purely legal issue raised in Defendants' motion. We reject the State's contention that the district court had to initially conduct an evidentiary hearing to allow introduction of the evidence that the burglary charge was predicated on the unauthorized entry through a fence. As noted above, the State never disputed Defendants' characterization of the factual predicate underlying the charges, and instead engaged the district court in a purely legal argument. The State also declined the district court's invitation to propose additional facts to be included in the record. Accordingly, we believe that under the particular circumstances of this case the State has failed to point out any practical purpose that would have been served by an evidentiary hearing or, for that matter, a trial on the merits. See State v. Portillo, 110 N.M. 135, 137, 793 P.2d 265, 267 (1990) (statutes and rules should be interpreted with logic and common sense); see also SCRA 1986, 5-101(B) (Repl.1992). Dismissal was therefore an appropriate and effective means of promoting judicial efficiency in this case in light of the dispositive issue before the district court. Cf. State v. Hodge, 118 N.M. 410, 416, 882 P.2d 1, 7 (1994) (use of conditional plea agreements appropriate and do not preclude review where issues of law or mixed issues of law and fact can be decided without trial).
B. Burglary Statute
"Burglary consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with the intent to commit any felony or theft therein." Section 30-16-3. We interpret this section by initially identifying the type of harm or evil the legislature intended to prevent. See Ogden, 118 N.M. at 244, 880 P.2d at 855. The State correctly points out that the general purpose of the burglary statute is "to protect possessory rights with respect to structures and conveyances and to define `prohibited space'." State v. Rodriguez, 101 N.M. 192, 194, 679 P.2d 1290, 1292 (Ct.App.), cert. denied, 101 N.M. 189, 679 P.2d 1287 (1984) (citation omitted); see also State v. Sanchez, 105 N.M. 619, 620, 735 P.2d 536, 537 (Ct.App.) (burglary offense is "one against the security of property, and its purpose is to protect possessory rights"), cert. denied, 105 N.M. 618, 735 P.2d 535 (1987). We must therefore examine Section 30-16-3 to see if a fence is the type of "structure" that creates a prohibited space.
Neither the burglary statute nor the Criminal Code provides a definition of "structure." As a result, we turn to the plain and ordinary meaning of the term. See Ogden, 118 N.M. at 243-44, 880 P.2d at 854-55. The State refers us to Black's Law Dictionary 1424 (6th ed. 1990), which defines "structure" as:
Any construction, or any production or piece of work artificially built up or composed of parts joined together in some definite manner. That which is built or constructed; an edifice or building of any kind.
A combination of materials to form a construction for occupancy, use or ornamentation whether installed on, above, or below the surface of a parcel of land.
The State acknowledges, however, that this Court has disapproved of a wholesale *1332 adoption of this and similar commonly used definitions for purposes of construing the breadth of Section 30-16-3. In State v. Bybee, 109 N.M. 44, 781 P.2d 316 (Ct.App.1989), we held that a soft drink vending machine does not come within the purview of the statute, notwithstanding the fact that it technically fell within the plain meaning of "structure." Id. at 46, 781 P.2d at 318. Reviewing the history of the statute, we noted that the legislature deleted the common law requirement of "breaking" and expanded the crime to encompass places and structures other than a place of habitation or occupation. Id. at 45, 781 P.2d at 317. We applied the statutory construction rule of "ejusdem generis" in our effort to define the scope of the statutory expansion. Id. at 46, 781 P.2d at 318. We described that rule as "requiring that where general words follow an enumeration of persons or things of a particular and specific meaning, the general words are not construed in their widest extent but are instead construed as applying to persons or things of the same kind or class as those specifically mentioned." Id. Noting that criminal statutes are to be strictly interpreted, we concluded that the legislature did not intend to protect space within every physical structure created. Id.
Applying the Bybee analysis to the present case, we conclude that the scope of the burglary statute as set forth under the "or other structure" language does not encompass the facts as alleged here. We disagree with the State that our holding is in conflict with pre-Bybee cases adopting a literal interpretation of this language. See State v. Gonzales, 78 N.M. 218, 430 P.2d 376 (1967); Sanchez, 105 N.M. 619, 735 P.2d 536. Gonzales involved entry into a food store, and Sanchez involved entry into a separately secured portion of a store and entry into a separately occupied office in a church. As we interpret these cases, ejusdem generis was rejected insofar as the defendants were arguing that the "other structure" had to be akin to a dwelling or place of habitation and did not include buildings used for commercial or other purposes. It seemed clear in Gonzales and Sanchez that such an argument would undermine the legislative purpose of broadening the burglary statute beyond its common law origins. Moreover, the structures involved in those cases fit within the plain meaning of the statute.
The State notes that a number of courts in other jurisdictions have interpreted similar statutory language and have concluded that fences fall within the definition of "other structure." See Townsend v. State, 308 Ark. 266, 824 S.W.2d 821, 822 (1992); People v. Moyer, 635 P.2d 553, 556 (Colo. 1981) (en banc); Joy v. State, 460 N.E.2d 551, 558 (Ind.Ct.App.1984); Stanley v. State, 512 P.2d 829, 832 (Okla.Crim.App.1973); State v. Roadhs, 71 Wash.2d 705, 430 P.2d 586, 588 (1967). We believe, however, that these cases apply the type of unrestricted "plain meaning" analysis rejected in Bybee. A strict construction of our burglary statute requires a different result. See Santillanes v. State, 115 N.M. 215, 221, 849 P.2d 358, 364 (1993) (statutes defining criminal conduct must be strictly construed). We therefore interpret the phrase "other structure" in Section 30-16-3 to require an enclosure similar to a vehicle, watercraft, aircraft, or dwelling. See State v. Gamble, 56 N.C.App. 55, 286 S.E.2d 804, 805 (1982) (definition of "building" which included the phrase "dwelling ... and any other structure designed to house or secure within it any activity or property" historically required the structure to have one or more walls and a roof). Our interpretation is supported by the fact that, unlike a fence, all of the enumerated objects in the statute are capable of completely confining people and their property. To the extent that Rodriguez, 101 N.M. 192, 679 P.2d 1290, allowed the burglary statute to apply to unlawful entry into the bed of a pickup truck, we believe that case is distinguishable. Vehicles are specifically enumerated in the statute, and the bed of the pickup truck serves the same function as the enclosed space in a car.
Finally, we disagree with the State's contention that businesses such as Repo *1333 Ranch will unfairly be singled out for exclusion under the statute because they operate in an outdoor setting. The burglary statute would be applicable if Defendants had made an unauthorized entry into an office or a mobile home at Repo Ranch. Where the unauthorized entry merely consists of climbing over a fence, businesses and other open property are protected under our criminal trespass statute. NMSA 1978, § 30-14-1 (Repl.Pamp.1994).
CONCLUSION
For the reasons stated above, we affirm.
IT IS SO ORDERED.
FLORES and BOSSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3866812/ | This action is trespass on the case for interference with a right of way.
The cause of action alleged is the erection of a fence by Peleg A. Walton, and the continuance of the fence and erection of other impediments by Frederick E. Brayton, who bought the land of Walton. Walton having died, the action is brought against his administrator and Brayton. The defendants severally demurred, on the ground that they were improperly joined; and the administrator demurred also on the ground that there is no allegation that the claim was presented to him according to law before suit was brought. The District Court sustained the demurrers, and the plaintiff has excepted to its ruling.
We think the demurrers were properly sustained, and the exceptions should be overruled. The present owner is not responsible for the damages suffered by the plaintiff before he owned the land, and the intestate is not responsible for damages caused by the action of the present owner unless he conveyed the land with covenants of warranty, which the *Page 234
declaration does not allege. Wood Nuis. § 828; Lohmiller vWater-Power Co., 51 Wisc. 684-689.
The claim against the intestate for the erection of the fence survived under the statute, but it should have been presented to his administrator before suit. The declaration may be amended so as to set forth the cause of action, either joint or several, on which the plaintiff intends to rely.
Exceptions overruled, and cause remanded to the Eighth District Court for further proceedings. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1265886/ | 595 S.E.2d 647 (2004)
265 Ga. App. 799
WAUGH et al.
v.
WAUGH.
Jones,
v.
Waugh.
Nos. A03A1890, A03A1891.
Court of Appeals of Georgia.
February 24, 2004.
*648 Willis, McKenzie & Long, Dewey R. McKenzie, Jr., Lagrange, for appellants.
Kirby & Roberts, L. Jack Kirby, Lagrange, for appellee.
SMITH, Chief Judge.
In these two appeals, Sara Alene Waugh (Alene), the wife of Charles Woodrow Waugh, Jr. (Charlie), and their two daughters, Gail Stone and Jewel Moore (Case No. A03A1890), and Joseph W. Jones, the administrator of Charlie's estate (Case No. A03A1891), challenge the judgment entered on jury responses to special interrogatories in an action brought by Charles Coymac Waugh (Mack), Charlie and Alene's son. The jury found that Charlie had an equal partnership with Mack in a family business, entitling Mack to Charlie's share of the business. Over the years, Charlie had used the profits from the business to purchase certificates of deposit in his name, and the jury also awarded Mack 20 percent of these profits. Jones, Alene, Stone, and Moore all claim that the evidence presented at trial does not support the jury's responses to the interrogatories and that the trial court should have granted their motion for judgment notwithstanding the verdict as to these issues. Alene, Stone, and Moore also contend that no evidence supported the jury's conclusion that Stone and Moore interfered with Lamar Wingo, the guardian ad litem appointed for Charlie, or that they prevented the performance of any of Charlie's lawful obligations.[1] We find that evidence exists in the record to support all the jury interrogatory responses, and we find that the trial court correctly denied the motion for judgment n.o.v.
*649 "On appeal, this Court must concentrate on the evidence which supports the verdict, not that evidence which undermines it. [Cit.]" Moghangard v. Keshavariz, 239 Ga.App. 255, 257, 520 S.E.2d 59 (1999). So viewed, the evidence presented at trial showed that Charlie and Mack both worked in the family business, an auto parts junkyard begun by Charlie. Mack started working with Charlie in the business when he was a child, and he began working in the business full time when he left school at age 16. He was paid only what he needed "to get me by." Legal title to the business property was maintained in Charlie's name, but Charlie and Mack understood that they were partners and that eventually the business would belong to Mack. Mack oversaw many financial aspects of the business, paying business license fees, ad valorem taxes on the inventory, real estate taxes, and sales taxes. In addition, he took care of some of his parents' personal needs. He installed central heat and air in his parents' home and paid their utility bills. He was responsible for making bank deposits from the business proceeds and purchasing certificates of deposit, although these were purchased in Charlie's name. Alene and Mack's sisters were not aware that over time, these time deposits had grown to more than $300,000.
Because of Charlie's advancing age, Mack's sisters consulted an attorney in 1994 about preparing a will for Charlie. Mack agreed that Charlie needed a will. In connection with the will preparation, Mack told his mother and his sisters about the large sum of money in certificates of deposit, and Charlie became angry with Mack. The lawyer eventually learned that Charlie "wasn't very interested in making a will," and this project was abandoned. Later the same year, Charlie quitclaimed to Alene a one-half undivided interest in that portion of his land on which the business is located, and Charlie and Alene then conveyed that property to Mack.
In 1995, Charlie's mental health became poorer, and he could no longer make responsible decisions. He had become completely incapacitated by September 1996, when Alene, Stone, and Moore, using a faulty tax plat from the Troup County Tax Assessor's office that they knew was erroneous, convinced Charlie that Mack had cheated him. Mack was thereafter ordered from the property, and he eventually filed this action.
1. In both appeals, appellants contend in two enumerations of error that no evidence was presented from which the jury could have found the existence of a partnership or an enforceable agreement between Charlie and Mack. We do not agree.
(a) Evidence was presented showing that Mack and his father worked in the business together for almost 40 years. Mack testified that he and his father understood they were partners, which meant that he owned "half" of the business. He further understood that "when something happened to him [(Charlie)], he got tired fooling with it or whatever, his part of the junkyard would be mine." Several other witnesses testified that they had known and done business with Charlie and Mack for a number of years and that they understood that the father and son were partners, that Charlie told them the business belonged to both of them, that he and Mack pooled their profits and deposited them in the bank, and that Charlie intended to turn everything over to Mack. Mack's former wife testified that Alene persuaded Mack to go into the business by telling him it would some day be his. This evidence was sufficient to support the jury's finding that Charlie and Mack had a partnership.
(b) Appellants contend that no evidence was presented from which the jury could find that an enforceable contract existed between Charlie and Mack because even if an agreement existed, it was too "indefinite and uncertain in its alleged material provisions." We find no merit in this argument.
We have determined that the jury correctly concluded that a partnership existed between Charlie and Mack. "A partnership is an association of two or more persons to carry on as co-owners a business for profit. A partnership results from a contract, either express or implied." (Citations and punctuation omitted.) Clark v. Schwartz, 210 Ga.App. 678, 679, 436 S.E.2d 759 (1993). Mack testified that his father had already given him a one-half interest in the business, *650 thereby partially executing the contract that resulted in their partnership. The jury concluded that under that contract, it was further understood between Charlie and Mack that when Charlie became unable to continue in the business, Mack would take over Charlie's half as well. We affirmed this decision in Division 1(a).
The jury also concluded that Mack was entitled to 20 percent of the certificates of deposit, which constituted his share of the past proceeds of the business. Appellants argue that no evidence was presented upon which the jury could have based this conclusion and that this term of the contract was therefore too indefinite to be enforceable. "To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate." OCGA § 13-3-1. The contract at issue here meets those requirements.
Contrary to appellants' argument, it is only when the indefiniteness of the subject matter is "so extreme as not to present anything upon which the contract may operate in a definite manner" that the contract is rendered void. (Citation and punctuation omitted.) Lemming v. Morgan, 228 Ga.App. 763, 764-765(1), 492 S.E.2d 742 (1997). Here, Mack testified that he "had the final say on any money that was spent out of" the proceeds of the business, other than the funds Charlie took out to live on, and that Charlie trusted him to "see that the money was used right." Charlie trusted Mack to handle the accumulated profit appropriately, and Mack never took the position that he was entitled to all of the certificates. Given that the interests of five persons were to be looked after by Mack in his stewardship of these proceeds, the jury had some evidence from which to conclude that Mack was entitled to one-fifth, or twenty percent, of the certificates of deposit. This evidence is not overwhelming, but although "the evidence in favor of the plaintiff in the lower court is weak, it is sufficient to support the finding of the jury, which has the approval of the trial judge; and it can not be said that he abused his discretion in overruling the motion for [judgment n.o.v. or] a new trial." Short v. Cofer, 161 Ga. 587(4), 131 S.E. 362 (1926). This enumeration furnishes no ground for reversal.
2. We also cannot agree with the appellants' contentions that the verdict is "too vague, uncertain, and indefinite to be capable of execution" and that it is "both inconsistent and contradictory." The "inconsistency" apparently referred to by appellants in this case is in the portion of the special interrogatory form requiring the jury to list the partnership's assets on blank lines. The jury filled in the form, and in one entry listed "buildings & contents (except for personal property of Charlie & Alene Waugh)." Appellants maintain that this listing is "nonsensical." But in the context of the evidence presented, it is clear that the jury was referring to personal household property belonging to Charlie and Alene, which the evidence at trial showed Mack had allowed them to store in one of the metal buildings he erected on the junkyard's real property. "The verdict in this case is not too vague and uncertain to be enforced. Verdicts are to be given a reasonable intendment, and are not to be avoided unless from necessity." Short, supra at 587(1), 131 S.E. 362.
3. The jury found that Stone and Moore maliciously interfered with the contract between Charlie and Mack. In Case No. A03A1890, Alene, Stone, and Moore also maintain that the trial court erred in denying their motion for judgment n.o.v. because no evidence was presented from which the jury could have reached this conclusion. Again, we do not agree.
To prevail on a claim of tortious interference, Mack was required to show an independent, wrongful act of interference by strangers to the contract, a malicious intent to injure, and damage resulting from the interference. See, e.g., Barnwell v. Barnett & Co., 222 Ga.App. 694, 695(1), 476 S.E.2d 1 (1996). The evidence presented at trial authorized the jury to find that Stone and Moore, who were not parties to the contract between Charlie and Mack, acted in concert to prevent Charlie from carrying out the terms of his agreement with Mack by intentionally *651 using a tax plat they knew was erroneous to mislead Charlie into believing that Mack had cheated him out of some property. Their deceptive scheme resulted in Mack's filing this lawsuit, with its concomitant expenses, to effectuate the terms of the contract. This evidence was sufficient to authorize the jury to find that Stone and Moore tortiously interfered with the contract, and the trial court did not err in denying Stone and Moore's motion for judgment n.o.v. as to this issue.
Judgment affirmed.
RUFFIN, P.J., and MILLER, J., concur.
NOTES
[1] We note that Mack originally brought the suit against his father, mother, and two sisters. Because all parties agreed that Charlie was incompetent, Wingo was named his guardian ad litem. Charlie died between the trial and the expiration of the period for appeal, and Jones was appointed administrator of Charlie's estate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2832633/ | IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
JON RISCHER, GREG RISCHER, and )
BRAD RISCHER, )
)
Respondents, )
WD78149
)
v. )
OPINION FILED:
)
September 1, 2015
)
PATRICIA SUE HELZER, )
)
Appellant. )
Appeal from the Circuit Court of Nodaway County, Missouri
The Honorable Roger M. Prokes, Judge
Before Division Three: Karen King Mitchell, Presiding Judge, and
Lisa White Hardwick and Anthony Rex Gabbert, Judges
Patricia Helzer appeals the trial court’s determination that her agreement to turn over any
interest in her former husband’s (“Father”) pension benefits to his sons from his first marriage
was enforceable. We affirm.
Background
Father worked for the State of Missouri, as a professor at Northwest Missouri State
University. Father retired from the University in the early 1990s, following the death of his first
wife, and began collecting benefits from the Missouri State Employees Retirement System
(“MOSERS”). Several years later, in 1997, Father married Helzer. Father identified Helzer as
the sole beneficiary for any survivor benefits from the MOSERS plan. Four years later, in 2001,
Father and Helzer separated and filed for dissolution of marriage.
Father and Helzer entered into a separation agreement, in which all of the parties’ assets
were divided. As to Father’s pension benefits, the separation agreement provided that, in the
event Father died before Helzer, she agreed to set up a bank account in the name of Father’s
three sons: Jon, Brad and Greg Rischer (collectively “the Rischers”). The agreement further
required Helzer to place all MOSERS benefits she received as Father’s beneficiary into the bank
account. One of the sons agreed to pay to Helzer an amount equal to any taxes owed on the
MOSERS benefits. Father and Helzer filed the separation agreement with the circuit court
(“dissolution court”) and asked the court to approve it. The parties agree that, following a
hearing, the dissolution court found that the separation agreement was not unconscionable and
incorporated it into the court’s dissolution decree. The court dissolved Father and Helzer’s
marriage on September 26, 2001. Neither party appealed the dissolution judgment.
Father passed away on April 5, 2013, and the following month, Helzer began receiving
MOSERS survivor benefits of approximately $2,500 per month. When Helzer refused to comply
with the terms of the separation agreement and judgment regarding the MOSERS benefits, the
Rischers filed a two-count petition seeking specific performance of the separation agreement and
dissolution judgment, or, in the alternative, a constructive trust requiring Helzer to deposit a sum
equal to the amount of past and future MOSERS benefit payments into a bank account in the
name of the Rischers. Helzer raised a number of affirmative defenses, including that the
separation agreement was unenforceable in that it was contrary to MOSERS provisions and void
2
as a matter of law. The circuit court entered a judgment holding that the agreement was
enforceable and ordering specific performance. Helzer timely appealed.
Standard of Review
Our review in a judge-tried civil case is governed by Murphy v. Carron, 536 S.W.2d 30
(Mo. banc 1976). “[T]he . . . judgment of the trial court will be sustained by the appellate court
unless there is no substantial evidence to support it, unless it is against the weight of the
evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Id. at
32. “We defer to the trial court’s determinations regarding witness credibility and view the
evidence and inferences drawn therefrom in the light most favorable to the judgment.” Story v.
Story, 452 S.W.3d 253, 254 (Mo. App. E.D. 2015).
Analysis
On appeal, Helzer claims that the circuit court committed reversible error in that: (1) the
separation agreement is invalid and unenforceable because Missouri statutes do not allow the
transfer of MOSERS survivor benefits and because the transfer of benefits is against public
policy; and (2) the trial court lacked authority to enforce such a plan. Rejecting both claims, we
affirm.
A. Helzer’s claims that the separation agreement’s treatment of MOSERS survivor
benefits is contrary to law and public policy are barred by the doctrine of res judicata.
Helzer argues that the separation agreement’s treatment of MOSERS benefits violates
two separate statutes, § 104.540 and § 434.301,1 and is contrary to public policy, rendering that
provision of the agreement unenforceable. These claims are barred by the doctrine of
res judicata.
1
All statutory references are to the Revised Statutes of Missouri 2000, unless otherwise noted.
3
Under § 104.540.2, “[a]ny annuity, benefits, funds, property, or rights created by, or
accruing or paid to, any person under” a MOSERS benefit such as the one that Father earned,
“shall not be subject to execution, garnishment, attachment, writ of sequestration, or any other
process or claim whatsoever, and shall be unassignable,” outside of exceptions not applicable
here. Helzer claims that the agreement to pay the pension funds to the Rischers constitutes an
“assignment,” rendering the separation agreement unlawful.
Section 434.301, a statute enacted in 2014 in HB 1217, 2014 Mo. Legis. Serv. 93 (West),
provides that:
1. The right of any person to a plan benefit shall not be transferable or
assignable, at law or in equity, and none of the moneys paid or payable or rights
existing under a plan shall be subject to execution, levy, attachment, garnishment,
or other legal process. . . .
2. A pension assignee shall not use any device, scheme, transfer, or other
artifice to evade the applicability and prohibition of this section, including the
deposit of such plan benefits into a joint account with a pension assignee or the
authorization to a pension assignee under a power of attorney or other instrument
or document to access an account or otherwise obtain funds from an account to
which plan benefits have been deposited.
Helzer argues that the separation agreement mandates the transfer or assignment of benefit funds
to a non-benefit recipient and that it is the type of “scheme” § 434.301 prohibits. Helzer also
argues that the separation agreement is null, void, and unenforceable as a matter of law because
its assignment of benefits is against public policy.
The parties agree that the 2001 dissolution decree found the separation agreement not to
be unconscionable, approved the agreement, and incorporated its terms into the court’s
judgment. Helzer’s claims regarding enforceability disregard settled Missouri law that “a
judgment rendered by a court having jurisdiction of the parties and the subject matter, unless
reversed or annulled in some proper proceeding, is not open to contradiction or impeachment in
4
respect to its validity or binding effect in any collateral proceeding.” La Presto v. La Presto, 285
S.W.2d 568, 570 (Mo. 1955); In re Marriage of Cornella, 335 S.W.3d 545, 556 (Mo. App. S.D.
2011) (“a judgment rendered by a court with jurisdiction over the parties and subject matter is
not open to collateral attack with respect to its validity or the conclusiveness of the matters
adjudicated”).
“Res judicata, or claim preclusion, . . . precludes the parties or privities from later
bringing claims arising from the same set of facts that could or should have been pursued in the
prior action,” and “unequivocally applies to a defense that a defendant failed to raise in the prior
action.” Xiaoyan Gu v. Da Hua Hu, 447 S.W.3d 680, 687, 688 (Mo. App. E.D. 2014). “The
doctrine of res judicata applies to dissolution actions as to all property addressed within the
original decree.” In re Marriage of Rolfes, 187 S.W.3d 355, 357 (Mo. App. S.D. 2006). “When
the court finds the separation agreement to be conscionable, the terms of a separation agreement
are binding on the trial court except as they relate to the care and support of children.” Id.;
§ 452.325.2. “With those exceptions, the court does not retain the power to modify the terms of
the separation agreement, which is incorporated into a judgment and decree of dissolution.” Id.
A trial court’s final order “‘as it affects distribution of marital property shall be a final order not
subject to modification.’” Kolar v. Kolar, 114 S.W.3d 440, 442 (Mo. App. W.D. 2003) (quoting
§ 452.330.5); § 452.360.2 (“The court’s judgment of dissolution of marriage or legal separation
as it affects distribution of marital property shall be a final judgment not subject to
modification.”).
Here, the parties agree that the dissolution court entered judgment approving Father and
Helzer’s separation agreement on September 26, 2001. The argument that the separation
agreement’s treatment of MOSERS survivor benefits was contrary to law and public policy was
5
readily apparent at the time that the parties asked the court to approve it. Indeed, Helzer points
to Father’s testimony from the 2001 hearing acknowledging on the record his understanding that
“the State of Missouri will not allow you . . . to remove a spouse’s name from the survivor’s
benefits.” If the agreement, as incorporated into the judgment, was invalid, Helzer’s “remedy
[was] by appeal,” not subsequent collateral attack on a specific provision of the separation
agreement. Cornella, 335 S.W.3d at 556; Rolfes, 187 S.W.3d at 358 (where judgment is final
and not appealed, no provision provides for relief from part of a judgment). Once Helzer chose
not to appeal, “the judgment was final and res judicata to all property with which it dealt.” Id. at
357.
In addition, as noted previously, § 434.301 was enacted years after the judgment of
dissolution was entered. Helzer cites no authority for the proposition that a statute enacted after
a judgment was entered can invalidate the earlier judgment. “[A]n appellant is required to
provide relevant and available legal authority in the argument or explain why such authority is
not available.” Moseley v. Grundy Cty. Dist. R-V Sch., 319 S.W.3d 510, 513 (Mo. App. E.D.
2010).
Rather, ignoring the res judicata effect of the dissolution court’s approval of the
separation agreement, Helzer focuses on the bar against retrospective laws, arguing that the bar
on retrospective laws is not applicable here because the Rischers did not have any “vested rights”
in Father’s pension at the time that the law was enacted. In support of this argument, Helzer
points out that, had she passed away before Father, the Rischers would not have been entitled to
any survivor benefits. But Helzer’s argument fails for two reasons. First, “[t]he law bars the
retrospective application of the laws to cases that have achieved final resolution.” Strait v.
Treasurer of the State of Mo., 257 S.W.3d 600, 602 (Mo. banc 2008). Second, even if there had
6
been no judgment approving and incorporating the separation agreement, Helzer’s vested-rights
argument would fail because it ignores the fact that Father died in 2013, and § 434.301 was not
enacted until the following year. Thus, the Rischers’ rights under the agreement were vested
before § 434.301 took effect.2
As noted supra, a judgment may be subject to collateral attack if it is void because it was
rendered by a court lacking jurisdiction over the parties or the subject matter. La Presto, 258
S.W.2d at 570; Cornella, 335 S.W.3d at 556. While Helzer does not argue that the dissolution
court lacked jurisdiction to enter a judgment addressing Father’s MOSERS benefits, she does
cite Nohr v. LeFaivre, 201 S.W.3d 72, 73-74 (Mo. App. E.D. 2006). In Nohr, the Eastern
District held that the court could “reconsider the division of . . . pension” benefits, years after the
original decree became final, where the court rendering the decree lacked statutory authority to
divide an interest in the pension. Id. The court determined that res judicata did not apply to the
initial dissolution order because the dissolution court was “without jurisdiction” to divide the
pension. Id. at 73 n.3. We believe this to be an example of a case decided prior to J.C.W. ex rel.
Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), in which the court “confused the concept
of a circuit court’s jurisdiction—a matter determined under Missouri’s constitution—with the
separate issue of the circuit court’s statutory or common law authority to grant relief in a
particular case.” McCracken v. Wal-Mart Stores E., L.P., 298 S.W.3d 473, 477 (Mo. banc
2009); Webb, 275 S.W.3d at 254 (“Because the authority of a court to render judgment in a
particular case is, in actuality, the definition of subject matter jurisdiction, there is no
constitutional basis” to treat a statutory bar to a court granting relief as affecting the court’s
subject matter jurisdiction.). Even if the dissolution court lacked authority to enter the
2
Helzer has never argued or suggested that the Rischers lack privity with Father. Generally, the children of
a party to a separation agreement are entitled to sue to enforce the agreement. See In re Estate of Remmele, 853
S.W.2d 476, 481-82 (Mo. App. W.D. 1993).
7
dissolution decree addressing MOSERS pension benefits—a conclusion we need not and do not
reach—the dissolution court would not lack jurisdiction.
Res judicata applies and bars Helzer’s claims based upon §§ 104.540 and 434.301 and
public policy.
B. The circuit court did not lack authority to address the enforceability of the
separation agreement and judgment of dissolution.
Helzer argues that the Rischers failed to exhaust their administrative remedies with the
MOSERS Board of Trustees, and, as a result, the circuit court lacked the authority to address the
Rischers’ action to enforce the separation agreement or dissolution judgment as it relates to
MOSERS benefits. But “the obligation to exhaust administrative remedies applies only to
‘contested cases.’ A ‘contested case’ is defined by section 536.010(4) as ‘a proceeding before an
agency in which legal rights, duties or privileges of specified parties are required by law to be
determined after hearing.’” Coleman v. Mo. Sec’y of State, 313 S.W.3d 148, 154 n.5 (Mo. App.
W.D. 2010) (emphasis added). Helzer points to no law either requiring MOSERS to hold a
hearing or providing for any administrative remedies that the Rischers failed to exhaust.3
Helzer also argues that the circuit court lacked authority to enforce the separation
agreement because it is a void contract that the courts will not aid in enforcing. Helzer cites the
3
While Helzer’s first point relied on alleges that the circuit court lacked “authority” to address the
enforceability of the agreement because of the alleged failure to exhaust administrative remedies, in the argument
portion of her brief she argues that the circuit court lacked “jurisdiction.” While we generally will address only
those issues raised in a point relied on, Kabir v. Mo. Dep’t of Soc. Servs., 845 S.W.2d 102, 103 (Mo. App. W.D.
1993), here we note that:
while it is true that the failure to exhaust administrative remedies has historically been
characterized as an issue of subject matter jurisdiction, the Missouri Supreme Court clarified in
Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), and McCracken v. Wal-Mart Stores E.,
L.P., 298 S.W.3d 473 (Mo. banc 2009), that Missouri trial courts have subject matter jurisdiction
over all cases and matters, civil and criminal. Mo. Const. art. V, sec. 14; McCracken, 298 S.W.3d
at 477. The issue is not one of subject matter jurisdiction, but rather whether there is a bar to the
trial court’s authority to hear a case. See Edoho v. Board of Curators of Lincoln Univ., 344
S.W.3d 794, 797-98 (Mo. App. W.D. 2011).
Whithaus v. Curators of Univ. of Mo., 347 S.W.3d 102, 104 (Mo. App. W.D. 2011).
8
general rule that where such a void “contract was fully executed on both sides . . . it is a
well-established general rule that neither party will be aided in recovering that which has been
parted with under the agreement. The courts will leave such parties where they have placed
themselves.” Murray v. Murray, 293 S.W.2d 436, 441 (Mo. 1956). Even assuming that a
portion of the settlement agreement is contrary to law, Helzer misunderstands the cases and
doctrine upon which she relies.
It is true “‘that neither party to an [illegal] agreement that has been executed on both
sides will be aided in recovering what has been parted with under the agreement.’” Interstate
Agri Servs., Inc. v. Bank Midwest, N.A., 982 S.W.2d 796, 800 (Mo. App. W.D. 1998) (quoting
Gardine v. Cottey, 230 S.W.2d 731, 740 (Mo. banc 1950)). In Murray, upon which Helzer
relies, for example, the parties entered into “an agreement designed to bring about and promote a
divorce,” which the court held “the public policy of this state requires [] be adjudged void.” 293
S.W.2d at 441. In other words, the entire agreement, by nature of its subject matter, was void.
When the “subject or purpose of a contract concerns the doing of an illegal act or is against the
public policy of the state, the contract will not be enforced by the courts.” Interstate Agri Servs.,
Inc., 982 S.W.2d at 800.
The subject matter of the separation agreement was merely to come to an equitable
agreement as to the distribution of Father and Helzer’s assets in their divorce proceeding, which
the trial court approved. There is nothing unlawful or against public policy about such
agreements. Rather, they are specifically allowed by statute. § 452.325. Helzer points us to no
authority implying otherwise.
In addition, Helzer’s argument that the circuit court lacked authority to enforce the
separation agreement because the separation agreement was void, ignores the fact that the
9
agreement was approved by, and incorporated into, the previous judgment. For the reasons
discussed supra, the dissolution court’s judgment is final and is not subject to collateral attack.
There is no basis to hold that the circuit court lacked authority to respect the dissolution court’s
judgment. To hold otherwise would create a new mechanism by which a dissatisfied party could
collaterally attack a judgment that is otherwise protected by the doctrine of res judicata.
Helzer’s points are denied.
Conclusion
Because Helzer’s claims regarding the separation agreement’s treatment of MOSERS
survivor benefits are barred by the doctrine of res judicata and the trial court has the authority to
enforce the agreement, the trial court’s judgment is affirmed.
Karen King Mitchell, Presiding Judge
Lisa White Hardwick and Anthony Rex Gabbert, Judges, concur.
10 | 01-03-2023 | 09-01-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3991890/ | I dissent for the reasons stated in the dissenting opinions inCulliton v. Chase, 174 Wn. 363, 25 P.2d 81, and Jensen v.Henneford, ante p. 209, 53 P.2d 607. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3866829/ | The court is of opinion that the petition must be denied. InCronshaw v. Cronshaw, 21 R.I. 54, it is held that the statute, Gen. Laws, cap. 251, § 3, in the part relating to cases in Probate Courts applies only to those cases in which some attempt, at least, has been made to take an appeal. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4554179/ | C-Track E-Filing
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https://www.courtlistener.com/api/rest/v3/opinions/153168/ | 81 F.3d 173
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
UNITED STATES of America, Plaintiff-Appellee,v.Wing Cheung LAU, Defendant-Appellant.
No. 95-5108.
United States Court of Appeals, Tenth Circuit.
March 27, 1996.
ORDER AND JUDGMENT*
Before ANDERSON, McKAY, and MURPHY, Circuit Judges.
1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
INTRODUCTION
2
Defendant/Appellant Wing Cheung Lau was convicted of Conspiracy under 18 U.S.C. § 371; Transporting Counterfeit Credit Cards in Interstate Commerce and Aiding and Abetting, under 15 U.S.C. § 1644(b) and 18 U.S.C. § 2; and two counts of Use of Counterfeit Access Devices and Aiding and Abetting, under 18 U.S.C. §§ 1029(a)(1) and 2. Lau's sole argument on appeal is that he was arrested without probable cause and therefore the district court erred by not granting his motion to suppress evidence discovered incident to the arrest. We affirm.
I.
3
On August 17, 1994, three Asian males made and attempted to make credit card purchases in Moody's Jewelry Store in Tulsa, Oklahoma. Lau entered the store briefly, but made no purchases. The three making purchases were filmed on the store's video surveillance camera; Lau was not. Lau was remembered by store employees, however, as wearing a distinctive "abstract colored light shirt." Appellant's App. at 10. As Lau and his partners began to drive away in a blue minivan, the store employees recorded the van's license plate number because of the suspicious nature of the purchases. See id. at 11. Tulsa Police Detective Andrew Frank was then contacted with the information.
4
Frank went immediately to Moody's, took statements from witnesses, watched the surveillance videotape, and learned through the United States Automobile Association Credit Card Center that at least one of the credit cards proffered by the suspects was counterfeit. Id. at 8-10; Appellee's Br. at 3. An employee advised Frank that a suspect had been overheard saying they needed to catch a flight. Acting on this information, Frank decided to check Promenade Shopping Mall ("Promenade"), en route to the airport, on a hunch that the suspects may be attempting to defraud another jewelry store. Appellant's App. at 11, 15.
5
He located the van in the Promenade parking lot and called a security guard for assistance. As the suspects were leaving the mall and entering the van, the security guard pulled his vehicle around to the front of the van and Frank moved his vehicle to block its rear. Id. at 13. Frank then detained the suspects until uniformed officers took them into custody. Subsequently, the suspects were positively identified as having made credit card purchases by employees from both Reeds Jewelers, the jewelry store at Promenade, and Moody's Jewelry. Id. at 15. The Reeds employee also informed Frank that Lau had assisted in the purchases made at Reeds, but had made no actual purchases himself. Id. at 21-22.
6
Officers then searched the suspects and seized two counterfeit California driver's licenses, counterfeit social security cards, counterfeit credit cards, receipts from other purchases, personal papers, and two hotel keys. Id. at 17; Presentence Investigation Report, R. Vol. II at 7. Lau had a hotel key, but was not carrying any forged or counterfeit credit cards. Appellant's App. at 23; R. Vol. II at 7. On August 18, 1994, two U.S. Secret Service Agents obtained search warrants for the two hotel rooms. The agents recovered, inter alia, merchandise from Saks Fifth Avenue purchased for $4,797.90, United Airline tickets worth $996.00, the counterfeit credit card used to purchase the airline tickets, and two other credit cards. R. Vol. II at 7.
7
On the basis of this information, Wing Lau and his three partners were named in a six-count Superseding Indictment for the transportation and use of counterfeit and fictitious credit cards in interstate commerce. On December 22, 1994, the court declared a mistrial with respect to Lau, as the jury was unable to reach a unanimous verdict in his case. On January 25, 1995, a second jury trial ended with guilty verdicts on four counts of the Superseding Indictment.
II.
8
Lau contends that because Frank could not identify any crime Lau committed, Frank lacked probable cause to arrest him when he was first detained. Accordingly, if Lau's arrest was illegal, any evidence seized in the searches incident to that arrest is inadmissible against him. See Wong Sun v. United States, 371 U.S. 471, 485 (1963). We review a district court's denial of a motion to suppress evidence under a clearly erroneous standard and consider the evidence in the light most favorable to the district court's ruling. United States v. Ortiz, 63 F.3d 952, 954 (10th Cir.1995); United States v. Nicholson, 983 F.2d 983, 987 (10th Cir.1993). ' "[T]he ultimate determination of Fourth Amendment reasonableness is a conclusion of law which we review de novo." ' United States v. Zapata, 997 F.2d 751, 756 (10th Cir.1993) (quoting United States v. Allen, 986 F.2d 1354, 1356 (10th Cir.1993)).
9
We conclude under the circumstances of this case that Frank had probable cause to arrest Lau. See Henry v. United States, 361 U.S. 98, 102 (1959) ("Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed."). Frank specializes in credit card fraud, is President of the Oklahoma Chapter of the International Association of Credit Card Investigators, and is a veteran police officer of twenty-one years. Appellant's App. at 7, 12, 19, 26. Frank therefore had a great deal of experience supporting his actions, particularly in the context of credit card fraud operations. In the instant case, he knew that Lau had been in Moody's with others making purchases with counterfeit credit cards and could identify Lau by his distinctive shirt. Id. at 22, 25-26. Thus, when Frank arrested the defendants, he knew that Lau was with a group who was committing crimes, and suspected that this group had just "hit" another store on their way out of state. Based on the above information, it is clear that Frank possessed sufficient particularized information on Lau, as well as the others, to give him probable cause to arrest all four suspects. The district court correctly denied Lau's motion to suppress.
10
AFFIRMED.
*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3 | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1770710/ | 625 S.W.2d 835 (1981)
Curtis Ell WHITE, Appellant,
v.
The STATE of Texas, Appellee.
No. B14-81-224-CR.
Court of Appeals of Texas, Houston (14th Dist.).
December 17, 1981.
*836 Don L. Hendrix, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., Houston, for appellee.
Before PAUL PRESSLER, MURPHY and MORSE, JJ.
MURPHY, Justice.
Curtis Ell White (appellant) appeals from a jury conviction for aggravated robbery on his plea of not guilty. The jury assessed punishment at 50 years confinement in the Texas Department of Corrections. The questions in contention are did the trial court err in denying appellant's motion to suppress evidence obtained at a pre-trial lineup and whether the court erred in admitting evidence of an extraneous offense at the guilt-innocence stage of trial. We affirm.
On January 3, 1980, appellant was indicted for aggravated robbery of Mr. and Mrs. Lee M. Powers on October 31, 1979 and was later convicted for that offense with the conviction enhanced by one prior felony conviction. Officer H. M. White of the Houston Police Department testified at the pre-trial hearing that he conducted a pre-trial lineup at the Houston Police Station on December 15, 1979. The official record of the Houston Police Department indicated appellant had been charged with forgery on December 14, 1979. Appellant was not represented by counsel at the pre-trial lineup. Both the Powers identified appellant at the pre-trial hearing as the person who robbed them, although Mrs. Powers' identification was tentative. The trial court overruled appellant's motion to suppress the pre-trial identification evidence. Both Powers again identified appellant at the trial before the jury. Over Appellant's objection the trial court admitted evidence of appellant's attempt to cash a check belonging to Mr. Powers on or about November 1, 1979. It is from these actions that appellant brings his properly perfected appeal.
In his first ground of error, appellant contends the trial court erred in overruling his motion to suppress the identification evidence obtained at the pre-trial lineup because appellant was not represented by counsel at that time. Appellant maintains the lineup occurred after his constitutional right to counsel had attached to the proceedings because he had been charged with forgery prior to the lineup, although he had not yet been charged with aggravated robbery. The constitutional right to counsel in a criminal case attaches at the initiation of adversary judicial criminal proceedings. Kirby v. Illinois, 406 U.S. 682, 689-90, 92 S. Ct. 1877, 1882, 32 L. Ed. 2d 411 (1971). A post-indictment pre-trial lineup at which witnesses are present to identify an accused is a critical stage of a criminal *837 prosecution to which the constitutional right to counsel attaches. Id. In-court identifications are not admissible as evidence if they derive from a lineup which violates the constitutional standard governing the point at which an accused's right to counsel arises. Id. Where, however a witness bases his/her in-court identification of an accused upon observations other than those made at the lineup and the witness had ample opportunity to observe the accused other than at the lineup, the identification has an origin independent from the challenged lineup. Brem v. State, 571 S.W.2d 314, 320 (Tex.Cr.App.1978). Evidence of an in-court identification is admissible in such circumstances even though the lineup may have been improper. Id.; Thompson v. State, 480 S.W.2d 624, 626-628 (Tex.Cr.App.1972), citing U. S. v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). The state must demonstrate the independent origin of in-court identification following an improper or illegal lineup by clear and convincing evidence. Thompson v. State, supra, at 627. The record before us indicates the court held a hearing outside the jury's presence to determine the source of the Powers' in-court identification of appellant. The record of that evidence is replete with demonstrations that the Powers based their in-court identification upon sources other than the lineup held December 15, 1979. Under these circumstances, we find the error in the lineup harmless and overrule appellant's first ground of error.
Appellant's second ground of error maintains the trial court erred in admitting evidence of the extraneous offense of forgery at the guilt-innocence stage of the trial. A teller for the Port City Bank in Harris County, Texas testified an unknown black male tendered a check and driver's license belonging to Mr. Lee Powers to her on November 1, 1979, which check she cashed. Mr. Leon Brown, vice-president and cashier at the bank testified he had Mr. Powers fill out a forgery affidavit concerning the above check. The check was admitted into evidence as State's Exhibit No. 14. Subsequent investigation indicated that finger prints on the above check were appellant's. Where an offense is one continuous transaction, or another offense is part of the case or trial, or blended or closely interwoven, proof of all such facts is proper. Archer v. State, 607 S.W.2d 539, 543 (Tex. Cr.App.1980); Hines v. State, 571 S.W.2d 322, 325 (Tex.Cr.App.1978); Albrecht v. State, 486 S.W.2d 97, 100-101 (Tex.Cr.App. 1972). The cashing of a forged check owned by the person robbed just hours earlier must be viewed as so interwoven with that earlier robbery to justify admitting evidence of the forgery to show the full extent and effect of the robbery as part of the context of the criminal act. Albrecht v. State, supra. We find, therefore, the trial court properly admitted the evidence of forgery and overrule appellant's second ground of error.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4045379/ | ACCEPTED
05-14-01175-CR
FIFTH COURT OF APPEALS
DALLAS, TEXAS
3/18/2015 10:57:08 AM
LISA MATZ
CLERK
No. 05-14-01175-CR
RECEIVED IN
5th COURT OF APPEALS
IN THE COURT OF APPEALS DALLAS, TEXAS
FOR THE FIFTH DISTRICT OF TEXAS 3/18/2015 10:57:08 AM
AT DALLAS LISA MATZ
Clerk
CHRISTOPHER GERALD PRICE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
On appeal from Criminal District Court No. 3
of Dallas County, Texas
In Cause No. F13-58588-J
BRIEF FOR APPELLANT
Counsel of Record
Lynn Richardson Katherine A. Drew
Chief Public Defender Assistant Public Defender
Dallas County, Texas State Bar No. 06117800
Frank Crowley Courts Building
133 N. Riverfront Boulevard, LB-2
Dallas, Texas 75207-4399
(214) 875-2360 (phone)
(214) 875-2363 (fax)
Kathi.Drew@dallascounty.org
Attorneys for Appellant
LIST OF PARTIES
APPELLANT
Christopher Gerald Price
APPELLEE
The State of Texas
DEFENSE COUNSEL AT TRIAL
Edwin V. King
400 S. Zang Blvd, Suite 105, LB 43
Dallas, TX 75208
STATE’S ATTORNEY AT TRIAL
Kendall Costello and Cresta Garland
Dallas County District Attorney‟s Office
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
APPELLANT’S ATTORNEY ON APPEAL
Katherine A. Drew
Dallas County Public Defender‟s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Dallas, Texas 75207-4399
STATE’S ATTORNEY ON APPEAL
Susan Hawk (or her designated representative)
Dallas County District Attorney‟s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
ii
TABLE OF CONTENTS
LIST OF PARTIES ................................................................................................... ii
INDEX OF AUTHORITIES......................................................................................v
STATEMENT OF THE CASE ..................................................................................1
ISSUES PRESENTED...............................................................................................1
STATEMENT OF FACTS ........................................................................................2
SUMMARY OF ARGUMENT ...............................................................................16
ARGUMENT ...........................................................................................................17
Point of Error 1, Restated.........................................................................................17
The trial court abused its discretion by limiting defense counsel’s
cross-examination of the complainant. (RR4: 103-105; RR5: 109)..............17
Point of Error 2, Restated.........................................................................................17
The trial court abused its discretion by denying defense counsel’s
request to re-open for the purpose of additional cross-examination of
the complainant. (RR6: 6). ............................................................................17
Point of Error 3, Restated.........................................................................................17
The trial court abused its discretion by sustaining the State’s
objection to defense counsel’s jury argument regarding the
complainant’s lack of honesty to law enforcement and instructing the
jury to disregard that argument. (RR6: 42-53). ............................................17
Point of Error 4, Restated.........................................................................................36
The trial court erroneously included the full definition of intent in the
jury charge. (CR1: 92)...................................................................................36
Point of Error 5, Restated.........................................................................................36
The trial court erroneously included the full definition of knowledge in
the jury charge. (CR1: 92). ............................................................................36
Point of Error 6, Restated.........................................................................................42
The trial court erroneously included the full definition of reckless in
the jury charge. (CR1: 92). ............................................................................42
PRAYER ..................................................................................................................44
iii
CERTIFICATE OF SERVICE ................................................................................44
CERTIFICATE OF COMPLIANCE .......................................................................45
iv
INDEX OF AUTHORITIES
Cases
Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1985) ................................................ 39, 40, 42
Billodeau v. State,
277 S.W.3d 34 (Tex. Crim. App. 2009) ........................................................ 18, 19
Brooks v. State,
967 S.W.2d 946 (Tex. App. – Austin 1998, no pet.) ...........................................38
Carroll v. State,
916 S.W.2d 494 (Tex. Crim. App. 1996) .............................................................32
Chaney v. State,
314 S.W. 3d 561 (Tex. App. – Amarillo 2010, pet. ref‟d) ............................ 39, 43
Clark v. State,
365 S.W.3d 333 (Tex. Crim. App. 2012) .............................................................37
Cook v. State,
884 S.W.2d 485 (Tex. Crim. App. 1994) .............................................................38
Davis v. Alaska,
415 U.S. 308 (1974) .............................................................................................32
Davis v. State,
329 S.W.3d 798 (Tex. Crim. App. 2010) .............................................................19
Delaware v. Van Arsdall,
475 U.S. 673 (1986) .............................................................................................32
Hammer v. State,
296 S.W.3d 555 (Tex. Crim. App. 2009) ................................................ 32, 33, 34
Landrian v. State,
268 S.W.3d 532 (Tex. Crim. App. 2008) .............................................................38
Martinez v. State,
327 S.W.3d 727 (Tex. Crim. App. 2010) .............................................................18
Mendenhall v. State,
15 S.W.3d 560 (Tex. App. – Waco 2000), aff’d on other grounds, 77 S.W.3d 815
(Tex. Crim. App. 2002) ........................................................................................38
v
Peek v. State,
106 S.W.3d 72 (Tex. Crim. App. 2003) ...............................................................18
Vallair v. State,
No. 09-11-00038-CR, 2011 Tex. App. LEXIS 7055 at * 8 (Tex. App. –
Beaumont August 31, 2011 pet. ref‟d) (not designated for publication) .............43
Statutes
TEX. CODE CRIM. PROC. art. 36.02 ...........................................................................18
TEX. CODE CRIM. PROC. art. 36.19 ...........................................................................40
TEX. FAM. CODE § 261.201 ......................................................................................19
TEX. PENAL CODE § 22.02 ..........................................................................................1
TEX. PENAL CODE § 22.02(a)(1) ..............................................................................38
TEX. PENAL CODE § 6.03(a) .....................................................................................38
TEX. PENAL CODE § 6.03(b) .....................................................................................38
TEX. PENAL CODE § 6.03(c) .....................................................................................43
Rules
TEX. R. EVID. 404(a)(3)............................................................................................32
TEX. R. EVID. 404(b) ................................................................................................33
TEX. R. EVID. 608(b) ......................................................................................... 29, 33
TEX. R. EVID. 613(b) ......................................................................................... 33, 36
Constitutional Provisions
TEX. CONST. Art. I § 10............................................................................................32
U.S. CONST. amend. VI ............................................................................................32
U.S. CONST. amend. XIV .........................................................................................32
vi
TO THE HONORABLE COURT OF APPEALS:
COMES NOW Appellant, Christopher Gerald Price, and submits this brief
on appeal from a conviction for aggravated assault in Criminal District Court No. 3
of Dallas County, Texas, the Honorable Gracie Lewis, judge presiding.
STATEMENT OF THE CASE
Appellant was charged by indictment with aggravated assault in violation of
TEX. PENAL CODE § 22.02. (CR1: 15). Appellant entered a plea of not guilty to this
indictment and was afforded a trial before a jury. (RR4: 16). At the conclusion of
the evidence, the jury found Appellant guilty and subsequently sentenced him to
seventy-five years‟ imprisonment. (CR1: 119; RR6: 56; RR7: 41). Based on the
jury‟s verdict, the trial court also made a family violence finding and a deadly
weapon finding in the judgment. (CR1: 100, 120; RR6: 56).
Judgment was entered on September 8, 2014. (CR1: 119). Appellant gave
timely notice of appeal. (CR1: 119).
ISSUES PRESENTED
Point of Error 1
The trial court abused its discretion by limiting defense counsel’s cross-
examination of the complainant. (RR4: 103-105; RR5: 109).
1
Point of Error 2
The trial court abused its discretion by denying defense counsel’s request to re-
open for the purpose of additional cross-examination of the complainant.
(RR6: 6).
Point of Error 3
The trial court abused its discretion by sustaining the State’s objection to defense
counsel’s jury argument regarding the complainant’s lack of honesty to law
enforcement and instructing the jury to disregard that argument. (RR6: 42-53).
Point of Error 4
The trial court erroneously included the full definition of intent in the jury
charge. (CR1: 92).
Point of Error 5
The trial court erroneously included the full definition of knowledge in the jury
charge. (CR1: 92).
Point of Error 6
The trial court erroneously included the full definition of reckless in the jury
charge. (CR1: 92).
STATEMENT OF FACTS
Leslie Warren
Leslie Warren, the complainant, testified that she had known Appellant for
ten years. (RR4: 25). For a six month period of time in 2011-2012, Appellant had
lived with her, her common law husband, Scott Segalla, and their children. (RR4:
27). They began a romantic, dating relationship after Warren broke up with Segalla
2
and Appellant again moved in with Warren in January of 2013.1 (RR4: 27, 28, 87,
88).
Warren had been a drug user for many years and had a “very significant
drug history.” (RR4: 31, 90). Specifically, she smoked methamphetamine and
marijuana. (RR4: 31). Warren suspected that Appellant was using drugs as he
would not take a drug test. (RR4: 32). After several months, Warren began openly
using drugs again. (RR4: 32, 33, 34). She got her supply of drugs from some of her
customers at Keller‟s Hamburgers, where she worked as a car hop. (RR4: 29, 33).
In the months leading up to the events for which Appellant was on trial, Warren‟s
life consisted of “working at Keller‟s and staying up late at night drinking and
smoking ice, which is methamphetamine,” and marijuana. (RR4: 91). Essentially,
everyone she associated with was using illegal drugs. (RR4: 90).
On July 29-30, 2013, Veronica Muniz and Candace Smith were at Warren‟s
apartment “hanging out” and smoking methamphetamine.2 (RR4: 36, 37). At one
point, Warren drove Muniz to a motel to meet a friend. (RR4: 37, 38). Appellant
and Smith followed them. (RR4: 38). According to Warren, Appellant was acting
1
Warren admitted, on cross-examination, that her children didn‟t really live with her but stayed
with other family members. (RR4: 91, 92).
2
Indeed, Warren admitted that she had been smoking methamphetamine for two-three days
before the events occurred which led to the prosecution. (RR4: 108). She had also been sleepless
for an extended period of time, at least twenty-four hours. (RR4: 109).
3
jealous; he knew Muniz was a lesbian and kept asking if she was Warren‟s
girlfriend. (RR4: 38, 39). They stayed for a while, and then returned to Warren‟s
apartment with Smith, who stopped to get them something to eat. (RR4: 39, 40).
Warren and Appellant argued a bit, but they got over it.3 (RR4: 40).
An argument between Warren and Appellant started again when Appellant‟s
friend, Chivo, came over to sell them $60 worth of methamphetamine. (RR4: 40,
41, 42, 112). Smith had wanted to buy some drugs from Chivo. (RR4: 112). Chivo
apparently said something to Smith that upset her.4 (RR4: 42, 43, 112). Appellant
initially agreed with Warren, but then called Smith a bitch, which further upset
Warren. (RR4: 43, 44). Both Chivo and Smith left. (RR4: 45, 112, 113). Warren
and Appellant continued to argue, primarily over why he would bring a drug dealer
into their home, but then they had “make-up sex.” (RR4: 45, 46, 113-114).
After engaging in sex, Warren and Appellant continued to argue, both over
Chivo and Appellant‟s ex-girlfriend. (RR4: 46, 47). Both Warren and Appellant
were paranoid from drug use at this point and the argument was becoming volatile.
(RR4: 47, 48, see also RR4: 108).
3
Warren stated on cross-examination that she and Appellant had been “arguing for months.”
(RR4: 115). She admitted that they argued more when they were high than when they were
sober. (RR4: 115).
4
Warren testified that she knew Chivo was trying to have sex with Smith. (RR4: 113).
4
Appellant told Warren to go into the bathroom and basically pushed her into
the master bath. (RR4: 49, 118). Warren testified that she was begging Appellant
to talk to her. (RR4: 49, 50). She sat on the floor between the toilet and the tub.
(RR4: 50, 118). Appellant left the bathroom; Warren heard him going through her
purse and drawers in the household furniture. (RR4: 50). Appellant was saying “a
lot of hateful things.” (RR4: 50). Even though the door to the bathroom was not
locked, Warren testified that she was being held in the bathroom against her will.5
(RR4: 51, 53).
Appellant came back into the bathroom about 20 minutes later. (RR4: 51).
According to Warren, he tried to shove a shirt into her mouth so that she would
shut up and stop calling his name. (RR4: 51). He also brought in a bottle of
rubbing alcohol, which he poured over her head. (RR4: 51, 118, 120). He lit
something with a lighter, which she thought was toilet paper, and threw it on her
head. (RR4: 51, 52). Warren heard a “poof” and put her head under the faucet in
the tub. (RR4: 51, 52, 123, 126). Appellant was yelling “stop putting it out, don‟t
touch it.” (RR4: 52).
While Warren was washing her hair, globs of it were coming out. (RR4: 52).
5
Interestingly, Warren also admitted that she did not lock the bathroom door herself to keep
Appellant out of the bathroom, even after he poured alcohol on her head. (RR4: 53, 119, 122).
Evidence was heard that the bathroom door only locked from the inside. (RR4: 119, 122, 124).
5
She was crying and yelling at Appellant. (RR4: 52). Appellant left, but again
returned and tried to gag Warren with a shirt. (RR4: 54). He then got an extension
cord and bound her wrists together and then tied her wrists to her ankles. (RR4: 54,
55). Warren was very scared at this point. (RR4: 55).
Warren managed to free her hands from the extension cord. (RR4: 56).
Appellant then re-entered the bathroom and poured charcoal lighter fluid6 on her.
(RR4: 56, 125). Warren jumped in the shower and tried to rinse the fluid off. (RR4:
56, 126, 132). She took off her clothes,7 except for her bra and panties, and
wrapped herself in the shower curtain. (RR4: 56, 57, 78, 137). She then took the
shower rod and pushed Appellant out of the bathroom. (RR4: 57, 78, 134).
Warren ran to the master bedroom for a blanket while Appellant continued
to squirt the charcoal lighter fluid on her as well as around the bedroom. (RR4: 57,
134). Warren was saying a number of things to Appellant, such as she loved him,
she was pregnant,8 and that she could not believe he was doing this to her. (RR4:
57). Appellant got another piece of toilet paper, lit it, threw it on the bed, and the
6
Warren testified that this charcoal lighter fluid was hers and was usually kept in the kitchen,
though Appellant may have gotten it from the patio. (RR4: 78, 79).
7
Warren testified that she knew if her clothes caught fire they would stick to her. (RR4: 56, 57).
8
It later turned out that Warren was, in fact, pregnant with Appellant‟s child, though she actually
did not know it at the time. (RR4: 85, 86, 140-141).
6
bed went up in flames. (RR4: 57, 87, 134). Appellant did not throw the tissue at
Warren. (RR4: 138). Warren jumped or catapulted over the bed and into
Appellant‟s arms. (RR4: 57, 135, 137). Appellant gave her a bear hug, then hit her
on the back of her head; she felt a big “crack.” (RR4: 57, 58, 60, 72-73, 135, 137).
Warren lost consciousness and woke up in the hallway of her apartment.
(RR4: 60, 61, 73). She walked outside where she saw a friend, “Rob.”9 (RR4: 60,
137, 139). Rob asked if her kids were in the apartment. (RR4: 62). When told they
were not, Rob called 911. (RR4: 63). He placed Warren in his truck then got other
tenants out of the building. (RR4: 63). When the paramedics arrived, she told them
that her boyfriend did it. (RR4: 65).
Warren ultimately spent 24 days in the hospital being treated for burns.
(RR4: 67, 86). She was in a lot of pain and was given medication for it. (RR4: 66,
75). The majority of injuries were to her back, though she also had injuries to her
neck, ears, head and hands. (RR4: 68; State‟s Exhibit 2-20). She underwent skin
graft surgery and had multiple follow-up appointments since her release from the
hospital. (RR4: 79, 80, 81). She lost everything in the fire and was essentially
homeless at the time of trial, sporadically staying with various friends and family
members. (RR4: 68, 69, 84).
9
Warren testified that she had talked to Rob on the telephone just after she and Appellant had
sex; Rob wanted to switch cars with her, to which she had agreed. (RR4: 62, 117).
7
Warren admitted that the sequence of events she recounted to the police was
different from that of her trial testimony. (RR4: 120, 121, 125, 127-128, 129;
Defense Exhibit1). She also stated that there were inaccuracies in her description
of events in her medical records. (RR4: 135-136, 138). Indeed, Warren‟s statement
to the police was as follows:
I, Leslie Warren, 1-8-84, gave Captain Lawrence Pitman consent to
sign -- to write my statement. I live at 10950 Walnut Hill Lane,
Number 104W. I‟ve been dating Christopher Price, (12-3-84), since
January 12, 2013. The last couple of days, we have been arguing.
On this morning, 7/30/13, we had been arguing since about 4:00 a.m.
He flipped on me, tied me up with an extension cord, comma, poured
alcohol me – on me, and locked me in the bathroom for a while.
He threw a tissue on me that was on fire. I put the fire out using the
shower. I was tied at the ankles and the wrists. I was able to untie
myself. He was threatening to kill me the entire time, saying you‟re
dumb, man, you‟re fixin‟ to be dead.
You‟re a dumb ass, and you‟re fixing to be dead. He said you‟re
fixing to burn up. I had to get loose. I grabbed the curtain rod to hit
him, but I was afraid. I got out of the bathroom. He had lighter fluid.
He had hit me in the head with his fist several times.
I was able to get out of the bathroom. I was in the bedroom. He had
poured lighter fluid on me. It was all over the bed, too. He poured it
on me. I jumped on the bed to try to get away. He started throwing
tissues lit on fire onto the bed. I had taken off my clothes, grabbed a
blanket to protect me.
I do not remember anything after that. He used a lighter to set the
tissues on fire.
8
(Defense Exhibit 1;10 see also RR4: 127-128). Yet another statement differs even
more:
My boyfriend, Christopher Price, and I got into an argument. He
became upset and enraged, began punching me in the face and body.
He threw me down into the bathroom and tied my wrists and ankles
with an extension cord.
He poured rubbing alcohol on me and then lit tissue on fire and threw
it on me, lighting me on fire. He went into bedroom and got lighter
fluid while I tried to put the fires out and turn on water to put myself
out.
I tried to run out and escape, but he was blocking my path. He
squirted lighter fluid on me as I tried to get around him on the bed and
lit me on fire again. I ran back into the bedroom again and hid for a
bit.
Then there was a lot of smoke, so I got scared and tried to run out
again. I ran past a lot of fire and flames as the bed and apartment were
on fire. I guess he had already left me there because he was not
around anymore. A few minutes later the fire department found me
and took care of me.
(Defense Exhibit 4;11 see also RR5: 127-128).
Candeace Smith
Candeace Smith had known Leslie Warren for about a year; the two met at
10
Detective Pitman, who apparently took this statement, did not testify at trial.
11
Dallas Police Officer Tom Clayton testified that he was dispatched to Parkland Hospital on
July 30, 2013 to take a statement from Leslie Warren. (RR5: 122, 123). He wrote the statement
out for her, which she signed. (RR5: 123, 124). The statement was admitted as Defense Exhibits
4 and 5. (RR5: 124, 127-129).
9
Keller‟s Hamburgers, where they had both worked. (RR4: 143). Smith knew
Appellant as “Sour.” (RR4: 144).
On July 29, Smith went to the apartment Warren and Appellant shared.
(RR4: 144, 145). She had brought Warren some things from Ross, a store where
she had been shopping. (RR4: 144). At one point they were joined by Veronica
Muniz, a/k/a Ronnie. (RR4: 145). They all smoked methamphetamine. (RR4: 146).
At one point the four left to go see friends at a motel. (RR4: 145). Smith and
Muniz both rode together in Smith‟s car when Warren and Appellant drove in their
truck. (RR4: 146, 164-65). At the motel, everyone used methamphetamine and
some people were drinking, though Smith claimed she was not one of them. (RR4:
166). Appellant became upset by Warren‟s attention to Muniz. (RR4: 147, 148).
He was jealous of their relationship, which he thought might be sexual in nature.
(RR4: 147, 167). Smith testified that the tension between the two was such that one
“could cut it with a knife.” (RR4: 148). Appellant was “very rude” and “territorial”
of Warren. (RR4: 167).
The three left about 2:00 a.m., returning to Warren‟s apartment. (RR4: 148,
149). Once again Warren and Appellant rode together while Smith drove herself,
stopping to get some food from Jack-in-the- Box. (RR4: 149).
Once back at the apartment, a man known as “Chivo” showed up. (RR4:
150). He brought methamphetamine, which they all smoked. (RR4: 151). Chivo
10
said some things to Smith which intimidated her. (RR4: 152). Appellant and
Chivo‟s behavior towards Smith made her feel unsafe and uncomfortable. (RR4:
153, 169). This caused Warren to become mad at Appellant, which only increased
Appellant‟s anger to Warren. (RR4: 153).
Smith left the apartment and went outside to her car, though she did not
leave immediately. (RR4: 154, 179). Chivo, Appellant and Warren all came out to
talk to her. (RR4: 154). Appellant yelled at Warren, though Warren did not seem
worried. (RR4: 154, 155). Both Chivo and Appellant were trying to get her to
come back into the apartment, which she refused to do. (RR4: 155, 174).
Smith drove off about 7:30 a.m.12 (RR4: 156). Forty-five minutes to an hour
later she got a text from Warren asking if she was OK. (RR4: 156). Smith did not
respond to that text. (RR4: 156). About 2:00 p.m., Smith learned from Muniz that
Warren had been hospitalized. (RR4: 157).
Smith was interviewed by the fire department, even though she was not a
witness to the fire being started. (RR4: 157-158, 161). She did not tell them about
her drug use that night.13 (RR4: 157-158).
12
Smith told Detective Stephenson that she went to an Albertson‟s where she fell asleep in the
parking lot with her car running for several hours. (RR5: 76).
13
Indeed, at the time of trial Smith was still using drugs and had used drugs the night before her
testimony. (RR4: 159).
11
Robert Holzheuser
Robert Holzheuser, a/k/a “Rob,” met Leslie Warren at Keller‟s Hamburgers,
where he was a regular customer. (RR4: 181). Holzheuser drove a Yukon and
Warren drove a pickup; they occasionally switched vehicles if he needed a pick-up
in his construction business. (RR4: 182). On the morning of July 30, between 9:00
and 10:00 a.m., Holzheuser spoke to Warren and they agreed to switch vehicles
later that day. (RR4: 182, 194). During the conversation, Holzheuser could hear
Appellant in the background, though he could not make out what was being said.
(RR4: 183). Holzheuser asked if Warren was okay; she said yes. (RR4: 183).
Holzheuser got to Warren‟s apartment between noon and 1:00 p.m. (RR4:
184). He parked in front of the apartment. (RR4: 184). When Holzheuser walked
toward the door, Warren opened it in her bra and panties. (RR4: 185). She did not
speak, but walked past Holzheuser. (RR4: 185). Holzheuser could see blood on the
side of her face and noticed that Warren was blistered and her hair was smoking,
though she herself was not on fire. (RR4: 185, 193). Warren was disoriented and
could not tell Holzheuser if her children were in the apartment or what had
happened. (RR4: 185, 186, 190).
Holzheuser checked the apartment, which was smoky. (RR4: 186). He
noticed that the bed was on fire. (RR4: 186). Holzheuser left the apartment, called
911, and then warned other tenants to get out of the building. (RR4: 186). He
12
waited with Warren, whom he had put in his truck, until the paramedics arrived
and took her to Parkland Hospital. (RR4: 185, 187, 196).
Shane Cooper
Dallas firefighter and paramedic Shane Cooper was dispatched to the scene
of a fire at 12:56 p.m. on July 30, 2013; the address was 10950 Walnut Hill Lane
and the report stated that a mattress was on fire and a female was badly burned.
(RR4: 201, 202, 204). Smoke was visible as he and his partner, Lorenzo Herrera,
approached the complex. (RR4: 204). Cooper found the female, Warren, on the
passenger side of a “citizen‟s Tahoe.” (RR4: 204). She was wearing only her bra
and her panties and had quite a bit of burning, mostly to her top shoulder area
though there were other visible injuries. (RR4: 205, 206, 210). Her airway was
clear and she was responsive and coherent. (RR4: 207). According to Cooper, she
told him that she had been tied up by her boyfriend and left in a bathroom
overnight; he then poured lighter fluid on her and set her on fire. (RR4: 210).
Cooper detected the odor of some chemical, but not specifically lighter fluid.
(RR4: 215, 216).
Cooper and his partner began treatment on her and transported her as
quickly as they could to Parkland Hospital. (RR4: 206, 211).
13
Brett Arnoldo
Dr. Brett Arnoldo, a burn surgeon at Parkland Hospital, was responsible for
some of the care Warren received. (RR5: 8-9). Arnoldo testified that Warren had
burns over 15% of her body; some of these were third degree burns. (RR5: 10, 11).
Her medical records reflect that she stated that her boyfriend assaulted her, poured
alcohol and lighter fluids on her face and set her on fire. (RR5: 14, 15). Her
injuries were consistent with being set on fire. (RR5: 19). Arnoldo operated once
on Warren (RR5: 12, 13, 17-18).
Arnoldo described the treatment burn patients receive and testified that it can
be very painful. (RR5: 17-23). In his opinion, Warren‟s injuries were not
significantly life threatening for a person her age. (RR5: 24). She did, however,
suffer permanent disfigurement and the possibility for life-long effects. (RR5: 24-
26).
Marcus Stephenson
Arson Investigator Marcus Stephenson was the lead investigator of the fire
in the apartment complex. (RR5: 32, 33). Stephenson testified that his investigation
revealed that the fire started in the master bedroom on the bed. (RR5: 34, 56, 78).
There was no evidence that the fire was started in the bathroom, or, in fact,
anywhere other than the master bedroom. (RR5: 60, 61). In Stephenson‟s opinion,
the damage to the apartment was caused by arson. (RR5: 53, 65).
14
A canine used in his investigation, who was trained to alert on 14 different
accelerants,14 alerted on two places in the apartment: the master bedroom and the
hallway bathroom. (RR5: 50, 51, 50). Stephenson could not say what substance the
dog had alerted on, but took samples from both rooms. (RR5: 51, 59; State‟s
Exhibits 66, 67). He also collected a red lighter; the lighter was melted a bit and no
fingerprints were obtained from it. (RR5: 53).
Stephenson admitted that there was no indication of a “trailer” or “fire trail”
from one location to another, i.e., a line of accelerant between the hallway
bathroom and the master bedroom. (RR5: 71, 84, 85, 86).
In Stephenson‟s opinion, lighter fluid was an ignitable fluid and a lighter
was an ignitable source. (RR5: 57). Both were deadly weapons. (RR5: 57).
As part of his investigation, Stephenson spoke to Candeace Smith. (RR5: 67,
75). Smith told him that Appellant and Warren had been up for a couple of days.
(RR5: 75). He knew they had been “partying,” but did not know that they had been
smoking methamphetamine. (RR5: 76). He did not ask Smith if she had been doing
drugs. (RR5: 76).
14
The dog was trained to alert on “[g]asoline, kerosene, diesel fuel, automatic transmission fluid,
charcoal lighter fluid, turpentine, acetone, kerosene, paint thinner, lacquer thinner, lacquer
thinner, (sic) (and) paint remover.” (RR5: 59). The dog was not trained to alert on rubbing
alcohol. (RR5: 56, 79).
15
Emerald Nazareno
Emerald Nazareno, a forensic scientist with the State Marshal‟s arson
laboratory, testified that he received and tested two gallons of fire debris.15 (RR5:
87-90). In the first gallon which contained samples of the left bedroom carpet, he
found no traces of accelerant. (RR5: 90, 93). In the second, which contained debris
from a hallway bathroom rug, he found MPD, medium petroleum distillate. (RR5:
90, 93). Since there were an infinite number of substances that would qualify, he
was unable to say with certainty exactly what the MPD was. (RR5: 93, 96, 97). He
did testify, however, that charcoal lighter fluid would qualify while alcohol and
rubbing alcohol would not. (RR5: 93, 99-100).
SUMMARY OF ARGUMENT
Issues 1, 2 & 3: The trial court prevented Appellant from cross-examining
the complainant from data contained in records kept by Child Protective Services
about false and/or mis-leading statements she made regarding her drug use to law
enforcement. This line of questioning was germane to establishing that the
complainant had a motive to lie about Appellant‟s involvement, if any, in her
15
At one point during jury deliberations, the jury asked for this evidence. (RR6: 51). Because the
cans had not been opened, they were opened in the courtroom prior to being delivered to the
jury. (RR6: 51, 51). Once opened, the contents of the cans emitted a strong “overwhelming”
odor. (RR6: 52, 53, 55). The trial court judge brought the jury into the courtroom (“since we‟ve
already stunk up the courtroom”) to view the evidence. (RR6: 53, 54, 55).
16
injuries. The trial court compounded that error by refusing to permit defense
counsel to re-open for additional cross-examination and by sustaining the State‟s
objection to jury argument concerning the complainant‟s history of deception to
law enforcement. These errors constitute an abuse of discretion which entitles
Appellant to a reversal and to a new trial.
Issues 4, 5 & 6: The jury charge erroneously contained full definitions for
the culpable mental states of intentional, knowing and reckless, despite the fact that
aggravated assault is a result-oriented crime. These definitions were not limited in
the application paragraphs. The lack of proper definitions and guidance to the jury
resulted in some harm to Appellant requiring a reversal.
ARGUMENT
Point of Error 1, Restated
The trial court abused its discretion by limiting defense counsel’s cross-
examination of the complainant. (RR4: 103-105; RR5: 109).
Point of Error 2, Restated
The trial court abused its discretion by denying defense counsel’s request to re-
open for the purpose of additional cross-examination of the complainant.
(RR6: 6).
Point of Error 3, Restated
The trial court abused its discretion by sustaining the State’s objection to defense
counsel’s jury argument regarding the complainant’s lack of honesty to law
enforcement and instructing the jury to disregard that argument. (RR6: 42-53).
17
(Jointly Argued)
The trial court abused its discretion by preventing the defense from cross-
examining Warren from records kept by Child Protective Services (hereinafter
CPS) about false and/or mis-leading statements she made regarding her drug use.
This line of questioning was germane to establishing that Warren had a motive to
lie about Appellant‟s involvement in her injuries. The trial court compounded that
error by refusing to permit defense counsel to re-open for additional cross-
examination and by sustaining the State‟s objection to jury argument concerning
Warren‟s history of deception to law enforcement. Consequently, Appellant is
entitled to a reversal and to a new trial.
Standard of Review
A trial court‟s decision to exclude evidence or limit cross-examination is
reviewed under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727,
736 (Tex. Crim. App. 2010); Billodeau v. State, 277 S.W.3d 34, 43 (Tex. Crim.
App. 2009). The trial court abuses its discretion when its determination lies outside
the zone of reasonable disagreement. Martinez, 327 S.W.3d at 736; Billodeau, 277
S.W.3d at 43.
The same standard is utilized when a trial court refuses a request to re-open
the testimony. Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003); see also
TEX. CODE CRIM. PROC. art. 36.02 (providing that a court “shall allow testimony to
18
be introduced at any time before the argument of a cause is concluded, if it appears
that it is necessary to a due administration of justice”).
Similarly, a trial court‟s ruling on an objection to jury argument is reviewed
on appeal for an abuse of discretion. Davis v. State, 329 S.W.3d 798, 825 (Tex.
Crim. App. 2010).
Facts
The record reflects multiple efforts by defense counsel to cross-examine
Warren about the contents of CPS records in order to discern a potential motive for
her to lie in this case. These efforts were thwarted by the trial court‟s erroneous
rulings.
Initial Cross-Examination
On cross-examination, defense counsel sought to question Warren about
prior statements she made and interactions she had with CPS16 over the State‟s
objections:
Q. (BY MR. KING) And when you were asked by the State who all
lived at the apartment, you mentioned yourself, you mentioned Chris,
you mentioned your stepbrother, but you didn‟t mention your kids,
because your kids really don‟t live with you.
16
Appellant recognizes that CPS records are generally confidential and privileged from
disclosure. See TEX. FAM. CODE § 261.201. However, constitutional considerations may require
the admission of evidence that rules of procedure or evidence would otherwise bar. Billodeau v.
State, 277 S.W.3d 34, 43 (Tex. Crim. App. 2009).
19
They stay with other family members, your sister or somebody else,
right?
A. Correct.
Q. And in all fairness, that‟s because of the drug use you‟ve been
involved with over the course of your life.
A. Partially, correct.
Q. Well, you‟ve had events where your children had to go live with --
MS. GARLAND: Your Honor, at this time I‟m gonna object to this
line of questioning without a hearing.
THE COURT: I‟ll allow him to finish this question.
Q. (BY MR. KING) You‟ve had – you‟ve had periods where your
children would have to go live with other relatives.
A. Correct.
Q. And you haven‟t always been honest about whether or not you‟ve
used drugs when -- when people have questioned you about whether
you‟ve -- were using drugs; is that fair to say?
A. No. I‟m honest.
Q. Well, when CPS investigated you back in 2008 –
MS. GARLAND: Object to relevance, your Honor.
THE COURT: Objection overruled at this point. Go ahead and ask
your question.
Q. (By Mr. King) -- you were pregnant and you lied about using
drugs.
A. I told the truth.
20
Q. When you were pregnant in 2008 and CPS came and talked to you
and Scott, you lied about whether or not you had been using drugs.
A. And I told them the truth.
Q. You went to take a hair follicle test, and you and Scott, when you
found out you had to take a hair follicle test, you both bolted out of
the place and, ultimately, you did take the test which showed you had
been positive for drugs.
But you initially told CPS that you had lied -- that you had not been
using drugs while you were present -- pregnant, excuse me -- and that
was not true. That was a lie.
You don‟t recall that?
A. I did tell them the truth. I told them that I had been using for the
first five months of my pregnancy; I didn‟t know I was pregnant until
the fifth month; so I told her I would be dirty.
Q. You didn‟t tell them that until after you had tested positive for
drugs.
A. Not correct.
Q. Okay. So if the CPS records reflect that‟s the – that‟s the sequence
of events, they‟re just wrong?
A. Hmmm, it shouldn‟t even be there like that.
Q. Okay.
A. I told them the truth.
Q. Would it help you -- have you ever seen the CPS records?
A. Yes.
21
Q. All right. Would it help you to review any of that, just to see what -
- what their interviews reflect?
A. I mean, no.
Q. Do you recall in 2008 -- or 2006 --
MS. GARLAND: Your Honor, may we approach at this time?
THE COURT: Yes.
(RR4: 91-94).
Proffer at a Hearing Outside the Presence of the Jury
Thereafter, a hearing was held outside the presence and hearing of the jury at
which defense counsel sought the trial court‟s permission to cross-examine Warren
about certain contents of the CPS records. (RR4: 94-107).
At this hearing, Warren admitted that she had been investigated in 2005 by
CPS over the death of her five-month-old son. (RR4: 96, 97). The medical
examiner could not dispositively determine whether that child had died as a result
of a criminal or non-criminal act. (RR4: 96, 97). There was some question over
whether Warren had told CPS and/or the police that she had been using drugs at
the time the child died or was just tired from work. (RR4: 97). She did not recall if
she had ever been asked to take a drug test in 2005 and failed to show for that test.
(RR4: 97, 98).
Warren further admitted that when CPS initially got involved, she may have
22
“very well” denied that she was a drug user. (RR4: 95). She recalled calling her
caseworker on August 27, 2008, because she was upset that she “would be taking a
hair follicle test at Forward Edge” and worried because she had used cocaine
before she knew she was pregnant. (RR4: 95-96). She was aware that on
September 8, CPS had received results from Forward Edge that she had tested
positive for cocaine as well as “other metabolites of controlled substance.” (RR4:
96).
Defense counsel also asked if Warren recalled an event sometime around
December 2007-January 2008 when she and Segalla were “drunk and high” and he
“dropped the baby, the baby landed on its head and neck, but y‟all did not take the
child to a hospital for examination due to your fear of being caught high and
drunk.” (RR4: 102) Warren responded that she recalled Segalla “dropping my
oldest” but said the rest of counsel‟s question was inaccurate. (RR4: 102). She
admitted, however, that she was using drugs during this time. (RR4: 102).
Counsel summed up his intended cross-examination as follows:
Q. All right. Well, this was the same time that you were pregnant.
This was the same time that you came in and you gave a hair follicle
test at Forward Edge and you tested positive for amphetamine,
marijuana, cocaine. So you were using drugs at that point in time?
A. Right.
Q. That‟s the same…time frame, except it‟s eight months earlier when
this baby gets dropped. So you‟ve got a circumstance where sometime
23
in…early January of 2008, y‟all were high and drunk, the baby gets
dropped, but the baby‟s not taken to the hospital to see if…he‟s got
any injuries because y‟all are afraid that you‟re gonna be exposed
because you‟re high and drunk.
And then eight months later, somebody‟s calling in and reporting you
to CPS for using drugs, you deny using drugs, you test positive for
drugs, you finally admit that you‟re using drugs while you were
pregnant.
And then prior to that, in 2005, you‟re high on drugs and your son
dies while he‟s in y‟all‟s care through neglect because y‟all are too
high to take care of the child and you initially misrepresent what
happened there to law enforcement.
And that‟s the sequence of events; isn‟t that correct?
A. Correct.
(RR4: 102-103).
In urging admissibility, defense counsel made the following arguments to
the trial court:
MR. KING: Your Honor…the State has painted a picture in the
presence of the jury that she‟s been honest about her drug use, which
is not the truth. There‟s this allegation…that somehow she‟s been
forthright, and she hasn‟t always been forthright with law enforcement
in making a statement about the event that‟s taking place.
I believe that the evidence is gonna show that…her not telling the
truth on occasions…is…impeachable to show credibility in front of
the jury.
I think it‟s germane, and I think that the issue is gonna be that because
of the inconsistencies…(and)…multiple statements that she gives to
law enforcement in this particular event that brings us to this Court,
that those conflicts are going to raise an issue as to credibility as well.
24
**
The State has presented to the jury…that she‟s…honest…
And once they paint that like that, then they‟ve opened the door, and I
think we‟re entitled to go into it.
(RR4: 98-99). The State indicated that it had a motion in limine17 in place
regarding the CPS records because the State did not believe those records to be
relevant and did not want Warren‟s cross-examination to become “character
assassination.”18 (RR4: 100, 101).
The trial court ruled as follows:
The Court, after having listened to arguments of both counsel and,
also, having heard the proposed questions that Mr. King would like
to…ask the witness, the Court is…ordering that the defense attorney
is not to go into any CPS involvement.
These cases are too remote. We‟re talking about November 2005,
we‟re talking about August 2008. They are not relevant to the case
presently before the defendant [sic]. The issue before the defendant
[sic] is whether she was using drugs or high or intoxicated on the
night of…July the 29th and 30th of 2013, which clearly is five years
or if not more time past the time that the CPS involvement
has…happened.
She‟s already admitted she was using drugs that night. Her CPS
17
The record does not reflect a formal, written motion in limine. However, the trial court did
grant an oral motion in limine to the State as to any “bad acts” of the State‟s witnesses. (RR3:
208-209).
18
Defense counsel also wanted to cross-examine Warren on a recent theft conviction; the State
had no objection to that testimony. (RR4: 98-100).
25
involvement has no relevance whatsoever in regards to whether or not
she was a victim of an aggravated assault. For that reason, the Court is
not going to allow you to go into any testimony regarding that.
It… is not even relevant for the purpose of impeachment at this point.
So my ruling is very clear. You are not to go into anything having to
do with any CPS involvement. You are not to go into anything having
to do with her making misrepresentations to CPS at any point
regarding her drug usage unless it‟s near the time of 2013.
(RR4: 103-105).
Defense counsel acknowledged the trial court‟s ruling. (RR4: 105). Defense
counsel proffered the CPS records as Defense Exhibit A. (RR4: 105; see also RR5:
109-110).
Defense counsel and the trial court continued to discuss the issue. Defense
counsel stated that the inconsistencies in Warren‟s testimony and the CPS records
were admissible for impeachment as she had not been truthful. (RR4: 105-106).
The trial court said that “the jury should not have evidence that leads them to
believe that she is not credible as a victim of an offense
based upon the fact that she may or may not have been a good mother.” 19 (RR4:
106). Defense counsel further argued:
MR. KING: The…point being that…when she‟s under the
influence…of drugs…she is not credibly honest to law enforcement.
And that‟s what I‟m trying to present to the jury, since the accusation
19
The jury had already heard evidence from which is could concluded that Warren was not a
good mother, i.e., her extensive drug usage and the fact that her children did not live with her.
26
is that she says that Christopher Price set her on fire. And that‟s the
issue that I‟m offering it on as to whether or not that is a credible
statement by her to law enforcement…since she‟s high.
(RR4: 106). The trial court judge stated that she had made her ruling. (RR4: 106).
Defense counsel responded that he was simply trying to make a clear record. (RR4:
107).
Proffer at the Close of Evidence
Towards the close of the evidence, defense counsel again made a proffer of
proof to the trial court:
MR. KING: Your Honor, I would like to be able to ask Leslie Warren
questions in regards to the CPS investigation back in 2005, and here‟s
the basis of it.
Back in 2005, the allegations were that she had been involved with
excessive methamphetamine use and had literally passed out. That
was what had taken place.
And during the course of her being passed out, her child had passed
away somehow; manner and means unknown to the medical
examiner, SIDS, whatever, her fault, nobody‟s fault, I‟m not sure. But
the point is she used methamphetamines to such an excessive point
that she passed out.
Now…once again in 2008, there‟s some indication of
methamphetamine use, of significant methamphetamine use where
CPS is called back in, where a child is injured and the child is not
taken to the medical facility because of the methamphetamine use or
the fear…that telling somebody they were high might cause them
some type of problems or whatever. So there‟s this avoided situation.
I will note that in 2005, she denied initially having been on
methamphetamine and had just been tired, supposedly. And her story
27
to CPS didn‟t match up with what the other people said about who
found the baby dead and all this other.
So she has this history of drug use coupled with not telling the
complete truth about what the circumstances are at that point in time
dealing with significantly important personal issues; death of a child,
injury to another child.
Then we have some period of time where she says she‟s sober, okay?
But we know she‟s back on methamphetamine and it‟s clear from the
evidence she‟s got an extensive history of…using drugs for either a
couple of weeks or a couple of months; but for the last couple of days,
she‟s been up smoking meth and that‟s obvious to the fire
investigators, the medical personnel, everybody.
The point of this is that there is a lapse of about four hours where
there‟s no testimony as to what was actually going on or what was
taking place. She describes the event of getting a phone call at about
7:00 or 8:00 in the morning from Rob, and he‟s gonna come over and
pick up the truck.
Rob says when he called, he was there in an hour or an hour and a
half; that‟s kinda sketchy. But then…it‟s clear that this fire doesn‟t
start until about 12:30 to 1:00 o‟clock. That‟s when this fire starts.
The police get notified at 12:55; they come rolling in.
So between 8:00 and 12:00, there‟s a 4-hour gap where it‟s not clear
who‟s where, what‟s going on and what‟s taking place. Now, because
there‟s that gap in time, it‟s the contention of the Defense that she
very well may have been passed out before anything -- you know,
may have been passed out, may have been smoking in bed, may have
set this fire up.
The testimony is she could have received these injuries that she got
not being set on fire at all but just being in close proximity to the heat,
because the heat that can blister walls without even flames getting
close, certainly it‟s gonna blister skin and singe hair.
28
Her story is inconsistent between what she initially tells law
enforcement about being tied up and bound in the bathroom, and it is
inconsistent with her testimony on the witness stand. Her…statements
initially to the investigators is that she runs out of the burning
bedroom allegedly into a bathroom, hides for a while until smoke
starts coming in the door and then leaves and leaves out of the
apartment.
What she testified on the stand is that she jumped over the burning
bed soaked in charcoal lighter fluid, somehow didn‟t burst into
flames, jumped into the arms of Christopher Price, who caught her in
a bear hug and somehow hit her in the back of head in the course of
that bear hug, striking her in the head…creating these substantial
lacerations, at which point she passes out, wakes up outside of the
bedroom and doesn‟t have any recollection…after that point.
I think it‟s germane to show that her significant drug use has been
historically, in the past, a factor where she doesn‟t tell the truth about
events that are surrounding the immediate use and…any other unusual
events that occur while she's high as a kite.
We have the death of a baby in 2005, we have an injury to a child in
2008, and then we have a fire in 2013. I believe there is a pattern of
behavior and untruth on her part, lack of veracity, in explaining facts
and circumstances surrounding events where she's been up for a
couple of days smoking methamphetamine.
Because of that causal effect, we feel we‟re entitled to go into what
happened in 2005 and 2008 in a more particular manner.
(RR5: 102-105). The State again responded that defense counsel was attempting to
“assassinate her character.” (RR5: 106, 108). The State further argued that the type
of cross-examination in which defense counsel wished to engage was barred by
Rule 608 (b) of the Rules of Evidence. (RR5: 107); see also TEX. R. EVID. 608(b).
29
Defense counsel emphasized that the State had “opened the door” during
opening statement by claiming that Warren was an honest person. (RR5: 108).
Indeed, during its opening statement, the prosecutor said “Leslie Warren is…a very
honest person.” (RR4: 16). Warren had also insisted in cross-examination that she
was an honest person. (RR4: 92). Defense counsel also stated as follows:
The point we‟re trying to get across to the jury is not that she‟s a bad
mother; it‟s that bad things happen when she‟s blown away,
intoxicated on methamphetamines. Bad things happen to people that
she cares about or people that she‟s around or whatever. That‟s the
point.
The point is when she‟s high, trauma follows her of some kind. And
our position is that the defendant never set her on fire. However this
fire got started could be as a result of all kinds of things and her
spinning of this tale very well may be that she’s trying to avoid, you
know, another CPS investigation, she’s trying to avoid responsibility
for setting the apartment on fire by smoking in bed. She‟s trying to
avoid all kinds of things.
(RR5: 108-109) (emphasis added). The trial court stated that it was sticking to its
original ruling. (RR5: 109).
Request to Re-Open
At the conclusion of the evidence and just prior to jury argument, defense
counsel asked to re-open for the purpose of cross-examining Warren regarding the
CPS record as they were “germane to her motive to testify falsely to law
enforcement as a result of the events that transpired.” (RR6: 5). As counsel argued
to the trial court:
30
(BY MR. KING) We think it becomes germane with regards to that.
We believe that the inconsistent statements given by Ms. Warren to
law enforcement as to the circumstances that took place reflect a
disjointed and untruthful scenario.
We further believe that the CPS records are germane because they
reflect circumstances in which Miss Warren was under the influence
of methamphetamine and her resultant behavior. We believe that‟s
consistent with the events that we have in this matter. So it‟s a two-
fold circumstance.
I just want to make sure that‟s clear in the record, but we would ask to
reopen, recall Miss Warren, and be allowed to cross-examine on those
particular issues.
(RR6: 5-6). The trial court denied defense counsel‟s motion to re-open, stating that
it had ruled several times on the CPS record and that those records were not
relevant to the trial. (RR6: 6).
Jury Argument
During final jury argument, defense counsel sought to argue as follows:
“She‟s got a history of not being honest with law enforcement when it comes to
important matters in her life and responsibilities, and she didn‟t want CPS crawling
back over her.” (RR6: 42). The trial court, however, sustained the State‟s objection
to this argument and instructed the jury to disregard it. (RR6: 42, 43).
Relevant Law
The Sixth Amendment‟s right to confront witnesses includes the right to
cross-examine witnesses to attack their general credibility or to show their possible
31
bias, self-interest, or motives in testifying. U.S. CONST. amends. VI, XIV; TEX.
CONST. Art. I § 10; Davis v. Alaska, 415 U.S. 308, 316 (1974); Hammer v. State,
296 S.W.3d 555, 561 (Tex. Crim. App. 2009). Appellant recognizes that this right
is not unqualified and that a trial judge has discretion to limit the scope and extent
of cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986);
Hammer, 296 S.W.3d at 561. A trial court, however, violates a defendant‟s right of
confrontation if it improperly limits appropriate cross-examination. Carroll v.
State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996).
The law recognizes a distinction between an attack on the general credibility
of a witness and a more particular attack on credibility that reveals possible
“biases, prejudices, or ulterior motives of the witness as they may relate directly to
issues or personalities in the case at hand.” Davis, 415 U.S. at 316; Hammer, 296
S.W.3d at 562. The exposure of a witness‟ motivation in testifying is a proper and
important function of the constitutionally protected right of cross-examination.
Davis, 415 U.S. at 316; Hammer, 296 S.W.3d at 562.
The Texas Rules of Evidence contain a certain tension as to exactly when
and how a witness‟s credibility may be attacked. Under Rule 404(a)(3), a
defendant may always offer evidence of a pertinent character trait, such as
truthfulness, of any witness. TEX. R. EVID. 404(a)(3). But, under Rule 608, a
witness‟s general character for truthfulness may be shown only through reputation
32
or opinion testimony and may not be attacked by cross-examining him, or offering
extrinsic evidence, concerning specific prior instances of untruthfulness. TEX. R.
EVID. 608(b). An exception exists, however, if a witness may be cross-examined
on specific instances of conduct when those instances are used to establish his
specific bias, self-interest, or motive for testifying. Hammer, 296 S.W.3d at 563.
Counsel must first cross-examine the witness with the circumstances surrounding
the bias, interest, or motive, and, if the witness denies the circumstances or the
motive, the opponent may introduce extrinsic evidence to prove the motive or bias.
TEX. R. EVID. 613(b). The Rules of Evidence also permit the defense, as well as the
prosecution, to offer evidence of other acts of misconduct to establish a person‟s
motive for making a false allegation against the defendant. TEX. R. EVID. 404(b).
For example, in Hammer, the defendant presented evidence that the
complainant fabricated the sexual molestation accusation so that she did not have
to live with her father. 296 S.W.3d at 566. Evidence was also heard that the
complainant was generally angry with her father because he would not let her do
whatever she wanted; the defendant was allowed to cross-examine her generally
about her motive to falsely accuse her father. Id. at 566-67. The trial court,
however, excluded evidence that the complainant was particularly angry with her
father because he took her to the hospital for a sexual assault examination after she
had stayed out overnight. Id. at 567. The trial court excluded evidence that the
33
complainant told different stories about who she had sex with that night and that
the complainant became so upset with her father that she threatened to commit
suicide and was admitted to the state hospital. Id. The alleged offenses occurred
approximately a month after she was released from the state hospital. Id. The
Court of Criminal Appeals concluded that the excluded evidence strongly
supported the defensive theory that the complainant had a motive to falsely accuse
the defendant of sexual molestation. Id. Consequently, the Court found that the
evidence was admissible to prove the complainant‟s bias against the defendant and
to show her purported motive in falsely accusing him. Id.
Application of the Law to the Facts
Here, Warren‟s credibility was the entire case the State had against
Appellant. She was the only witness who testified that Appellant doused her with
an ignitable liquid and set that liquid on fire. (RR4: 49-60). While there was
testimony that her injuries were consistent with being set on fire, there was also
testimony that burns such as hers could come from being in proximity to a hot
burning fire.20 (RR5: 19, 61, 62).
Appellant‟s defense at trial was that the fire could have been set accidentally
and that the State could not prove that Appellant actually set Warren on fire. (RR5:
20
The fire investigator testified that he estimated the heat around the bed in the master bedroom
was “probably around the bed 16 to 1800 degrees at one point.” (RR5: 61).
34
108-109; RR6: 27-43). There was, of course, no dispute that Warren had been
using methamphetamine in the days leading up to the fire and that she had not slept
for a period of time. (RR4: 91; RR5: 75). An open package of cigarettes was
found by the bed and a lighter was found nearby, leading to an argument that
smoking in bed could have caused the fire as opposed to an intentional act on
Appellant‟s part. (RR5: 46, 53, 78). Indeed, Warren was specifically asked by
Holzheuser if she had been smoking a cigarette in bed and “she just wouldn‟t give
me an answer.” (RR4: 190; see also RR5: 58). There was no evidence of a
charcoal lighter fluid bottle or container being recovered at the apartment, though a
lighter was recovered. (RR6: 36).
Appellant recognizes that Warren admitted using drugs in the days and hours
preceding the fire. However, her actual drug use was not the issue. Rather, the
point defense counsel was seeking to make was that Warren had a motive to lie
and/or to omit telling the truth to law enforcement about that drug use and that she
also made inconsistent statements to law enforcement officers which differed from
her testimony at trial.
The defense had evidence in the CPS records that Warren had lied on prior
occasions about the extent of her drug usage to avoid negative consequences,
particularly where her children were concerned. Her potential motive to lie was
clear – accuse Appellant of intentionally setting the fire and deflect attention from
35
herself and her behavior. This was a legitimate line of questioning which defense
counsel should have been permitted to explore. Moreover, defense counsel had
questioned Warren on her honesty to CPS investigators and law enforcement and
Warren had insisted that she told the truth, (RR4: 91-94), which qualifies as
admissible impeachment evidence under Rule 613(b). The failure of the trial court
to allow defense counsel to cross-examine Warren on the contents of these records,
coupled with the trial court‟s (1) refusal to permit the defense to re-open for
additional cross-examination and (2) action sustaining the State‟s objection to jury
argument concerning Warren‟s history of deception to law enforcement, amounts
to an abuse of discretion which entitles Appellant to a reversal and to a new trial.
Point of Error 4, Restated
The trial court erroneously included the full definition of intent in the jury
charge. (CR1: 92).
Point of Error 5, Restated
The trial court erroneously included the full definition of knowledge in the jury
charge. (CR1: 92).
Prior to the charge being read to the jury, the prosecutor, after an off-the-
record discussion, asked for changes to the definitions in the charge of the culpable
mental states, i.e., intentional, knowing and reckless, to include the full statutory
definitions. (RR5: 132, 133). Defense counsel objected to the full definitions,
particularly to intentional and knowing, stating that aggravated assault was a
36
“result-oriented offense.”21 (RR5: 133, 134; see also RR5: 138). The trial court
granted the State‟s request and included the full definition of all culpable mental
states alleged in the indictment in the jury charge. (CR1: 92; RR5: 137).
The Jury Charge
The trial court instructed the jury as follows:
A person acts intentionally, or with intent, with respect to the nature
of his conduct or to a result of his conduct when it is his conscious
objective or desire to engage in the conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to the
nature of his conduct or to circumstances surrounding his conduct
when he is aware of the nature of his conduct or that the
circumstances exist. A person acts knowingly, or with knowledge,
with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result.
(CR1: 92). The application paragraphs did not limit the definitions of intent or
knowledge any further. (CR1: 95-96).
21
Defense counsel stated “I object to his objection.” (RR5: 133). The trial court replied: “You
object to his objection meaning that you want the definitions to remain as they are?” (RR5: 133).
Defense counsel replied “That‟s correct.” (RR5: 134). Interestingly, there is no reference in the
record as to how the definitions read before the State made its request. Nevertheless, the context
of the discussion is sufficient to preserve error as it is clear defense counsel objected to the
giving of the full statutory definitions of intent and knowledge in the jury charge and sought to
limit the definitions to the result of Appellant‟s conduct. See Clark v. State, 365 S.W.3d 333, 339
(Tex. Crim. App. 2012) (noting that an issue may be preserved without having been explicitly
stated if “there have been statements or actions on the record that clearly indicate what the judge
and opposing counsel understood the argument to be”).
37
Aggravated Assault is a Result-Oriented Crime
A person commits the offense of aggravated assault if he intentionally,
knowingly, or recklessly causes serious bodily injury to another. TEX. PENAL CODE
§ 22.02(a)(1). Aggravated assault, like murder, is a result-oriented offense.
Landrian v. State, 268 S.W.3d 532, 533, 537 (Tex. Crim. App. 2008); see also
Mendenhall v. State, 15 S.W.3d 560, 567 (Tex. App. – Waco 2000), aff’d on other
grounds, 77 S.W.3d 815 (Tex. Crim. App. 2002); Brooks v. State, 967 S.W.2d 946,
950 (Tex. App. – Austin 1998, no pet.).
In a jury charge for a result-oriented offense, the statutory definitions of the
applicable culpable mental states should be limited to the result of the prohibited
conduct. Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994). The jury
charge should define the mens rea terms of “intentionally” and “knowingly” in
accordance with the “result-oriented” definitions stated in the Texas Penal Code.
TEX. PENAL CODE § 6.03(a), (b). A charge which contains the full statutory
definitions is erroneous. Cook, 884 S.W.2d at 491.
Application of the Law to the Facts
In the case at bar, Appellant was indicted for intentionally, knowingly, and
recklessly causing serious bodily injury to Warren by setting her on fire. (CR1:
13). The jury was provided, over defense counsel‟s objections, with the full
definitions of intentionally and knowingly. (CR1: 92; RR5: 133, 134, 137).
38
Here, the definition portion of the jury charge defined the culpable mental
states with respect to the nature of conduct, the result of conduct, and the
circumstances surrounding of the conduct. The application paragraph in no way
limited these definitions or provided guidance to the jury. Rather, the jury was
permitted to find Appellant guilty if it found that he intentionally or knowingly
caused the prohibited result, i.e., serious bodily injury. The law as recited in the
application paragraphs thus failed to correctly point the jury to the appropriate
mental state as it did not limit the jury‟s consideration of the abstract definitions
given. In short, the charge allowed the jury to do that which the law did not: find
Appellant guilty of aggravated assault based on the nature of his conduct or on the
knowledge of the circumstances surrounding his conduct, rather than on intending
to cause or knowing the prohibited result, i.e., serious bodily injury. Chaney v.
State, 314 S.W. 3d 561, 567,-68 (Tex. App. – Amarillo 2010, pet. ref‟d). Hence,
the trial court clearly erred by giving over-inclusive definitions for “intentionally”
and “knowingly” in the jury charge.
Appellant Suffered “Some Harm” by the Erroneous Instructions
Where, as here, a defendant properly objects to a jury instruction, the error
requires reversal upon a finding of “some harm” to his rights. Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985). The harm caused by the error should
be considered (1) in light of the entire jury charge, (2) the state of the evidence,
39
including the contested issues and the weight of probative evidence, (3) the
arguments of counsel and (4) any other relevant information revealed by the record
of the trial as a whole. Id. at 171; see also TEX. CODE CRIM. PROC. art. 36.19.
The Entire Jury Charge
The charge in this case was complicated as it included not only multiple
definitions (CR1: 90-94), but also two lesser included offenses wherein the
differing elements were more subtle than the average lesser instruction. (CR1: 95-
97). In these same instructions, the jury was asked to consider findings of both
family violence and a deadly weapon. (CR1: 95-97). The potential for jury
confusion was quite high and additional guidance was certainly required.
The State of the Evidence
At first blush, the state of the evidence, including the contested issues and
the weight of probative evidence, might be seen to weigh in favor of a finding of
no harm. Clearly, Warren had suffered severe injuries and she testified that
Appellant doused her with lighter fluid and set the fire in which she was burned.
However, the State‟s case rested entirely on her credibility that these acts, if indeed
true, were the cause of her injuries, despite other possibilities contained in the
record. Indeed, the fire investigator tested that it was the bed that was set on fire
and that proximity to the fire could cause severe burns. (RR5: 34, 56, 61-62, 78).
Under the charge given, the jury could have convicted because it found that
40
Appellant intended to engage in the conduct (i.e., setting the fire on the bed), rather
than that he intended to cause the result (i.e., serious bodily injury to Warren), or
that he was aware of the nature of his conduct and the surrounding circumstances
rather than that he was aware that his conduct was reasonably certain to cause the
result.
The Arguments of Counsel
With respect to the arguments of counsel, the State concentrated it
arguments on the severity of the injuries suffered by Warren and Warren‟s
credibility. (RR6: 21-26, 43-50). Neither prosecutor attempted to guide the jury
with respect to the intricacies of the culpable mental state it needed to find before it
could return a conviction.
The Record as a Whole
The error in this case is further compounded by the State‟s evidence and
arguments that went beyond the allegations in the indictment. Specifically, the jury
heard evidence that Appellant may have hit Warren over the head when she tried to
escape from the burning bedroom. (RR4: 57, 58, 60, 72-73, 135, 137). Both
prosecutors argued that Appellant “burned her…beat her, and…left her to die.”
(RR6: 50; see also RR6: 26, 43, 45). Yet, the sole allegation in the indictment was
that Appellant caused serious bodily injury by “setting fire” to Warren. (CR1: 13).
The State did not allege that Appellant beat Warren or attempted to murder her.
41
Again, the jury lacked guidance as to exactly what needed to be found in order to
return a conviction.
In this case, the application paragraph authorized conviction if the jury
found that Appellant “intentionally or knowingly” caused serious bodily injury to
Warren. No further definition was provided. Thus, the application paragraph failed
to properly instruct the jury on the correct culpable mental state, and the abstract
definitions of intent and knowledge contained definitions inapplicable to an
aggravated assault prosecution. Under the facts of this case, it cannot be said that
Appellant did not suffer some harm under the Almanza standard. Appellant is
entitled to a reversal and to a new trial.
Point of Error 6, Restated
The trial court erroneously included the full definition of reckless in the jury
charge. (CR1: 92).
Appellant‟s arguments and authorities set forth under Points of Error 4 and
5, supra, are incorporated by reference herein.
While defense counsel objected to the full definition of reckless in the jury
charge, counsel recognized that the State “might make a case for giving the full
definition of reckless.” (RR5: 133, 134, 137). The State did not, however, attempt
to make a case for giving the full definition of reckless to the trial court. The court
overruled defense counsel‟s objections (RR5: 137) and the charge contained the
42
full definition of reckless:
A person acts recklessly, or is reckless, with respect to the
circumstances surrounding his conduct or the result of his conduct
when he is aware of but consciously disregards a substantial and
unjustifiable risk that the circumstances exist or the result will occur.
The risk must be such a nature and degree that its disregard constitutes
a gross deviation from the standard of care that an ordinary person
would exercise under all the circumstances, as viewed from the
actor‟s standpoint.
(CR1: 92); see also TEX. PENAL CODE § 6.03(c).
As previously noted, aggravated assault is a result-oriented crime. The law
regarding the appropriate definition of reckless in a result-oriented crime is far less
well developed than that regarding intent and/or knowledge. Indeed, to the best of
the undersigned attorney‟s research, the only court which has even partially
addressed the issue on the merits said as follows: “the distinction between „nature
of conduct‟ and „result of conduct‟ becomes blurred with respect to offenses based
upon a reckless” act. Chaney, 314 S.W. 3d at 569; see also Vallair v. State, No. 09-
11-00038-CR, 2011 Tex. App. LEXIS 7055 at * 8 (Tex. App. – Beaumont August
31, 2011 pet. ref‟d) (not designated for publication) (considering and rejecting a
claim of egregious harm from the full definition of reckless based on the specific
language of the application paragraph without providing a specific analysis).
However, it seems clear to Appellant that the same analysis applies to the
definition of reckless as to intent and knowledge since all three definitions
43
permitted a conviction in this case on a finding of acts done with a purpose other
than causing the result, i.e., serious bodily injury. Hence, the same result should
apply. Appellant is entitled to a reversal and to a new trial.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court
will reverse Appellant‟s conviction and remand for a new trial.
Respectfully submitted,
/s/ Katherine A. Drew
Lynn Richardson Katherine A. Drew
Chief Public Defender Assistant Public Defender
Dallas County, Texas State Bar No. 06117800
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Dallas, Texas 75207-4399
(214) 875-2360 (phone)
(214) 875-2363 (fax)
Kathi.Drew@dallascounty.org
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing brief was served on the
Dallas County Criminal District Attorney‟s Office (Appellate Section), 133 N.
Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207, by electronic
transmission and by hand delivery on March 18, 2015.
/s/ Katherine A. Drew
Katherine A. Drew
44
CERTIFICATE OF COMPLIANCE
I hereby certify that the word count in this document, which is prepared in
Microsoft Word 2010, is 10,843.
/s/ Katherine A. Drew
Katherine A. Drew
45 | 01-03-2023 | 09-28-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2919651/ | NUMBER 13-00-287-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________
RICARDO ENRIQUE HERNANDEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
___________________________________________________________________
On appeal from the 197th District Court of Cameron County, Texas.
O P I N I O N
Before Chief Justice Valdez and Justices Dorsey and Rodriguez
Opinion by Justice Rodriguez
Waiving his right to trial by jury, appellant, Ricardo Enrique Hernandez, pleaded guilty to the unlawful
possession of a controlled substance, namely cocaine, in the amount of four grams or more but less than
200 grams. The court found appellant guilty and assessed punishment at fourteen years confinement in
the Texas Department of Corrections. By three issues, appellant contends he was denied equal
protection, effective assistance of trial counsel, and his Fourth Amendment right against illegal search and
seizure. We affirm.
By his first issue, appellant contends he was denied equal protection when the State sought greater
punishment for not pleading guilty, thus, violating his Fourth and Fourteenth Amendment constitutional
rights. Appellant asserts that his poverty was the true basis for the State's decision to enhance his
charge. He claims the State's action indicates an institutional impartiality against the poor who are unable
to provide private counsel or to pay to investigate their own cases to their satisfaction. Appellant alleges
this is an institutional discrimination against indigents by the prosecution.
Bringing the above argument for the first time on appeal, appellant acknowledges that, in order to
preserve this issue for review, he should have presented to the trial court a timely motion or objection,
stating the specific grounds for the ruling desired. See Tex. R. App. P. 33.1(a). Our review of the record
finds no such objection or motion related to appellant's first issue. We conclude appellant has failed to
preserve this issue for our review. Nonetheless, appellant asserts that the specific grounds are apparent
from the context and any required objection should be excused. See id. at 33.1(a)(1)(A). We disagree.
The record reveals that on December 2, 1999, counsel was appointed and appellant was arraigned.
Appellant pleaded not guilty. The trial on the merits, originally set for January 18, 2000, was reset on
one occasion and continued by agreement on another. On February 8, 2000, the State filed its Notice of
Intention to Seek Enhanced (Repeat Offender) Range of Punishment. In support of his argument, appellant
refers us to the following statement made by the State to the trial court.
The case with [appellant], 99-CR-1255-C, that's the one which we talked to you Friday. That's the one I
need leave of court for a few days to go file the enhancement on him. [Appellant's trial counsel] has no
problem with that. She just needs her ten days' notice. [Appellant] does not want to plea at this point, so
we told him that we would seek the enhancement.
Appellant's counsel filed a motion to suppress evidence on February 25, 2000. However, on March 6,
2000, before the motion was heard and after the prosecution offered to recommend a sentence of twenty
years, appellant was re-arraigned and pleaded guilty to the offense charged. The trial court assessed
fourteen years rather than the recommended twenty, to run concurrently with another sentence. We
conclude the grounds appellant now argues are not apparent from the record. Accordingly, issue one is
overruled.
By his second issue, appellant contends he was denied effective assistance of counsel as provided for by
the Sixth Amendment. He maintains that because of his poverty he was denied the tools of effective
representation. Appellant asserts that had he not been indigent and had been able to afford "counsel of
choice," he could have "used his pocketbook as a counterweight against the threat which was made
against him." Furthermore, appellant complains that "he had no choice but to forgo the wisdom of
counsel to pursue her motion to suppress in exchange for a return of the status quo." Appellant
complains that "[t]he integrity of the attorney-client relationship [was] destroyed by the [State's] threat of
enhanced prosecution," because if he had "permitted his [c]ounsel to use those skills his [c]ounsel was
trained to exercise, he would [have been] slaughtered in the process."
While appellant couches this argument as ineffective assistance of counsel, we conclude it is solely an
extension of the equal protection arguments urged in his first issue. Applying the same analysis, we
conclude appellant has failed to preserve this issue for our review. See Tex. R. App. P. 33.1(a).
Accordingly, the second issue is overruled.
By his third issue, appellant complains of a violation of his Fourth Amendment right against illegal search
and seizure. Appellant acknowledges that by failing to urge his motion to suppress, he arguably has failed
to preserve error related to the alleged illegal search and seizure. See Tex. R. App. P. 33.1(a). Appellant
contends, however, that he has not waived his Fourth Amendment right because a new right, set out in
Bond v. United States, 529 U.S. 334, 339 (2000), applies in this case. See Selvage v. State, 816
S.W.2d 390, 391-92 (Tex. Crim. App. 1991); Ex Parte Sanders, 588 S.W.2d 383, 384 (Tex. Crim. App.
1979).
In Bond, the Supreme Court held that a border patrol agent's physical manipulation of a passenger's carry-on bag placed directly above his seat on a bus violated the Fourth Amendment. See id. Appellant argues
that under Bond, the officer's search of his person violated his Fourth Amendment rights. We conclude,
however, that nothing in Bond suggests we should extend this new principal regarding physical
manipulation of luggage to the facts of this case. The record shows that appellant was arrested after
officers responded to a disturbance. After being allowed to enter the house, an officer observed appellant
sitting at a table in front of cocaine paraphernalia, including a straw and razor blade. Appellant attempted
to hide and remove the items from the table. The officer also observed a bottle of Crown Royal on the
table. Appellant had red blood-shot eyes and slurred speech, was sweating profusely, and acted
extremely nervous. The cocaine was discovered through a pat-down of appellant's clothing. In the front
left pocket of appellant's pants, the officer felt a soft lump or bulge. In the pocket of the blue jeans, the
officer could see a small portion of a clear plastic bag containing a white powder. He removed the bag
and discovered it contained cocaine.
To invoke the protections of the Fourth Amendment, a person must show he had a "legitimate
expectation of privacy" established by demonstrating a subjective expectation that his activities would be
private, and he must show that his expectation was "one that society is prepared to recognize as
reasonable." Bond, 529 U.S. 334, 338 (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979)).
Appellant fails to provide us with any argument or authority to support his contention that Bond should
apply to the facts of this case. See Tex. R. App. P. 38.1(h) (brief must contain clear and concise
statement of argument for contentions made, with appropriate citations to authorities and record).
Accordingly, we conclude appellant waived any right that existed at the time of his conviction by failing to
urge his motion to suppress, and has waived any new right set out in Bond by failing to adequately brief
the argument. Appellant's third point is overruled.
The trial court's judgment is AFFIRMED.
NELDA V. RODRIGUEZ
Justice
Do not publish. Tex. R. App. P. 47.3.
Opinion delivered and filed
this 16th day of August, 2001. | 01-03-2023 | 09-11-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3856809/ | Argued April 14, 1944.
This appeal is from the order, of the court below quashing a writ of scire facias sur mechanics lien and striking the lien from the record.
The salient facts, which were agreed upon, may be summarized as follows. On March 18, 1941, Helen C. Nenoff, owner of a property on Ludwig Street, Pittsburgh, and Charles Papale, contractor, executed a contract for the erection of a dwelling which provided against the filing of mechanics' liens by subcontractors. McCrady-Rodgers Company, appellant herein, under and in pursuance to verbal requests of Papale, the principal contractor, made deliveries of building materials on the Nenoff property on 43 different dates beginning March 27, and ending September 10, 1941. Helen C. Nenoff, the owner, did not file her no-lien contract of record in the prothonotary's office until May 8, 1941. The first delivery by the claimant, McCrady-Rodgers Company, thereafter was May 19, 1941. On December 9, 1941, the claimant served written notice on the owner of its intent to file a mechanic's lien for materials delivered between March 27, and September 10, 1941. Later the lien was filed of record in the Court of Common Pleas of Allegheny County, a scire facias issued and an affidavit of defense filed wherein it was averred that the subcontractor's lien was invalid. The court sustained the position taken by the owners at the trial that under section 15 of the Mechanic's Lien Act of June 4, 1901, P.L. 431, as amended by the Act of April 24, 1903, P.L. 297, 49 P. S. § 72, the recording of the no-lien contract barred the filing of a lien for all deliveries of the claimant made 10 *Page 557
days after it was recorded; that the claimant had no right to a lien for deliveries made between March 27, and May 8, 1941, or prior to the recording of the no-lien contract as it did not, under section 8 of the Mechanic's Lien Act, supra, serve notice of its intention to file a claim within 3 months of the last material furnished for which, under section 15, a valid lien could be filed.
The appellant argues that the recording of the no-lien contract long after the several deliveries of materials, does not bar its lien; that when it examined the records of the prothonotary's office, which did not disclose the existence of a no-lien contract on the date of the first delivery, it was not required to make daily examinations of those records. Subcontractors need not make repeated and continuous examinations of the prothonotary's records to protect themselves; that would be an unreasonable requirement not intended by the legislature. Furthermore, if that were so the owner and principal contractor would be in a position to perpetrate a fraud upon subcontractors and material men.
The Mechanic's Lien Act of 1901, supra, as amended is in effect a codification of the Mechanic's Lien Law as it existed at that time. It must be assumed that the legislature had complete knowledge of the Act of 1855, P.L. 238, now repealed, which was passed to protect those furnishing materials and doing labor after the decision was handed down in Phillips v. Duncan, 5 Clark, 358, which held that a contractor who purchased lumber as he needed it made a new contract at every purchase and that the law barred the filing of his claim for any purchases more than 6 months old. That is plainly pointed out in Singerly v. Doerr etal., 62 Pa. 9.
Although the materials were ordered and delivered at different dates, under section 12 of the Act of 1901, supra, 49 P. S. § 54, we have a single undertaking and the items furnished have the same unity as if furnished *Page 558
under one contract. This section gave the right to the claimant to file a single claim for all the materials he delivered to the owner. It expressly stated that if labor or materials are furnished continuously in the erection of a building "though furnished under more than one contract" the claimant may sign a single claim "with the same effect as if furnished continuously under a single contract." That the materials were "continuously" furnished is conceded by the owner in the stipulation of facts. The language is so plain in that section, as well as in the Act of 1855, supra, that the decisions thereunder have uniformly held that if work or materials are furnished continuously in the erection of a building, though under separate contracts or verbal orders, as in this case, and a claim is filed within 6 months of the last items delivered it is just as effective as though the claimant had a definite contract to furnish all the labor or materials: Singerly v. Doerr et al., supra; Hofer's Appeal,116 Pa. 360, 9 A. 441; Felheim v. Perry Brewing Company, 63 Pa. Super. 561.
Section 15 provides in part as follows: "If the legal effect of the contract between the owner and the contractor is, that no claim shall be filed by any one, such provision shall be binding; but the only admissible evidence thereof, as against a sub-contractor, shall be proof of actual notice thereof to him, before any labor or materials furnished by him; or proof that a duly written and signed contract to that effect has been filed in the office of the prothonotary of the court of common pleas of the county or counties where the structure or other improvement is situate, prior to the commencement of the work upon the ground, or within ten days after the execution of the principal contract or not less than ten days prior to the contract with theclaimant;. . . . . ." (Italics supplied.) The filing of a no-lien contract under any one of the three conditions mentioned *Page 559
is sufficient to defeat a lien as the wording of the act is in the alternative and not the conjunctive: Bennar v. CentralMausoleum Co., 304 Pa. 569, 156 A. 239.
Section 15 must not be construed independently, but be considered in connection with section 12 under the Statutory Construction Act of May 28, 1937, P.L. 1019, Article IV, § 51, 46 P. S. § 551. Actual notice of the no-lien contract was not given the subcontractor before he entered into a contract with the contractor Papale or to the furnishing of the materials, nor was there a compliance with the other stipulations in section 15, so that the contract in this case relates back to the initial delivery. The principal contract was not binding therefore, on this claimant.
It seems quite obvious that the policy of our present Mechanic's Lien Law is that an owner should be required to record promptly his no-lien contract. It would be a hardship to require a material man, who ordinarily does not enter into any formal, definite contract, to be deprived payment for the materials furnished as in this case, if there is a no-lien contract between the owner and principal contractor, of which he has no express notice and is unrecorded. Ordinarily materials are procured as needed and as the work progresses, by giving informal, verbal, or written orders. We think the injustice of the construction given sections 12 and 15 of this act by the court below, as heretofore noted, is apparent from the results reached in this case; that it is directly in conflict with the policy of section 12 and decisions thereunder permitting a claimant to file a notice within 3 months of the last delivery, though made under a series of separate contracts. No decisions have been cited supporting the result reached. Bennar v. Central Mausoleum Company, supra, which is relied upon, does not sustain the lower court's interpretation of our Mechanic's Lien Law.
The appellant also attacked the constitutionality of *Page 560
the Act of 1935, P.L. 168, which authorizes the court of common pleas in counties of the second class to keep two separate indexes or dockets for judgments or liens; one to be known as the "general" and the other "in rem", alleging that it offends sections 3 and 6 of the Constitution of Pennsylvania and that as the no-lien contract appeared in the in rem docket only, it had no legal notice of the contract. It is unnecessary to pass upon that question in view of our holding that the court below was not warranted in striking off claimant's lien.
Judgment is reversed, the lien is reinstated and judgment is directed to be entered for plaintiff on the scire facias unless other legal cause is shown to the contrary. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4523840/ | In the United States Court of Federal Claims
KUNTA REDD,
Plaintiff,
No. 19-cv-1167
v.
Filed: April 8, 2020
THE UNITED STATES,
Defendant.
ORDER
Plaintiff pro se Kunta Redd brings this action against the United States pursuant to 28
U.S.C. § 1495, seeking money damages for his alleged unjust conviction and wrongful
imprisonment. Complaint (Compl.) at 1-3. In addition, Plaintiff filed a Motion for Leave to
Proceed in forma pauperis. See ECF No. 6. On October 11, 2019, Defendant timely moved to
dismiss Plaintiff’s Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United
States Court of Federal Claims (Rules). See Def. Motion to Dismiss (ECF No. 10) (Def. Mot.).
On February 27, 2020, this case was transferred to the undersigned judge pursuant to Rule 40.1(c).
See ECF No. 17. This Court has considered all of the parties’ filings and arguments in ruling on
the parties’ motions. For the following reasons, this Court grants Plaintiff’s Motion for Leave to
Proceed in forma pauperis (ECF No. 6) and grants Defendant’s Motion to Dismiss (ECF No. 10)
pursuant to Rules 12(b)(1), 12(h)(3), and 12(b)(6).
BACKGROUND
On August 18, 2008, Plaintiff pleaded guilty to conspiracy to distribute and possess with
the intent to distribute fifty grams or more of crack cocaine and a quantity of cocaine, pursuant to
21 U.S.C. § 846. See Compl. Exhibit (Ex.) 1 at 2, 12; Plaintiff’s Response to Motion to Dismiss
(ECF No. 13) (Pl. Resp.) at 9. On July 8, 2009, Plaintiff was sentenced to 324 months
imprisonment and five years of supervised release. See Compl. Ex. 1 at 7; Pl. Resp. at 10. On
January 17, 2017, President Obama commuted Plaintiff’s sentence to 188 months through an
executive grant of clemency. See Compl. Ex. 1 at 5, 19-20; Pl. Resp. at 10. The grant of clemency
also left the five-year term of supervised release intact. See id. Subsequently, Plaintiff has
remained incarcerated pursuant to his 2008 guilty plea and has unsuccessfully sought further
reduction of his sentence. See Order, United States v. Redd, No. 7:08-cr-43-D (E.D.N.C. April 3,
2020) (Dkt. No. 170); see also United States v. Redd, 776 F. App'x 112, 113 (4th Cir. 2019) (per
curiam), cert. denied, 140 S. Ct. 511 (2019). Plaintiff is currently incarcerated in federal prison
on the charges he alleges resulted in his wrongful imprisonment. See Compl. at 2 & Ex. 1; Pl.
Resp. at 1, 4; Pl. Resp. to Order to Show Cause (ECF No. 14) at 1-2.
Plaintiff’s allegations primarily relate to his contention that the trial court and courts of
appeal unfairly refused to resentence him to a lesser term of imprisonment. Although Plaintiff
states that his 2008 guilty plea and sentence were “reversed and set aside on the ground [that he
is] not guilty,” he later clarifies this statement, contending that the courts should have found him
not guilty under the Due Process Clause of the Fifth and Fourteenth Amendment. Compl. at 2; Pl.
Resp. to Order to Show Cause at 1. Plaintiff further asserts he has been pardoned on grounds of
innocence by President Obama, despite that the filings he references in his Complaint and exhibits
attached thereto, including Plaintiff’s pleadings before another court, unequivocally demonstrate
that his sentence of imprisonment was reduced through a presidential commutation and that he did
not receive a pardon. Compl. at 1 & Ex. 1 at 5, 19-20; Pl. Resp. at 10; see also Def. Mot. at 2
(Defendant “recognizes that President Obama commuted Mr. Redd’s sentence”). Additionally,
2
Plaintiff accuses his sentencing judge and two prosecutors of “misconduct and neglect and
prosecution of corruption extortion racist Discrimination unprofessional Racketeering improper
vouching creditability statement from . . . informant breach plea agreement.” Compl. at 1-2. He
further contends that his plea agreement is invalid because his public defender allegedly signed it
in a church parking lot instead of the courtroom and that act was unconstitutional. Compl. at 3.
Additionally, the Plaintiff contends that his sentencing judge, the chief judge, and the clerk of court
for U.S. Court of Appeals for the Fourth Circuit allegedly engaged in discriminatory and tortious
behavior and violated the Fair Sentencing Act of 2010, 124 Stat. 2372. Pl. Resp. at 1; see also Pl.
Resp. to Order to Show Cause at 2. As relief, Plaintiff seeks between $300,000 and $1,200,000 in
damages. Compl. at 1.
DISCUSSION
I. In Forma Pauperis Motion
As an initial matter, Plaintiff, who is incarcerated, filed a Motion for Leave to Proceed in
forma pauperis in this matter, pursuant to 28 U.S.C. § 1915. Along with this motion, Plaintiff has
submitted documentation which satisfies the statute’s requirements. See also 28 U.S.C. § 2513(d)
(permitting plaintiff to prosecute 28 U.S.C. § 1495 claim in forma pauperis). Accordingly, this
Court grants Plaintiff’s Motion for Leave to Proceed in forma pauperis (ECF No. 6) in this matter.
In accordance with 28 U.S.C. § 1915(b), Plaintiff must still pay the entire filing fee, but is now
entitled to do so through periodic payments from his inmate trust account.
II. Motion to Dismiss
Defendant moves to dismiss Plaintiff’s Complaint on the grounds that (1) Plaintiff fails to
state a claim under which relief may be granted under 28 U.S.C. § 1495 because he cannot meet
the related requirements of 28 U.S.C. § 2513, and (2) this Court lacks subject matter jurisdiction
3
to consider Plaintiff’s claims concerning denial of his post-conviction relief and complaints against
various court officials because those claims do not relate to money mandating provisions of law.
Def. Mot. at 1-2; Def. Reply at 1-2.
In considering Defendant’s Motion to Dismiss, the Court “accepts as true all
uncontroverted factual allegations in the complaint and construes them to the light most favorable
to the plaintiff.” Estes Express Lines v. United States, 739 F.3d 689, 692 (Fed. Cir. 2014) (citation
omitted). Like the Plaintiff here, a pro se litigant’s submissions are held to “less stringent standards
than [those] drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, regardless
of the plaintiff’s pro se status, “[t]o survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570); see Pieczenik v. Bayer Corp.,
474 F. App’x 766, 770 (Fed. Cir. 2012). Additionally, a plaintiff’s “[f]actual allegations must be
enough to raise a right of relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (requiring plaintiff to plead “enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence of [his claim]”). The Court’s consideration of a motion to dismiss
is limited to facts stated on the face of the complaint, in documents appended to the complaint or
incorporated in the complaint by reference, and to matters of which judicial notice may be taken.
See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (citation omitted). “In
ruling on a 12(b)(6) motion, a court need not ‘accept as true allegations that contradict matters
properly subject to judicial notice or by exhibit.’” Secured Mail Sols. LLC v. Universal Wilde,
Inc., 873 F.3d 905, 913 (Fed. Cir. 2017) (quoting Anderson v Kimberly-Clark Corp., 570 F. App’x
927, 931 (Fed. Cir. 2014) (citation omitted)). Additionally, the leniency afforded to pro se litigants
with regard to pleading formalities does not relieve them of meeting the jurisdictional requirements
4
of this Court. Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987). A
plaintiff must establish jurisdiction by a preponderance of the evidence. Taylor v. United States,
303 F.3d 1357, 1359 (Fed. Cir. 2002) (citation omitted).
The United States Court of Federal Claims is a court of limited jurisdiction. Through
enactment of the Tucker Act, which acts as a waiver of sovereign immunity, Congress has placed
within this Court’s jurisdiction “any claim against the United States founded either upon the
Constitution, or any act of Congress or any regulation of an executive department, or upon any
express or implied contract with the United States, or for liquidated or unliquidated damages in
cases not sounding in tort.” 28 U.S.C. § 1491(a); see United States v. Mitchell, 463 U.S. 206, 212
(1983). The Tucker Act is a jurisdictional statute and does not create any enforceable right against
the United States on its own. See Mitchell, 463 U.S. at 216; United States v. Testan, 424 U.S. 392,
298 (1976); Todd v. United States, 386 F.3d 1091, 1093-94 (Fed. Cir. 2004). In order to fall within
the Tucker Act’s waiver of sovereign immunity, a plaintiff’s claim for money damages against the
United States must be based upon an express or implied contract, or a money-mandating
constitutional provision, statute, or regulation. See 28 § U.S.C. 1491(a); Mitchell, 463 U.S. at 216-
18. Specifically, a plaintiff “must demonstrate that the source of substantive law he relies upon
‘can fairly be interpreted as mandating compensation by the Federal Government.’” Mitchell, 463
U.S. at 216 (1983) (quoting Testan, 424 U.S. at 400 (citation omitted)).
A. Plaintiff’s Claim Pursuant to 28 U.S.C. § 1495
This Court has jurisdiction to “render judgment upon any claim for damages by any person
unjustly convicted of an offense against the United States and imprisoned.” 28 U.S.C. § 1495.
However, a plaintiff bringing suit pursuant to 28 U.S.C. § 1495 must satisfy the requirements of
5
28 U.S.C. § 2513. See 28 U.S.C. 2513(a); Castro v. United States, 364 F. App’x 619, 620 (Fed.
Cir. 2010). To satisfy the conditions of 28 U.S.C. § 2513, a plaintiff “must allege and prove” that:
(1) His conviction has been reversed or set aside on the ground that he is not guilty
of the offense of which he was convicted, or on new trial or rehearing he was
found not guilty of such offense, as appears from the record or certificate of the
court setting aside or reversing such conviction, or that he has been pardoned
upon the stated ground of innocence and unjust conviction and
(2) He did not commit any of the acts charged or his acts, deeds, or omissions in
connection with such charge constituted no offense against the United States,
or any State, Territory or the District of Columbia, and he did not by misconduct
or neglect cause or bring about his own prosecution.
28 U.S.C. § 2513(a).
Further, Section 2513 requires:
(b) Proof of the requisite facts shall be by a certificate of the court or pardon wherein
such facts are alleged to appear, and other evidence thereof shall not be received [,
and]
(c) No pardon or certified copy of a pardon shall be considered by the United States
Court of Federal Claims unless it contains recitals that the pardon was granted after
the applicant had exhausted all recourse to the courts and that the tie for any court
to exercise its jurisdiction had expired.
28 U.S.C. §§ 2513(b), (c). Plaintiff does not, and cannot, meet these requirements.
Viewing Plaintiff’s allegations in the most favorable light and holding Plaintiff pro se’s
pleadings to a more lenient standard, Plaintiff has nevertheless failed to state a claim that he has,
or can, meet the requirements of 28 U.S.C. § 1495 and 28 U.S.C. § 2513. Specifically, Plaintiff is
not entitled to relief because he cannot show that he received a pardon “granted upon the stated
ground of innocence and unjust conviction.” 28 U.S.C. § 2513(a)(1); see 28 U.S.C. § 2513(b);
Bobka v. United States, 133 Fed. Cl. 405, 410 (2017). Indeed, Plaintiff’s Complaint and Response
to Defendant’s Motion to Dismiss state precisely the opposite. Despite receiving a reduction of
his sentence via presidential commutation, Plaintiff remains imprisoned - though he contends
6
unfairly so - for the offense to which he pleaded guilty in 2008. See Compl. at 1-2 & Ex. 1 at 20;
Pl. Resp. at 1, 4.
Although Plaintiff has attached a January 17, 2017 letter from President Obama commuting
Plaintiff’s sentence, the commutation does not meet Section 2513’s requirements. See Compl. Ex.
1 at 20. President Obama’s 2017 commutation reduced Plaintiff’s sentence and is not a pardon,
much less one issued on the “ground of innocence and unjust conviction.” 28 U.S.C. § 2513(a)(1).
The language of Section 2513 is clear that Plaintiff must show that he received a pardon, not a
commutation. 28 U.S.C. §§ 2513(a)(1), (b). Nor does the commutation state that Plaintiff was
pardoned “upon the stated ground of innocence and unjust conviction.” See 28 U.S.C. §
2513(a)(1); see also Humphrey v. United States, 60 F. App’x 292, 295 (Fed. Cir. 2003) (per
curiam). To the contrary, the 2017 commutation letter unequivocally states that the commutation
“will not result in [Plaintiff’s] immediate release,” and that Plaintiff “will be required to serve
additional time to reflect the seriousness of [his] offense.” See Compl. Ex. 1 at 20.
Additionally, the docket sheet and other court documents attached to Plaintiff’s Complaint
and incorporated by reference into Plaintiff’s Response, as well as a review of the publicly
available docket 1, do not indicate that Plaintiff was ever exonerated for his crime. See 28 U.S.C.
§ 2513(a)(1). To the contrary, these attachments indicate that courts have uniformly upheld the
U.S. District Court’s acceptance of Plaintiff’s 2008 guilty plea. See United States v. Redd, 384 F.
App'x 279, 281 (4th Cir. 2010) (finding that the district court did not err in accepting Mr. Redd’s
guilty plea where “Redd did not credibly assert his legal innocence”); United States v. Redd, 519
F. App'x 173 (4th Cir. 2013) (dismissing Plaintiff’s appeal from denial of post-conviction relief),
1
As noted supra, this Court may take judicial notice of publicly available documents in ruling upon a
Rule 12(b)(6) motion to dismiss. See Tellabs, 551 U.S. at 322; Secured Mail Sols. 873 F.3d at 913
(citations omitted).
7
cert. denied, 571 U.S. 911 (2013); United States v. Redd, 627 F. App'x 228, 229 (4th Cir. 2015)
(affirming the district court’s order denying Plaintiff’s motion to reduce his sentence); Redd v.
Wilson, No. 3:17-cv-393, 2017 WL 7805591, at *2 (E.D. Va. Sept. 14, 2017) (dismissing petition
for writ of habeas corpus) aff'd, 703 F. App'x 196 (4th Cir. 2017); United States v. Redd, 776 F.
App'x 112, 113 (4th Cir.) (per curiam) (denying petition seeking sentence reduction), cert. denied,
140 S. Ct. 511 (2019).
Accordingly, Plaintiff’s unjust conviction and wrongful imprisonment claim pursuant to
28 U.S.C. § 1495 must be dismissed under Rule 12(b)(6) for failure to state a claim upon which
relief may be granted.
B. Plaintiff’s Remaining Allegations
To the extent that Plaintiff brings claims relating to purported violations of the Due Process
Clause of the Fifth and Fourteenth Amendments, allegations sounding in habeas corpus,
allegations concerning tortious conduct, or otherwise seeks relief against individual federal
officials, this Court clearly lacks jurisdiction to hear those claims. See Compl. at 1-3; Pl. Resp. at
1, 4; Pl. Resp. to Order to Show Cause at 2. The Tucker Act waives sovereign immunity for certain
claims against the United States that are founded upon the United States Constitution or federal
laws. 28 U.S.C. § 1491(a)(1). However, to come within this sovereign immunity waiver, the
constitutional and statutory provisions at issue must mandate the payment of money for their
violation. See Mitchell, 463 U.S. at 218; Todd, 386 F.3d at 1094. As the Due Process Clause of
the Fifth and the Fourteenth Amendments are not money-mandating, Plaintiff’s related claims
concerning alleged due process violations must be dismissed for lack of jurisdiction pursuant to
Rule 12(b)(1) and 12(h)(3). See Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013)
(“The law is well settled that the Due Process clauses of both the Fifth and Fourteenth Amendments
8
do not mandate the payment of money and thus do not provide a cause of action under the Tucker
Act.”) (citing Le Blanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995)); see also Drake v.
United States, 792 F. App’x 916, 920 (Fed. Cir. 2019) (per curiam) (same). Additionally,
Plaintiff’s claims sounding in habeas corpus, or other claims seeking to overturn his conviction or
reduce his sentence of imprisonment, are beyond the jurisdiction of this Court, and must similarly
be dismissed. See Compl. at 1-3; Pl. Resp. at 1, 4; Pl. Resp. to Order to Show Cause at 1-2; see
Curry v. United States, 787 F. App’x 720, 723 (Fed. Cir. 2019); Canuto v. United States, 651 F.
App’x 996, 997 (Fed. Cir. 2016); Joshua v. United States, 17 F.3d 378, 379 (Fed. Cir. 1994); see
also Sykes v. United States, 105 Fed. Cl. 231, 233 (2012) (“In acting on a claim predicated upon
Sections 1495 and 2513, this court ‘does not have the power to review and overturn convictions
or to review in detail the facts surrounding a conviction or imprisonment.’”) (quoting Zakiya v.
United States, 79 Fed. Cl. 231, 235-35 (2007), aff’d, 277 F. App’x 985 (Fed. Cir. 2008)).
Finally, to the extent that Plaintiff seeks relief related to the purportedly tortious actions of
individual federal officials, such as federal judges, court employees, public defenders, or
prosecutors, this Court lacks jurisdiction to consider those claims, and such claims must be
dismissed pursuant to Rule 12(b)(1) and 12(h)(3). See Compl. at 2-3; Pl. Resp. at 1. It is well
established that under the Tucker Act, “jurisdiction is confined to the rendition of money
judgments in suits brought for that relief against the United States . . . [and] relief sought [against
parties other than the] United States . . . must be ignored as beyond the jurisdiction of the court.”
United States v. Sherwood, 312 U.S. 584, 588 (1941); see Curry, 787 Fed. App’x at 722-23. It is
similarly axiomatic that Congress expressly excluded claims for compensation based in tort from
this Court’s jurisdiction, and accordingly any of Plaintiff’s claims sounding in tort must also be
9
dismissed pursuant to Rule 12(b)(1) and Rule 12(h)(3). See 28 U.S.C. § 1491(a); Rick’s Mushroom
Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008).
CONCLUSION
For the foregoing reasons, this Court GRANTS Plaintiff’s Motion for Leave to Proceed in
forma pauperis (ECF No. 6). This Court also GRANTS Defendant’s Motion to Dismiss (ECF
No. 10). Because this Court finds that Plaintiff cannot plead any facts that would plausibly state
a claim for relief, this Court dismisses the Complaint without leave to replead. The Clerk of the
Court is directed to mark this case as closed.
SO ORDERED.
s/Eleni M. Roumel
ELENI M. ROUMEL
Judge
Dated: April 8, 2020
10 | 01-03-2023 | 04-09-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3089993/ | In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-11-0156-CR
________________________
ANDRE NATHANIEL HAMILTON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 27[TH] District Court
Bell County, Texas
Trial Court No. 63,969, Honorable Joe Carroll, Presiding
April 17, 2013
OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Following a plea of not guilty, Appellant, Andre Nathaniel Hamilton, was convicted by a jury of capital murder and sentenced to life imprisonment without parole. By two issues, he maintains (1) the evidence is legally insufficient to support his conviction when the indictment alleges retaliation against a person other than the victim of the murder as the aggravating circumstance and (2) the trial court erred in admitting the State's computer generated animation. We affirm.
Background Facts
On Friday, August 22, 2008, Constable Thomas Prado was at the Emerald Green Apartments searching for Derrick Lewis. The apartment manager, Jamie Lujan, and a maintenance worker, Mark Jimenez, informed Prado that Lewis could be located at apartment 214 of the Beverly Arms Apartments, an adjoining complex. Although Lewis was not at that apartment, Jimenez later pointed out a vehicle driven by Appellant, in which Lewis might be a passenger. Prado waved down the vehicle. Although Lewis was not in the vehicle, a passenger, Montreal Wright, was arrested on an outstanding warrant and for carrying a pistol. According to witnesses, Lewis was extremely upset over Wright's arrest.
When Jimenez left work that day, he was at a stop sign when four males made threatening gestures towards him. He called Lujan and told him he would not be coming back to work. Lujan assured him it would be "okay" to return and he did so the following Monday. After returning to work, Jimenez noticed an individual, later identified as Lewis, following him around for a few days while he was picking up the grounds. Because Appellant, Lewis and others were angry with Jimenez for pointing out Appellant's vehicle, which had led to Wright's arrest, they conspired to "get" Jimenez. There was conflicting testimony on whether "getting" Jimenez meant shooting him or beating him.
On August 28, 2008, Jimenez arrived at work at 7:50 a.m. and Lujan was already in the office. They noticed a male, later identified as Anthony Thomas, walk by the office. Thomas had been previously banned from the apartment complex. Jimenez left the office to do some work at a nearby complex. Approximately twenty minutes later, he heard an ambulance. When he returned to the apartment complex, he observed the ambulance as well as police cars. He was told the manager had been shot and saw Lujan being carried out on a stretcher. Lujan suffered five gunshot wounds and on September 1, 2008, he died as a result of multiple gunshots.
Yolanda Evans, a tenant at the Beverly Arms Apartments, testified that she was looking out her window on the morning of the shooting when she observed Appellant, Lewis and Thomas cover their faces with bandanas while standing outside the apartment manager's office at the Emerald Green complex. Soon thereafter, she heard gunshots, followed by three individuals running from the area. Lakeisha Davis, a tenant at the Beverly Arms, testified she heard a noise and looked out her window and saw Appellant, Lewis and Thomas running up the stairs of the Beverly Arms complex.
Thomas was carrying a black bag. Another witness testified that she was working on her car when she heard shots and later saw the suspects run into apartment number 112 where Thomas's cousin lived. Thomas's cousin testified that Appellant and Lewis entered his apartment shortly after hearing gunshots and Thomas showed up not long thereafter.
Numerous officers arrived at the scene. After interviewing witnesses, they determined the suspects were holed-up in an apartment at the Beverly Arms. After SWAT arrived, an officer trained as a negotiator was able to convince the three suspects to come out of the apartment and they were arrested. They were identified as Appellant, Lewis and Thomas and they were each subsequently charged with capital murder for causing the death of Lujan while in the course of retaliating against Jimenez.
On the morning of the shooting, Inga McCook, Thomas's girlfriend, was cleaning when she heard a boom similar to a dumpster lid closing. She went to look out her window and saw Thomas carrying a black bag. Suddenly, she realized that Thomas was in her apartment and he told her, "[t]hey shot him. They shot . . . the [racial slur]." She ordered him out of her apartment. When he left her apartment, Thomas did not have the black bag on his person.
McCook also testified that Thomas called her from jail to tell her he had hidden the black bag in a Christmas tree box in her bedroom closet. She found the bag, discovered it had two guns inside and drove down a country road to dispose of them. When she returned to her apartment, investigators were waiting to question her and she eventually led them to the area where she had tossed the guns.
Appellant, Lewis and Thomas were each tested for gunshot primer residue. An expert testified that a classic primer mixture consists of three compounds and a particle of primer residue can contain one, two or all three of those compounds. He further testified that a particle that contains all three compounds usually results from the discharge of a firearm. The policy of the Texas Department of Public Safety is that any gunshot primer residue collected more than four hours after a shooting is usually not analyzed because too much time has passed. An exception is made when a district attorney requests testing. However, under those circumstances, interpretations are not drawn from the results.
In the underlying case, Appellant's test was taken outside the four hour window. Notwithstanding the time frame, the results were consistent with Appellant having fired a weapon or having been in the proximity to or touching a weapon that had been fired. Due to the time frame issue, the expert did not draw any conclusions from those results. Lewis's test, however, was obtained within the four hour window and his results were also consistent with having recently fired a weapon, being nearby when a weapon was fired or contacting some surface with gunshot primer residue on it. Results from the gunshot residue collected from Thomas, which was also timely obtained, did not show any gunshot primer residue particles on his hands, but some was detected on the pocket of his shorts.
Thomas originally agreed to testify against Appellant and Lewis at their trials in exchange for an offer to plead guilty to a lesser included offense. Following this development, the State moved to jointly try Appellant and Lewis. The trial court granted that motion and they were subsequently tried together in the same proceeding. Eventually however, at Thomas's plea hearing, he withdrew from his plea bargain and instead entered a plea of guilty to the offense of capital murder. He testified that he initiated the shooting and "it just wouldn't seem right blaming two individuals that absolutely had, you know, nothing to do with the whole situation, sir." At trial, an excerpt from Thomas's plea hearing was offered into evidence; however, the State's objection was sustained. It was subsequently introduced by the defense for purposes of appeal.
Analysis
Issue One - Legal Sufficiency of the Evidence
By his first issue, Appellant maintains the evidence is legally insufficient to support his conviction for capital murder when the indictment alleges retaliation against a person other than the victim of the murder as the aggravating circumstance elevating the offense of murder to capital murder. We disagree.
The only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense the State is required to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 33 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010). Under that standard, in assessing the sufficiency of the evidence to support a criminal conviction, this Court considers all the evidence in the light most favorable to the verdict and determines whether, based on that evidence and reasonable inferences to be drawn therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 912. We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1131, 120 S. Ct. 2008, 146 L. Ed. 2d 958 (2000). We must give deference to the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence and to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007).
A person commits capital murder if he commits murder as defined in section 19.02(b)(1) and intentionally commits the murder in the course of committing or attempting to commit, among other offenses, the offense of retaliation. Tex. Penal Code Ann. § 19.03(a)(2) (West Supp. 2012). A person commits murder if he "intentionally or knowingly causes the death of an individual." Id. at § 19.02(b)(1). See Adames v. State, 353 S.W.3d 854, 861-62 (Tex.Crim.App. 2011), cert. denied, 2012 U.S. LEXIS 2268, 132 S. Ct. 1763, 182 L. Ed. 2d 533 (2012). A person commits retaliation if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service or status of another as an informant. Tex. Penal Code Ann. § 36.06(a)(1)(A) (West 2011). An informant is a person who has communicated information to the government in connection with any governmental function. Id. at 36.06(b)(2).
By amended indictment, Appellant was charged with intentionally causing the death of Jamie Lujan . . . in the course of committing or attempting to commit the offense of retaliation against Mark Jimenez. The charge instructed the jury on transferred intent, the law of parties and criminal responsibility for conduct of another as follows:
[a] person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated or risked is that:
(1) a different offense was committed; or
(2) a different person or property was injured, harmed or otherwise affected.
A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both.
Each party to an offense may be charged with commission of the offense.
A person is criminally responsible for an offense committed by the conduct of another if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.
If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
See Tex. Penal Code Ann. §§ 6.04(b), 7.01(a) & (b), 7.02(a)(2) & (b) (West 2011).
Conspiracy requires an agreement with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and the person or one or more of them performs an overt act in pursuance of the agreement. See Tex. Penal Code Ann. § 15.02(a) (West 2011). The essential element of conspiracy is the agreement to commit the crime. Williams v. State, 646 S.W.2d 221, 222 (Tex.Crim.App. 1983). A person may be guilty of conspiracy by doing nothing more than agreeing to participate in the conspiracy so long as another co-conspirator does some overt act in furtherance of the conspiracy. Walker v. State, 828 S.W.2d 485, 487 (Tex.App. -- Dallas 1992, pet. ref'd). However, if the evidence shows there was no actual, positive agreement to commit a crime, the evidence is insufficient to support a conviction for conspiracy. Brown v. State, 576 S.W.2d 36, 43 (Tex.Crim.App. [Panel Op.] 1978). Commission of the underlying substantive offense is not an essential element of conspiracy. McCann v. State, 606 S.W.2d 897, 898 (Tex.Crim.App. [Panel Op.] 1980). Since direct evidence of intent is rarely available, the existence of a conspiracy can be proven through circumstantial evidence. Rhoten v. State, 299 S.W.3d 349, 351 (Tex.App. -- Texarkana 2009, no pet.).
Nothing in section 19.03(a)(2) of the Penal Code requires that the intended victim of the aggravating offense must also be the murder victim. See Chirinos v. State, 2011 Tex.App. LEXIS 147, at *14 n.3 (Tex.App. -- Houston [14th Dist.] 2011, pet. ref'd). Appellant does not cite this Court to any authority holding otherwise and we see no reason to read such a requirement into the statute.
Jimenez provided information to Constable Prado, a government official, on the possible whereabouts of Lewis. Thus, he falls within the definition of an informant for purposes of the retaliation statute. Jimenez testified that he felt threatened when four individuals made gestures to him when he left work the same day he gave that information to Prado. McCook, who lived in an upstairs apartment at the Beverly Arms, testified that Thomas told her Appellant and Lewis blamed Jimenez for Wright's arrest and were plotting against him. Lakeisha Davis testified that she told police two months after the shooting that Appellant, Lewis, Thomas and others were going to "get" the maintenance man [Jimenez]. Although she wavered in her testimony before the jury on whether Appellant was present during the conversation, she did testify that the group talked about shooting the maintenance man.
Byronishia Moore, Lewis's girlfriend and a tenant at the Beverly Arms, testified that she and Lewis went to a motel room with a group a few days after Wright was arrested. While there, they engaged in a conversation about getting the maintenance man. She denied any conversation about killing Jimenez and just thought the group was conspiring to beat him up. We conclude the evidence shows that Appellant conspired with others to harm or threaten to harm Jimenez in retaliation for providing information to Constable Prado which led to Wright's arrest.
Appellant is guilty of Lujan's murder regardless of which conspirator actually fired the fatal shots. Thus, the evidence is legally sufficient to support the jury's verdict that Appellant, as a principal or party, murdered Jamie Lujan while in the course of attempting to commit the offense of retaliation against Mark Jimenez as alleged in the indictment. Issue one is overruled.
Issue Two - Admission of Animation
By his second issue, Appellant alleges error by the trial court in admitting State's Exhibit 35A, a computer generated three-dimensional ("3-D") time elapse animation that purportedly reconstructs events surrounding the shooting, as viewed from Evans's perspective. The animation is approximately 120 seconds in length and purportedly portrays her view from the bedroom window of her apartment and then from her front door. In the animation three non-descript, identical, 3-D figures are seen standing in the breezeway adjacent to a non-descript single level box-like object, purportedly representing the office at the Emerald Green Apartments. The figures pause for approximately five seconds at the corner of that object and then disappear around a corner to the left. Approximately ten seconds later, seven loud gun shots are heard, all of the same decibel, but with various time lapses in between each shot. Two seconds after the last shot, the three figures are seen running through the breezeway in the opposite direction until they disappear to the right. The perspective then changes, purportedly moving from Evans's bedroom window to the front door of her apartment. Thirty-two seconds later, the animation portrays a single figure running from left to right across the screen.
Leading up to the admission of the animation, Yolanda Evans testified she knew Appellant and Lewis through their families. Just before the shooting, she was looking out her apartment bedroom window and saw Appellant, Lewis and Thomas standing in the alley near the Emerald Green Apartment office covering their faces with bandanas. When she inquired into their activity, they told her to stop being nosy. She ignored their warning and watched them go around the corner toward the office, which was out of her eyesight. She testified she heard "maybe five" shots and then saw the three individuals running. She witnessed Thomas and Lewis passing something back and forth. She momentarily lost sight of them in a blind spot then heard footsteps going upstairs. She moved from her window to her front door where she witnessed Thomas almost at the top of the stairs. Within seconds, she saw Thomas running down the stairs with a black bag in his hands and "looking scared."
After Evans testified before the jury, in a hearing outside the jury's presence, she was questioned by the State for the purpose of authenticating the animation. While Evans did state that the animation "accurately" depicted the view from her apartment window and then from her front door on August 28, 2008, cross-examination seemed to establish otherwise. Some of the questions related to the lack of a window screen in the animation and the fact that her building sits at a higher elevation than portrayed in the animation. Even though the gunshots in the animation were all the same decibel, other evidence established that the victim sustained wounds from two different caliber weapons, a .22 and .40 caliber. Cross-examination further revealed that while the suspects were of different body weights and heights, the suspects in the animation were identical. Additionally, although the number of gunshots heard in the animation was seven, Evans testified she heard "maybe five."
Numerous objections were lodged to the admission of the animation including relevance, probative value versus unfair prejudice, confusion of the issues, and the inaccurate reflection of Evans's testimony. All objections were overruled and Evans was excused but was asked to leave a contact number.
Although the animation was identified by Evans in her testimony outside the presence of the jury, the State sought to introduce the exhibit before the jury through the testimony of the person who created the animation, Officer Joe Fielder. Fielder testified that using crime scene measurements, photographs, Evans's statements and an accident reconstruction computer software program, he was able to create the animation.
The State then asked to publish the exhibit, whereupon defense counsel requested assurance that the record reflected their prior objections. At that point, the judge asked counsel to approach and inquired as to Evans's whereabouts. He expressed the following concern:
I just would expect that she should be here to testify to the jury that that's the way it happened. I mean, that's just simple enough, you know. He places it. She looks at it. She says that's the way it happened. I mean, to me, that's what you need.
The State responded that Officer Fielder was sufficient to sponsor the exhibit before the jury and that Evans had already established its admissibility. In ruling the animation admissible, the judge added, "[s]o, okay, I guess so. But I just - That's not exactly the way I thought it was going to unwind." Defense counsel then made hearsay and confrontation clause objections which were overruled. The exhibit was admitted and played for the jury. In ruling the animation admissible, the trial court likened it to admission of a photograph, a visual aid for the jury. Notwithstanding its ruling, the trial court again expressed concern in Evans not being available during Officer Fielder's testimony to authenticate the animation.
The defense asked to have Officer Fielder qualified as an expert before testifying about the animation. That objection was also overruled. During cross-examination, Officer Fielder admitted to discrepancies in the details of the animation but explained that some details were omitted because they require more memory to run the computer program. He testified that the number of shots heard in the animation was based on the number of shell casings found at the scene. Following Officer Fielder's cross-examination, the trial court announced, "[b]ased on your cross, I'm going to sustain the objection to the audio." Counsel for Appellant commented the ruling was "a little late." Thereafter, the court instructed the jury to disregard the audio portion of the computer generated animation, i.e., the seven gunshots. During redirect testimony, the court excused the jury and asked the parties if they had previously agreed to the animation during pretrial discovery. Defense counsel advised the court that they had only been made aware of it a few days prior to trial. The court reiterated that the animation was admissible, but that the State had not proven the audio portion to be fair and accurate.
Appellant contends the animation was neither accurate nor supported by the testimony because Fielder lacked sufficient personal knowledge of the details it purports to reflect, such as placement of the individuals, elapsed time between distinguishable events, number and volume of gun shots, and the direction and speed of travel of the individuals portrayed, rendering the animation inadmissible. While we agree the trial court erred in admitting the animation, we conclude the error was harmless.
"A computer animation is merely a series of images generated by a computer that serves as demonstrative evidence. It may, for example, illustrate what a witness saw, demonstrate for the jury the general principles that underlie an expert opinion, or depict an expert's theory of how an accident occurred. In each such instance, the evidence may be authenticated by the witness's testimony that the computer animation presents a fair and accurate depiction . . . [of] what they purport to represent. If they do not, they will not be admissible." Steven Goode, The Admissibility of Electronic Evidence, 29 Rev. Litig. 1, 10 (Fall 2009).
The use of animations to depict a crime scene has been approved by Texas courts. The State cites Mendoza v. State, No. 13-09-00024-CR, 2011 Tex. App. LEXIS 4378 (Tex.App. -- Corpus Christi 2011, no pet.) and Murphy v. State, No. 11-10-0150-CR, 2011 Tex.App. LEXIS 7230 (Tex.App. -- Eastland 2011, no pet), as authority for the admissibility of such animations. In Mendoza, a computer generated three-dimensional diagram of the crime scene was produced using a commercially available software program. From that opinion it appears as if the animation depicted nothing more than a three-dimensional rendering of the crime scene showing possible bullet trajectories. In affirming the ruling of the trial court in admitting that evidence, the Corpus Christi Court of Appeals noted that diagrams are generally admissible to explain the testimony of a witness and render it more intelligible. 2011 Tex. App. LEXIS 4378, at *41. Nothing in the Mendoza opinion approves the use of speculative animations showing anything more than documented facts.
Similarly, in Murphy v. State, No. 11-10-0150-CR, 2011 Tex. App. LEXIS 7230 (Tex.App. -- Eastland 2011, no pet.), the Eastland Court of Appeals approved the use of a computer generated animation of a crime scene. In Murphy, the supporting witness testified that he was a police officer assigned to the traffic division of the Midland Police Department, and that his duties included accident investigations and preparing accident reconstructions. He indicated that the purpose of the animation in question was simply to show the amount of distance covered by two vehicles in a given period of time in order to show the relative positions of the vehicles in the roadway. Unlike the animation in this case, he also testified that all the information and assumptions he used to generate the animation were based on speed and distance information actually known to him or other investigating officers. After reviewing the animation, the court found that the factual discrepancies depicted did not cause the probative value of the evidence to be substantially outweighed by any unfair prejudice from its admission.
The animations in both Mendoza and Murphy depicted inanimate objects based on quantifiable measurements. In this case, however, the animation attempts to portray the actions of at least four persons. With respect to animations involving animate objects, the Texas Court of Criminal Appeals has said, "[a]ny staged, re-enacted criminal acts or defensive issues involving human beings are impossible to duplicate in every minute detail and are therefore inherently dangerous, offer little in substance and the impact of re-enactments is too highly prejudicial to insure the State or the defendant a fair trial." Miller v. State, 741 S.W.2d 382, 388 (Tex.Crim.App. 1987) (quoting Lopez v. State, 651 S.W.2d 413, 414 (Tex.App. -- Fort Worth 1983), opinion withdrawn by Lopez v. State, 667 S.W.2d 624 (Tex.App. -- Fort Worth 1984), which opinion was reversed on other grounds, Lopez v. State, 664 S.W.2d 85 (Tex.Crim.App. 1985). "[T]he artificial recreation of an event may unduly accentuate certain phases of the happening, and because of the forceful impression made on the minds of the jurors by this kind of evidence, it should be received with caution." Lopez, 651 S.W.2d at 414 (quoting People v. Dabb, 32 Cal. 2d 491, 498, 197 P.2d 1, 5 (1948)). This is especially true where the event sought to be depicted is simple, the testimony adequate, and the animation adds nothing more than a one-sided, manipulated visual image to the mental picture already produced in the mind of the jurors by the oral testimony of an eye-witness who has been subjected to the crucible of cross-examination.
We review a trial court's ruling on the admissibility of this exhibit under an abuse of discretion standard. Coble v. State, 330 S.W.3d 253, 272 (Tex.Crim.App. 2010). We must uphold the trial court's ruling if it is within the zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000).
Before State's Exhibit 35 was admitted, the defense asked to have Fielder qualified as an expert. That objection was overruled and he testified as a lay person. He testified that by using crime scene measurements, photographs, Evans's statements and an accident reconstruction computer software program, he was able to create the animation. Nothing in the record, however, supports many of the details contained in the animation. Those details were provided by nothing more than pure speculation on his part. Accordingly, we conclude the trial court abused its discretion in admitting the computer generated animation.
Finding error in the admission of the animation does not, however, end our inquiry. The admission of evidence in violation of an evidentiary rule is non-constitutional error. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). We must disregard the error if it did not affect Appellant's substantial rights. Tex. R. App. P. 44.2(b). We review the entire record to ascertain the effect or influence on the verdict of the wrongfully admitted evidence. Barshaw v. State, 342 S.W.3d 91, 93 (Tex.Crim.App. 2011); Motilla v. State, 78 S.W.3d 355-56 (Tex.Crim.App. 2002). Reversal is required for non-constitutional error if the reviewing court has grave doubt that the result of the trial was free from the substantial effect of the error. Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App. 2002). "Grave doubt" means that "in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error. Thus, in cases of grave doubt as to harmlessness the petitioner must win." Id. at 637-38 (citing O'Neal v. McAninch, 513 U.S. 432 436, 115 S. Ct. 992, 130 L. Ed. 2d 947 (1995)).
The crux of the case against Appellant was linking him to the conspiracy to get Jimenez. Davis's testimony linked him to an agreement with others to retaliate against Jimenez for giving Constable Prado information which led to the arrest of his friend. The animation did little to answer that question. Moreover, the improper admission of evidence is harmless if the trial record contains other, properly admitted evidence that is probative of the same manner. See Saldano v. State, 232 S.W.3d 77, 102 (Tex.Crim.App. 2007). Considering the entirety of the record, including the contested issues, we conclude that Appellant's substantial rights were not affected by admission of the animation and that the error in admitting it was harmless. See generally Miller v. State, 741 S.W.2d 382, 388 (Tex.Crim.App. 1987).
As a subsidiary argument in his brief, Appellant complains he was harmed by the trial court's tardy instruction to the jury to disregard the audio portion of State's Exhibit 35 after realizing the audio was not supported by Evans's testimony. Specifically, he asserts the trial court's admonition to the jury was "too little and excessively late."
It is well established that an instruction to disregard generally cures any error in the improper admission of evidence. Barefield v. State, 784 S.W.2d 38, 44 (Tex.Crim.App. 1989). An instruction to disregard is a corrective measure because it attempts to cure any harm or prejudice resulting from events that have already occurred. Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App. 2004). There is an appellate presumption that an instruction to disregard the evidence will be obeyed by the jury. Gardner v. State, 730 S.W.2d 675, 698 (Tex.Crim.App. 1987).
We conclude the trial court instructed the jury to disregard the audio as promptly as possible under the circumstances and disagree with Appellant that the instruction came too late. See Cordova v. State, 296 S.W.3d 302, 312 (Tex.App. -- Amarillo 2009, pet. ref'd). We presume the instruction's curative effect was not diminished. Id. Issue two is overruled.
Conclusion
Accordingly, the trial court's judgment is affirmed.
Patrick A. Pirtle
Justice
Publish. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2935916/ | In the Missouri Court of Appeals
Eastern District
DIVISION TWO
STATE OF MISSOURI, ) No. ED101577
)
Plaintiff/Respondent, ) Appeal from the Circuit Court of
) the City of St. Louis
vs. )
) Honorable John Francis Garvey Jr.
ROSCOE GREEN, )
)
Defendant/Appellant. ) Filed: September 15, 2015
Introduction
Roscoe Green (Defendant) appeals his convictions for first-degree robbery and armed
criminal action. Defendant contends the trial court abused its discretion in denying his motion to
suppress the robbery victim’s pretrial and in-court identifications of Defendant because the
police’s identification procedures were “so suggestive” that they created a substantial likelihood
of misidentification. We affirm.
Factual Background
On October 24, 2011, Defendant allegedly robbed Curtis Hayes and a week later, on
Halloween, also robbed Stephen Jones. Regarding the latter incident, Jones was walking home
at night when Defendant approached him with a gun and told Jones, “Everything you got.”
Jones gave Defendant his ice-cream, headphones, cellphone, and book bag, which contained a
rare pair of Tim Hardaway Air Bakins size fifteen shoes. Both victims provided police with a
description of the robber. Several days later, in early November, officers responded to a robbery
at a bus stop and, upon entering a residence to which the suspect had fled, discovered Jones’s
shoes in Defendant’s possession. Defendant was arrested and subsequently placed in a police
lineup with three other men. Both Hayes and Jones independently identified Defendant as the
robber upon viewing the lineup. Defendant was charged with two counts of first-degree robbery
and two counts of armed criminal action, as to Hayes and Jones respectively.
Before trial, Defendant moved to suppress the victims’ pretrial identifications of
Defendant, as well as all in-court identifications, on the basis that the police failed to choose
similar looking participants and that the victims, therefore, identified Defendant because of his
“individuality.” After a hearing, the trial court denied the motion, finding that the officer who
presented the lineup to the victims acted reasonably and in “no way created an environment
which was suggestive of a positive identification [of Defendant].” Accordingly, the trial court
concluded that the lineup was not unreasonably suggestive and permitted at trial the introduction
of testimony concerning the victims’ pretrial identifications, including a photograph of the live
lineup, as well as the victims’ in-court identifications of Defendant.
Ultimately, the jury found Defendant guilty of first-degree robbery and armed criminal
action as to Jones, but acquitted Defendant of those same charges with respect to Hayes. The
trial court entered a judgment consistent with the jury’s verdict and sentenced Defendant as a
prior and persistent offender to concurrent terms of 15 years’ imprisonment for each count.
Defendant appeals.
Standard of Review
At the outset, we note that the parties dispute the applicable standard of review. The
State argues that Defendant did not properly preserve his claim because defense counsel did not
2
object to Jones’s testimony regarding his pretrial identification of Defendant or to his testimony
identifying Defendant in court. The State further points out that Defendant stated, “No
objection,” when the State introduced the photograph of the lineup into evidence. Defendant
requests that if we find the issue unpreserved for appeal, we review for plain error.
The State is correct in its recitation of the record. Generally, to preserve an evidentiary
error for appellate review, a party must contemporaneously object to the admission of evidence;
and, stating “no objection” to the introduction of evidence precludes direct appellate review of
the admission. See State v. Baker, 103 S.W.3d 711, 716 (Mo. banc 2003). However, during the
State’s case-in-chief, defense counsel realized that she had “erroneously not preserved”
Defendant’s pretrial motion to suppress the identification and subsequently objected to preserve
the motion. The trial court acknowledged counsel’s failure, but noted that “now the proper
objection has been made” and overruled Defendant’s objection subject to its previous ruling on
the motion to suppress. Under these circumstances, we will review the issue on the merits. See
State v. Mondaine, 178 S.W.3d 584, 588 (Mo. App. E.D 2005) (reviewing evidentiary claim on
the merits where defense counsel failed to object to the admission of evidence, affirmatively
stated “no objection,” and the trial court “overlook[ed]” this failure and ruled on the motion).
“In reviewing the trial court’s denial of a motion to suppress, we consider the evidence
presented at both the suppression hearing and at trial to determine whether sufficient evidence
exists in the record to support the trial court’s ruling.” State v. Nelson, 334 S.W.3d 189, 193
(Mo. App. W.D. 2011). “[W]e review the facts and inferences therefrom in the light most
favorable to the trial court’s ruling, and disregard all contrary inferences.” State v. Murray, 428
S.W.3d 705, 709 (Mo. App. E.D. 2014) (citation and quotation omitted). Further, we will not
disturb the trial court’s decision to admit or exclude the identification testimony unless there has
3
been an abuse of discretion. Nelson, 334 S.W.3d at 193. “Error in the admission or exclusion of
evidence does not justify reversal unless the error was so prejudicial that it deprived the
defendant of a fair trial such that the verdict would have been different.” State v. Washington,
444 S.W.3d 532, 536 (Mo. App. E.D. 2014).
Discussion
In his sole point, Defendant claims that the trial court erred in denying his motion to
suppress Jones’s pretrial and in-court identification of Defendant because the lineup procedures
were “so suggestive” that there was a substantial likelihood of Defendant’s misidentification.
Specifically, Defendant contends that the lineup was unduly suggestive because Defendant was
the only participant with both physical characteristics (height and hair) described by Jones and
because the police allowed the victims “to discuss the details of their cases immediately before
each would select a suspect from the lineup.”
In considering whether evidence of a pretrial identification of a defendant is admissible,
courts use a two-step test. State v. Chambers, 234 S.W.3d 501, 513 (Mo. App. E.D. 2007).
First, the court will determine if the pretrial identification procedure was unduly suggestive. Id.
If the procedure was impermissibly suggestive, the court then determines whether the suggestive
procedure led to an unreliable identification. Washington, 444 S.W.3d at 537. If the pretrial
identification procedures are not found to be unreasonably suggestive, it is not necessary nor
appropriate for a court to review the reliability of the identification. Chambers, 234 S.W.3d at
513.
A pretrial identification procedure is unreasonably suggestive if the identification results
not from the witness’s memory, but from the procedures or actions employed by the police. Id.
When selecting a lineup, police must make a reasonable effort to find physically similar
4
participants. State v. Anthony, 857 S.W.2d 861, 867 (Mo. App. W.D. 1993). Lineup participants
will never be identical, and the law does not require exact conformity to ensure a fair procedure.
State v. Williams, 18 S.W.3d 425, 432 (Mo. App. S.D. 2000). Mere differences in physical
characteristics are insufficient to establish an unduly suggestive lineup. Anthony, 857 S.W.2d at
867.
At the suppression hearing and trial, Detective Angela Hawkins testified to the process
used for creating a lineup at the St. Louis Justice Center, which was used to create Defendant’s
lineup. Hawkins explained that, generally, a lineup contains three to five participants, depending
on the available population pool at the Center, and that officers choose candidates from both the
first and second floor of the Center who are “as similar as can be” to the physical description of
the suspect.1 The photograph of the lineup, introduced at trial, shows that the lineup included
four participants. Hawkins testified that all participants had similarly shaped eyes and noses and
three of the four had similarly shaped faces.
Hawkins further testified that she coordinated the victims’ viewing of the lineup.
Specifically, Hawkins explained that she spoke to both victims outside the viewing room and
explained to them that “the person who is responsible for robbing them may or may not be
present in the lineup that they were about to view, and . . . that they [had] no obligation to feel
any pressure to identify [a] person or, . . . not identify [a] person.” Hawkins testified that she
then took Jones into the viewing room alone and advised him that if he did “see somebody that
he recognized, to let [her] know . . . .” According to Hawkins, Jones’s main characteristic for
identifying Defendant was how the “suspect’s eyes looked.” Hawkins explained that when she
and Jones entered the viewing room, Defendant was looking down, but as soon as he looked up,
Jones immediately identified Defendant and said he was “a hundred percent certain” that
1
Hawkins stated that, to the best of her knowledge, the police followed this protocol in the instant case.
5
Defendant was the individual who had robbed him. When Jones exited the viewing room,
Hawkins said that she made sure Jones did not speak to the other victim.
Under these circumstances, viewing the evidence in the light most favorable to the trial
court’s ruling, we cannot conclude that these identification procedures were unreasonably
suggestive. The police followed departmental protocol and made a reasonable effort to select
members from the population pool at the Justice Center who most resembled Defendant. The
photograph of the lineup shows that the lineup participants were of the same race with similar
skin tone; of similar age; had similarly shaped mouths, noses, eyes, and face shapes; and had a
lack of abundant facial hair. Further, the photograph reflects that all the participants had
unbraided, short cropped hair of varying lengths and that all of the participants were reasonably
close in height and weight to Defendant’s build.2 While some differences do exist between the
participants, for example Defendant’s hair had more volume than the hairstyle of the other
participants, none of these physical dissimilarities were so egregious as to create an unduly
suggestive lineup. Moreover, when Hawkins presented the lineup to Jones, she did not pressure
Jones to make a selection or suggest that the culprit was in the lineup; rather, Hawkins indicated
to Jones that the robber may or may not be in the lineup. Jones then identified Defendant based
on his independent recollection of Defendant’s build and face. Indeed, at trial Jones testified that
he identified Defendant in the lineup because he had “made a mental note” of what Defendant
looked like. Specifically, Jones indicated that he had noted that Defendant had his “body type
. . . having a height[,]” was “dark skinned[,]” and had “eyes kind of like me.”
Despite the neutrality of the police action, Defendant relying on State v. Kirk, 636
S.W.2d 952 (Mo. banc 1982), and State v. Word, 527 S.W.2d 708 (Mo. App. W.D. 1975), argues
2
The least similar participant, who stood at position three, appears to be less than a head shorter than Defendant and
to have a slightly stockier build, compared to the other slimmer participants. Of the other two participants, one was
Defendant’s height and the other was only slightly shorter.
6
that the police’s lineup procedure was impermissibly suggestive because Defendant was the only
person of his height and who had voluminous hair. In State v. Kirk, the Missouri Supreme Court
held that a lineup procedure was not unduly suggestive where each of the participants’ heights
more closely matched the victim’s description of the perpetrator than the height of the actual
defendant. 636 S.W.2d at 954-55. Defendant, comparing Kirk to this case, asserts that, here,
“none of the other participants reasonably approximated” Jones’s description of the robber and
that, therefore, under Kirk the lineup was unduly suggestive.3 Kirk, however, does not stand for
the proposition that a lineup is necessarily unduly suggestive where the actual perpetrator’s
physical attributes more closely matches the victim’s description than that of the other
participants. Police are only required to use reasonable efforts to find physically similar
participants, and “differences in age, weight, height, hairstyle, and other physical characteristics
do not compel a finding of impermissible suggestiveness.” Chambers, 234 S.W.3d at 514. Here,
the other participants did reasonably approximate Jones’s description of the robber—all but one
of the participants were close in height to Defendant and all had close-cut hair of varying
volume. Defendant’s reliance on Kirk is misplaced.
Defendant’s reliance on Word is similarly unhelpful. In Word, the Western District
found that a lineup was not impermissibly suggestive when the lineup “[did] not in and of [itself]
produce any suggestion of the identity of the defendant as the culprit.” 527 S.W.2d at 710. The
participants had similar heights and builds and lacked “distinguishing characteristics,” such as
“facial scarring,” that were so distinct as to eliminate any participant as a possible suspect. Id.
Compared to Word, Defendant asserts that the lineup did in itself produce a suggestion of
Defendant as the culprit because his unique distinguishing characteristics—his height and hair.
3
Jones, who is 6’6”, described the culprit to police as being “a little bit shorter” than him, possibly 6’2”, and as
having thick or voluminous hair.
7
Word’s reference to “distinguishing characteristics,” however, is not reference to common-place
attributes, like hair or height, but to characteristics of a different ilk, such as physical
abnormalities. Id. Indeed, Word recognizes that “[t]he issue of differences in weight or
complexion, or even height, as well as differences in hair styling, do not, in and of themselves,
make a lineup unduly suggestive.” Id. Here, just as in Word, the participants were sufficiently
physically similar. Indeed, at least one other participant was the same height as Defendant and
Defendant’s stature and hairstyle was not so distinctive as to suggest him as the culprit. See
State v. Gates, 637 S.W.2d 280, 285 (Mo. App. W.D. 1982) (that one participant has a physical
feature more prominent than the other participants, such as an unusual height, does not
necessarily invalidate an otherwise fair identification procedure).
Finally, Defendant argues that the identification procedure was unduly suggestive
because the police allowed the victims “to discuss details and circumstances of their robberies
immediately before” each individually viewed the lineup. Jones and Hayes did briefly share a
waiting room, and each told the other that he had been robbed. However, they did not discuss
specific details of the robberies, nor did they describe their assailants. After Jones identified
Defendant in the lineup, Hawkins led Jones from the room and escorted Hayes in. They did not
speak. Nothing in the record suggests that the victims consulted one another about the physical
characteristics of the assailant.4
Having reviewed the record in a light most favorable to the trial court’s decision, we
conclude that sufficient evidence supports the court’s finding that the lineup procedures were not
impermissibly suggestive. On appeal, Defendant has failed to demonstrate otherwise.
4
Defendant also argues that the police could have made a better effort to produce a more physically similar panel.
However, the participants were sufficiently similar and, therefore, the police acted consistently with the law. See
Chambers, 234 S.W.3d at 513-14 (police are only required to use reasonable efforts to find physically similar
participants).
8
Accordingly, we need not review the reliability of the identification. See Chambers, 234 S.W.3d
at 513. The trial court’s decision to deny Defendant’s motion to suppress Jones’s pretrial and in-
court identification of Defendant was not erroneous. Likewise, the trial court also did not abuse
its discretion by permitting into evidence testimony and evidence related to Jones’s pretrial and
in-court identification of Defendant. Point denied.
Conclusion
The trial court’s judgment is affirmed.
_______________________________
Philip M. Hess, Presiding Judge
Gary M. Gaertner, Jr., J. and
Angela T. Quigless, J. concur.
9 | 01-03-2023 | 09-15-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3863877/ | The first exception raises the question of the sufficiency of the description of the complainant's official character as set forth in the complaint. If it sufficiently appears that the complainant was a special constable appointed in accordance with Pub. Laws R.I. cap. 508, § 12, June 25, 1875, then, as section thirteen of the same chapter confers upon such constables like power and authority, within their respective towns, as is conferred upon the chief of police of Providence and the city marshal of Newport, within their respective cites, in cases arising from violation of the laws prohibiting, restraining, and regulating the sale of intoxicating liquors, the complainant was entitled under Gen. Stats. R.I. cap. 186, § 14, to make the complaint as he did, upon giving merely his personal recognizance for costs, without surety.
The complaint describes the complainant as a "Special Constable appointed to make complaints for violation of the liquor laws under chapter 508 of Public Laws of Rhode Island." Pub. Laws R.I. cap. 508, § 12, June 25, 1875, provide that "The town councils of the several towns may appoint special constables to enforce the laws of the State prohibiting, restraining, or in any manner regulating the sale of intoxicating liquors." Nicety of pleading would have dictated a simple reference to the section and chapter of the public laws under which the complainant was appointed, or a closer adherence to the language of the statute in describing his official character. We think, however, that the description, though inartificial, is sufficient. Reference is made to Public Laws, cap. 508, as the chapter under which the complainant was appointed. That chapter provides for the appointment of no special constables, except those named in section twelve above quoted.
The second exception was to the refusal of the court to quash the complaint. The defendant contended that no offence was charged with sufficient clearness and distinctness to notify him specifically for what he was to be tried, because the word "or" was used in connection with registered pharmacist, c. Though the use of the word "or" in charging an offence is fatal, its effect being to render the statement of the offence uncertain, it is nevertheless, a proper connective in pleading negative averments. In the present complaint it is used, not in charging the *Page 287
offence, but in connecting the negative averments introduced to exclude the defendant from the classes of persons authorized to sell intoxicating liquors. Such use is unobjectionable. Bishop on Statutory Crimes, § 1043. People v. Gilkinson, 4 Park. Cr. 26, 29; State v. Burns, 20 N.H. 550.
The other exceptions were not insisted upon at the hearing.
Exceptions overruled and case remanded to the Court ofCommon Pleas for sentence. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3870105/ | Mary R. Burnside, by her will, proved April 4, 1876, gave to her husband, Ambrose E. Burnside, all her property, which included certain Buckner bonds, for life, with power and authority, at pleasure, to sell and transfer any part of the personal property and to appropriate the proceeds to his own use. January 7, 1879, Burnside procured a loan from the Farmers Loan and Trust Co. of New York, of the sum of fifteen thousand dollars, depositing fifteen of said Buckner bonds, of the *Page 309
par value of one thousand dollars each, as collateral security. Burnside died September 13, 1881, at which time the Farmers Trust Co. still had the bonds, claiming that some time prior to his death he applied to the company to release him from his indebtedness by taking the bonds, which were made payable to bearer, as their own property, in payment of his debt; and that the company agreed to this arrangement, afterwards treating the bonds as their own. Upon payment of the bonds, with their accrued interest, in January, 1883, there was a surplus or profit over and above the amount of the loan and interest up to that time, amounting to $5,641.84, which was remitted to the defendant as administrator on the estate of General Burnside. A substantially similar transaction took place between General Burnside and William H. Osborn, of New York, the loan being ten thousand dollars upon ten bonds, and the sum remitted by him to the defendant being $3,844.75. Upon this state of facts the plaintiff sues the defendant for the surplus remitted to him, as money had and received by him to the plaintiff's use, claiming under the decision in R.I. Hospital Trust Co. v. Commercial NationalBank, 14 R.I. 625, that the power of sale given to General Burnside did not authorize him to mortgage or pledge the property left to him by his wife; that the transaction was a pledge; and that, consequently, the surplus arising from the pledge belongs to the estate of Mrs. Burnside and not to the defendant, because the bonds belonged to her estate.
The plaintiff has suits now pending against the Farmers Loan and Trust Co. and Osborn, in New York, for the entire proceeds of the bonds.
It appeared from the plaintiff's witnesses that the Farmers Loan and Trust Co. and Osborn claimed to have bought the bonds in the manner stated, and that they remitted the surplus to his estate, not because of any obligation to do so, but voluntarily, because, having made the loans from friendship to General Burnside, they did not wish to retain a profit from the transaction. Evidence of these facts was offered to the jury, whereupon the defendant's motion for a nonsuit was granted, and the plaintiff now prays for a new trial. The question is, assuming that the plaintiff can show that the bonds belonged to the estate of Mrs. Burnside, can *Page 310
it maintain an action of assumpsit against the defendant for the money which he has thus received, not on account of her estate, either intentionally or by mistake, but under a claim of right.
The plaintiff makes the broad claim that, when one can show an equitable claim for money, he can maintain an action for it inassumpsit. Expressions to this effect are to be found in many of the opinions cited by the plaintiff, and yet it will be found upon examination that the cases themselves do not establish such a proposition. It is true that the action of assumpsit is not confined within the lines of actual promise and contract, but extends to many cases where a plaintiff can recover only upon equitable grounds, from which a promise and contract are implied. But it does not follow that an action of assumpsit will lie upon a merely equitable claim. It does not depend simply upon what a court or jury may think is fair and right. There must be some discernible limit to the action in its equitable form, and this limit appears, in general terms, to be in the nature of a trust. That is to say, when a defendant has received money or its equivalent, under circumstances amounting to a trust to pay it over to the plaintiff, privity of contract arises from the relation of the parties, and a promise is implied. This distinction is very clearly brought out in Nolan v. Manton,
46 N.J. Law, 231. Upon the plaintiff's showing that the defendant had received money from a bank, where it had been deposited in the name of her deceased husband, upon a promise to pay it over to an administrator, when one should be appointed, it was held that this was a trust in favor of the plaintiff administrator, and a nonsuit was properly refused. But the defendant, as her part of the case, denied that she received the money upon any such trust, and contended that it was her own, and that the officers of the bank, being satisfied that she was the owner, paid it over to her as such. Her counsel then asked the court to instruct the jury that the receipt of money under such a claim would not raise an implied promise in law to pay the money to the plaintiff, and, if this were the fact, the action could not be maintained. This request was refused, but the refusal was held to be error, and the judgment for the plaintiff reversed. This case follows the earlier case of Sergeant v. Stryker, 16 N.J. Law, 464, which is a very thorough and instructive examination of this subject on principle *Page 311
and authority. An analysis of the cases cited by the plaintiff, which are representative cases out of many, discloses a trust relation, quite sufficient to sustain the action in the particular instances, without adopting the broad expressions that have been used in many of the opinions as the rule of law.
Gaines v. Miller, 111 U.S. 395, was a case of ratification of a sale of plaintiff's property and suit for the proceeds. If the defendants sold the plaintiff's property, clearly they would hold the proceeds to her use, and the court so held. Bank of Metropolis v. First National Bank of JerseyCity, 22 Blatchf. 58, was a case of collection of negotiable paper with a qualified indorsement. Under the notice given by the indorsement it was held that the money was received to the plaintiff's use. White v. Continental National Bank, 64 N.Y. 316, was to recover back money paid on an altered draft, in ignorance of the forgery. The defendant had received the plaintiff's money without right, and could only hold it for the plaintiff. Risdon v. De La Rua, 57 N.Y. Superior Ct. Rep. 63, was to recover money which the defendant's testator had agreed to pay to the plaintiff when collected. Harper v. Claxton,62 Ala. 46, was to recover back money paid on a rescinded contract. When the money which the defendant received from the plaintiff was no longer the consideration for a contract, it belonged to the plaintiff and was held to her use. Lawson's Executor v.Lawson, 16 Gratt. 230; 80 Amer. Decis. 702, was for specific money delivered to the defendant by plaintiff's testator, for safe keeping. A trust results to the owner from the custody or disposition of his property. Central Railroad v. FirstNational Bank of Lynchburg, 73 Ga. 383, was a case of special indorsement of a draft. Held, that the plaintiff in error had notice it was to be paid to the defendant in error, and hence it was paid to its use, and there was privity. In Knapp v.Hobbs, 50 N.H. 476, the defendant took property from a mortgagor at his request, sold it, and paid him the proceeds. As the recorded mortgage was constructive notice of plaintiff's title, it was held that the defendant received the proceeds to the plaintiff's use, and should have paid the money to him.State v. St. Johnsbury, 59 Vt. 332. The town collected fines and costs which enured to the State by statute. It was the ordinary case of money received to the use of another. Pugh v. *Page 312 Powell, 11 Atlantic Reporter, 570, was for money paid to the defendants for plaintiff's use. O'Conley v. Natchez, 9 Miss. 31, was for wharfage collected for use of plaintiff's wharf by trespassers in possession. The tort being waived, the defendant stood as the agent or trustee of the plaintiff for the profits.Peterson v. Foss, 12 Oregon, 81. Defendant surreptitiously took a note belonging to the plaintiff and collected it. Held, that he received the money for the plaintiff.
In some of these cases the money passed directly from the plaintiff to the defendant, and, when it appeared that the defendant had no right to hold it, the duty to return it to the plaintiff arose, and thus he became the plaintiff's trustee. Privity and implied promise follow from this relation of the parties. In other cases money was paid to a defendant expressly for the plaintiff's use, or under such circumstances as to warrant his holding it only for the plaintiff's use. These cases, therefore, disclose an important qualification to the general statement that an action will lie upon an equitable claim, namely, that the claim must be coupled with a duty to pay the money to the plaintiff arising from the relation of the parties or the character of the defendant's receipt or holding of the money. The case of Brand v. Williams, 29 Minn. 238, is not within this qualification, but goes to the full extent of the plaintiff's claim. Hall v. Marston, 17 Mass. 575, is often quoted in support of the rule as claimed by the plaintiff. But in that case money had been sent to the defendant to be paid to the plaintiff, and the court found that he acquiesced in the direction. In this respect the court distinguished the case fromWilliams v. Everett, 14 East, 582, saying: "In that case there was a positive refusal of the agent to act according to the orders of the person who remitted the money, except so far as to receive the contents of the bill. The difficulty was to establish an implied promise against an express denial." The point upon which these two typical cases turned was not whether the money equitably belonged to the plaintiff, but whether the defendant stood in such a relation to the plaintiff as to raise the duty of payment to him and to imply a promise to do so. In support of the rule that there must be privity of contract between plaintiff and defendant, see Clarke v. Shee and Johnson, 1 Cowp. 197, 200;Grant v. Austen, 3 Price, *Page 313
58; Douglass v. Skinner, 44 Conn. 338; Allen v. McKeen, 1 Sumner, 276; Cobb v. Becke, 6 Q.B. 930; Jones v. Carter,
8 Q.B. 134; Watson v. Russell, 5 B. S. 968; Libby v.Robinson, 9 Atlantic Reporter, 24. The following cases are exactly in point: Hall v. Carpen, 27 Ill. 386. These parties sent cattle to market, which were sold by the same broker. In accounting, he paid the defendant too much, and the plaintiff, in precisely the same proportion, too little. The plaintiff sought to recover his deficit of the defendant, but the court held that there was no privity of contract. Moore v. Moore,127 Mass. 22. One received money as his own from an executor, under a mistaken interpretation of the will; but it was the person who should have received the money. Rand v. Smallidge,130 Mass. 337, was a similar case.
It is clear from this examination of cases that it is not enough for a plaintiff in assumpsit to show that a third party should have paid money to him instead of paying it to the defendant. To hold the defendant, he must go further and show some relation or duty, in the nature of a trust, arising from the receipt of the money. In the case before us we find nothing which tends to show this. The defendant received the money from the Farmers Loan and Trust Co. and from Osborn, as a gift, prompted by a sentiment or obligation of friendship, or else it was intended as payment of a debt understood to be due to the estate in his hands. In either case he holds it under a claim of right, not only independently of the plaintiff, but without any recognition whatever of the plaintiff's claim. Under advice of counsel and pending litigation, he has refrained from entering the amount received in his account, but in no way has he admitted the plaintiff's right to the money. How can we imply a trust relation or a receipt of money to the plaintiff's use in the face of a denial of the plaintiff's right? Circumstances may show such a relation, although the defendant deny it; but here the plaintiff, at most, shows nothing more than that the money ought to have been paid into Mrs. Burnside's estate. If so, the Farmers Loan and Trust Co. and Osborn are still responsible for it, as well as for the entire proceeds for which the plaintiff has sued them. This case well illustrates the reasonableness of the rule requiring privity between the parties, because it throws upon the defendant, a stranger to the transaction, the litigation of the plaintiff's *Page 314
claim against the parties in New York. It may be decided one way here and another way in New York. While this would be no ground in itself for dismissing the suit, if it lies, the embarrassment of such a result shows that the point in issue ought to be settled between the parties from whose relation it arises. The defendant has no specific property belonging to the plaintiff, nor anything received from the plaintiff; he has received no money under a promise or direction to pay it to the plaintiff; he has disposed of no property of the plaintiff, nor has the money sued for come into his hands in any way as the trustee of the plaintiff. We do not think, therefore, that he is liable to the plaintiff in an action of assumpsit. There is no privity of contract between the parties, and hence the nonsuit was properly granted.
Petition dismissed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3867687/ | We have before us two actions of trespass on the case for negligence. Each plaintiff sues to recover for damages which they respectively received as the result of an automobile accident which occurred in Massachusetts while the plaintiffs were riding as guests of the common defendant. In each case the defendant pleaded (1) the general issue; (2) that the defendant was not guilty of gross negligence according to the Massachusetts doctrine applying in passenger and guest cases and (3) that the law of Massachusetts, which created the cause of action, limited its life to one year. The cases are here on exception of each plaintiff to a ruling by a justice of the Superior Court overruling each plaintiff's demurrer to the third plea.
Counsel appear to agree that the actions, had they been brought in Massachusetts, were commenced too late to be maintained; and that the actions cannot be maintained in Rhode Island — or elsewhere — if the law which created the right of action limited its life to one year. *Page 95
The plaintiffs' counsel contends that the right of action was not created by statute but existed at common law; that the Massachusetts statute is merely a statute of limitations limiting the time within which suit may be brought in that commonwealth and hence has no force elsewhere.
The question as to what is the law in another state is a question of fact to be decided as any other question of fact. The defendant may not be able to sustain his third plea, but he has alleged in substance that the law of Massachusetts creating the right of action limited its life to one year. A demurrer admits for purposes of the demurrer all allegations of fact properly pleaded. By demurring the plaintiffs admit for purposes of the demurrer that the Massachusetts law creating the right of action gave it life for only one year, and we do not understand that counsel for plaintiffs questions the well established legal principle that an action created to exist only for a certain limited time ceases to exist at the expiration of said time and that thereafter suit cannot be maintained thereon even in a foreign jurisdiction having a much more liberal statute of limitations. See Conn. Valley Lumber Co. v. Maine Cent. R.R.,78 N.H. 553, 103 A. 263; Tarbell v. Grand Trunk Ry., 94 Vt. 449, 111 A. 567. The ruling on the demurrer was correct.
The question before us is whether the bills of exceptions should be dismissed as prematurely brought. In some instances it would be of advantage to parties to have questions of law, raised on demurrer, settled by this court before undergoing the expense of a trial. Such practice was permitted before the adoption of the Court and Practice Act. The old practice was not perfect. A defendant by raising successive questions of law on demurrer might take a case to the appellate court several times, thereby causing much delay before the case was heard on the facts. The legislature for reasons appealing to it saw fit to change the procedure. *Page 96
Section 24, Chapter 348, G.L. 1923, provides that: "Exceptions to decisions or rulings prior to trial shall be open to revision after verdict or final decision on the merits, but so far only as it appears to the supreme court that the verdict or final decision was erroneously affected thereby." Since the adoption of the above language as a part of the Court and Practice Act, it has been the settled rule that a bill of exceptions to the overruling of a demurrer is prematurely brought if the decision permits the action to proceed to a determination of issues of fact tendered by the pleadings. See Troy v.Providence Journal Co., 43 R.I. 22, 109 A. 705; Germain v.L'Union St. Jean Baptiste D'Amerique, 113 A. 655, and cases cited.
The third plea being a good plea in bar, the plaintiffs should, by replying to this plea, raise or bring about an issue. Two other issues are raised by the plea of the general issue and the plea denying gross negligence in accordance with the Massachusetts rule in such cases in suits by guests against the owner or operator of the vehicle.
The exception in each case, being prematurely brought, is dismissed and each case is remitted to the Superior Court for further proceedings. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3874157/ | DECISION ON DEFENDANTS' RULE 12(b)(1) MOTION TO DISMISS NEGLIGENCE CLAIMS FOR LACK OF SUBJECT MATTER JURISDICTION
The Hierarchical Defendants move under Rule 12(b)(1) to dismiss any and all claims against them which arise out of allegations of negligence on their part. They base their motion on the religion clauses of both the state and federal constitutions which they allege deprive this Court of subject matter jurisdiction over Plaintiff's negligence claims. For the reasons set forth below, the Court denies Defendants' motion.
I Facts and Travel
Christopher Young ("Young") commenced this action against John Petrocelli ("Petrocelli") and also against the so-called Hierarchy Defendants. In his 150-page complaint, Young alleges that he was sexually molested during his minority by the Reverend John Petrocelli and claims that the co-defendants, Hierarchy Defendants, are liable to him for injuries and damages he suffered as a result of the assaults. In essence, Plaintiff contends that the Hierarchy Defendants engaged in both negligent and intentional misconduct by negligently, willfully, intentionally and recklessly disregarding his rights by permitting Petrocelli to have contact with *Page 2
him and other children after he was known to them as a child molester. Young alleges that such willful and negligent misconduct occurred in connection with the following: hiring, supervising and retaining Petrocelli after they had actual or constructive knowledge that he was a sex offender and unfit to have access to children; failing to keep their premises reasonably safe; conspiring, fraudulently concealing and misrepresenting the dangers associated with having contact with Petrocelli; inflicting Young with emotional distress; violating their duty to act in loco parentis; invading Young's privacy; tortiously interfering with his parent/child and family relationship; breaching their fiduciary duty to him; and breaching their statutory reporting duties to him. Young claims that the Hierarchy Defendants are liable to him under the doctrine of respondeat superior and further alleges that their wrongful conduct was tantamount to criminality.
Young asserts that Petrocelli had opportunities to molest him by virtue "of his position as a servant or agent under the authority, supervision, employ or control of" the Hierarchy Defendants. He further alleges that "the Hierarchy defendants exerted control over and/or assumed responsibility for [Petrocelli], thus establishing and maintaining a relationship with a corresponding duty to refrain from intentionally engaging in a knowing and deliberate course of conduct resulting in or substantially certain to result in harm to innocent child victims, including Plaintiff" and that they breached that duty. Additionally, Young asserts that because the Hierarchy Defendants "knew that many priests in the Diocese of Providence had sexually molested children," that it was their policy and practice to "secrete the identities, retain the services of, and protect pedophiles, ephebophiles and/or other sexual offenders who are or had been Roman Catholic priests" and that they did so to avoid adverse impacts on "revenues collected by the church from parishioners." *Page 3
Furthermore, Plaintiff alleges that the Hierarchy Defendants "treated the sexual assaults of children by priests as scandal that was to be suppressed at any cost, knowing that suppression put the youth of the Diocese of Providence at risk." Plaintiff asserts that the Hierarchy Defendants operated a private psychiatric treatment system for treatment of priests exhibiting psychosexual disorders "to conceal and suppress the existence of the problem . . . and to affirmatively deceive the public by misrepresenting that a priest [was] `on leave,' on `retreat,' on `sabbatical and/or participating in `advanced studies,' when in fact he [was] sent away for evaluation and treatment due to sexual misconduct." Plaintiff alleges that the primary concern of the Hierarchy Defendants was to further their own interests and protect the reputation of the priests, including Petrocelli, concealing "the danger offending clerics present by misrepresenting them as priests in good standing" in a variety of ways, including enabling them to have "continued unrestricted access to minors." Plaintiff further contends that the practices of the Hierarchy Defendants gave him the false impression that he could rely upon them to protect him and that they breached their fiduciary duty to deal with him in good faith and "with the highest degree of trust and confidence."
Plaintiff asserts that the conduct of the Hierarchy Defendants was wrongful in concealing complaints; discouraging prosecution and civil litigation; making false promises that they would address the complaints and take preventive measures against future harm; ignoring and failing to properly investigate complaints; mistreating complainants; suppressing results of investigations; failing to maintain adequate records of offenders and complaints; sealing records of litigation and settlements; transferring offenders to new parishes thereby exposing a new population of children to their abuse; maintaining known offenders in positions where they would have access to children; allowing them to return to prior assignments while misrepresenting the reasons for *Page 4
their absence; permitting them to reside and serve as priests in settings where it was foreseeable that they would come into contact with youths; failing to suspend or remove them from their duties; holding them out as competent, moral and fit priests; failing to propose proper guidelines "for selection, maintenance, supervision and retention of priests"; failing to propose and implement policies to assist victims; giving refuge and defense to offending clerics; and, failing to warn parishioners and others that the cleric with whom they would reasonably have contact was, in fact, an offender.
The Hierarchy Defendants answered Plaintiff's complaint denying the material allegations contained therein and asserting certain affirmative defenses, including lack of subject matter jurisdiction, which defense forms the basis for the instant motion. Hierarchy Defendants contend that the Court cannot entertain Plaintiff's negligence claims without violating the religion clauses of both the State and Federal Constitutions. The Hierarchy Defendants argue that by adjudicating the negligence claims, the Court will become unconstitutionally entangled in religious doctrine, practice, or church polity. Resolution of such claims will necessarily require the Court to regulate the manner in which a Catholic bishop selects, assigns, supervises, and disciplines priests and that such regulation violates the First Amendment of the United States Constitution, as applied to the states through theFourteenth Amendment, and the First Amendment of the Constitution of the State of Rhode Island. Plaintiff objects to the motion and notes that most cases that favor Hierarchy Defendants' position involve issues other than child molestation.
II Analysis
Certainly, there are disputes involving religious orders over which the court has no subject matter jurisdiction. The United States Supreme Court addressed this issue in the case of *Page 5 Serbian Eastern Orthodox Diocese for the United States of America andCanada v. Milivojevich, 426 U.S. 696 (U.S. 1976). Milivojevich involved a dispute over control of the American-Canadian Diocese of the Serbian Orthodox Church. A bishop who had been suspended, removed, and defrocked filed a declaratory judgment action against the Diocese in a civil court in Illinois seeking a judgment declaring him the true bishop of the diocese and also seeking injunctive relief to enjoin church officials from interfering with church assets. Id. at 695-96. For its part, the church counterclaimed seeking a declaratory judgment that plaintiff had been removed as bishop and that the diocese had been properly reorganized. Id. at 696. The Illinois Supreme Court entertained the dispute and entered a judgment in favor of the plaintiff based upon its interpretation of the church's constitution, penal code, and internal regulations. Id. at 708. On certiorari, the United States Supreme Court reversed the decision holding that it violated the First andFourteenth Amendments by interfering with the decisions of a hierarchical church.Id. at 698. The court held that although the resolution of the dispute also determined control of church real estate, the case was essentially a religious rather than a property dispute. See id. at 709. A civil court cannot conduct its own inquiry into "religious issues of doctrine or polity." Id. To do so would require the court to interpret ambiguous religious law and usage and would violate the First Amendment. It would be tantamount to providing a civil determination of religious doctrine. As the Court stated:
". . . where resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them." *Page 6
Id. at 709; see also Lott v. Eastern Shore Christian Ctr.,908 So. 2d 922, 928, 930-31 (Ala. 2005) (the court could not grant a temporary restraining order preserving the plaintiff's church membership because membership is an ecclesiastical matter; thus, the First Amendment of the United States Constitution prohibits judicial resolution); Dobrota v.Free Serbian Orthodox Church "St. Nicholas", 952 P.2d 1190, 1194, 1196
(Ariz.Ct.App. 1998) (the court could not decide a wrongful termination claim between a priest and the church because hiring and firing of clergy is a matter reserved to the church, but could compute the amount owed the priest after an ecclesiastical court decided that the priest was owed compensation); Maffei v. Roman Catholic Archbishop,867 N.E.2d 300, 306 (Mass. 2007) (the court refused to inquire into any alleged pastoral duties owed by the priesthood to its laity over matters of canon law, specifically the creation of a fiduciary relationship that inheres in a shared faith).
The Hierarchy Defendants argue that the reasoning set forth in the aforementioned cases applies equally to the negligence claims brought by Young. They assert that when a bishop performs his supervisor function, it is of an intrinsically religious nature and cannot be controlled by the State. Such functions are performed under the Roman Catholic Church's Code of Canon law, obeying and applying scripture, and ministering to the priest. Hierarchy Defendants' contend that if Young is permitted to pursue his negligence claims, the Court will be examining the validity of religious beliefs and interfering with clerical counseling. Hierarchy Defendants argue that such review is barred by both the Free Exercise and Establishment Clauses of theFirst Amendment.
In support of their position, Hierarchy Defendants rely upon the reasoning set forth in the dissenting opinion of a 2005 Mississippi case, Roman Catholic Diocese v. Morrison, 905 So. 2d 1213, 1248-56
(Miss. 2005) (Smith, C.J., dissenting). The dissent in that case opined that the *Page 7
alleged tortious acts were tantamount to claims of clergy malpractice and concluded that the First Amendment Doctrine of Church Autonomy precluded the court from asserting jurisdiction in such matters.See id. at 1249. The dissent in Morrison challenged the majority holding that Chief Justice Smith wrote which would allow the courts to exercise state power to regulate the manner in which a bishop "selects, assigns, supervises, and disciplines his priest, as well as what he does or does not say about the priest to the parishioners." Id.
The Hierarchy Defendants urge this Court to apply theMorrison dissenter's reasoning when determining the instant motion. Following the view expressed in the Morrison dissent, Hierarchy Defendants argue that the negligence claims involve ecclesiastical questions which ought not to be decided by civil courts. The Hierarchy Defendants aver that to adequately decide the issues raised by Plaintiff Young — that is, to determine whether the bishop and other members of the church hierarchy acted reasonably — the Court would have to become immersed in theological criteria. They argue that this immersion would be necessary because the Court would have to determine the standard of care exercised by a reasonable and prudent bishop or other member of the church hierarchy. In the alternative, the Court would have to judge the church hierarchy's conduct without regard to whether their acts or omissions violated or conformed to church teachings, the vows they took, and canon law. See Morrison, 905 S. 2d at 1253.
The Court rejects this reasoning and finds the reasoning set forth in the majority opinion in Morrison, and in cases from other jurisdictions, more persuasive than the dissent cited by the Hierarchy Defendants.
In the case of Malicki v. Doe, 814 So. 2d 347 (Fla. 2002), the Florida Court rejected the First Amendment claims of church hierarchy defendants, stating, "the First Amendment does not *Page 8
provide a shield behind which a church may avoid liability for harm caused to a . . . parishioner arising from the alleged sexual assault or batter by one of its clergy. . . ." Id. at 351. The Florida Court focused on the nonreligious nature of the alleged misconduct that formed the basis for the negligence claims, sexual molestation. Seeid. at 360-61. The court held that claims of negligent hiring and supervision of a priest are not deeply rooted in religious belief regardless of whether the determination of the claims results in an incidental effect on the practice of religion. Id.
Likewise, in the instant case, inquiry by this Court into the basis of similar claims will merely constitute the application of a neutral law and will not impose upon or significantly restrict the Hierarchy Defendants' religious beliefs or practices.
In Rosado v. Bridgeport Roman Catholic Diocesan Corp., 716 A.2d 967,969, 973 (Conn.Super.Ct. 1998), the Connecticut Court held that theFirst Amendment did not preclude a claim of negligent supervision against the church in a case involving sexual abuse allegations against one of its priests. The court noted that despite the principle that a government cannot selectively impose burdens on religion, claims of institutional negligence did not require inquiry into religious doctrine or belief, but rather, were applications of secular standards to secular conduct. Id. at 970. The court's consideration of the case based upon allegations of negligent supervision would not prejudice or impose upon religious beliefs or practices. Id. at 970. Adjudication of the case would involve an examination of defendant's alleged role in permitting one of its employees to engage in conduct that defendants, as employers, and society in general, expressly prohibit. Id. The court also noted that a person's religious beliefs or practices have never been held to excuse one from an otherwise valid law prohibiting conduct within the State's purview. Id. at 970-71. The court refused to create blanket protection for the church in matters such as the *Page 9
protection of minors and held that the claims could be adjudicated on purely secular principles and standards. Id. at 973.
In Bivin v. Wright, 656 N.E.2d 1121 (Ill.App.Ct. 1995), the plaintiff alleged a series of negligent acts against the church, including failure to supervise, warn, adequately train, and dismiss a member of the clergy. Id. at 1123. The Illinois Court found that the court could determine the claims by applying neutral principles of law without relying on interpretation of religious doctrine. Id. at 1124. As such, "mandatory deference to religious authority is not required by thefirst amendment. . . ." Id. The court concluded that adjudication of the complaint could be decided on neutral principles of law and would not involve inquiry into religious doctrine or church law since the conduct alleged is not rooted in religious beliefs or practices. Id.
The Morrison case, like the instant one, involved negligent claims against the church hierarchy based upon allegations of child molestation by a former priest. See Morrison, 905 So. 2d at 1219-20. In the majority opinion, the court engaged in a thorough "Freedom of Religion" analysis, addressing the Establishment Clause; the Free Exercise Clause; and the Doctrine of Church Autonomy. Id. at 1224. That analysis is equally applicable to the instant case.
Citing the test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), for its review of the Establishment Clause, the Mississippi Court acknowledged that the Constitution invalidates government action when it is excessively entangled in religion, but found no excessive entanglement under allegations of sexual molestation. SeeMorrison, 905 So. 2d at 1225, 1226. The court concluded that sexual molestation of children, as well as providing relief to victims of such conduct, is not remotely involved in ecclesiastical rules or religion itself. Id. at 1226. In fact, the court stated: "failing to provide relief would be tantamount to imposing less stringent *Page 10
requirements on priests and religious institutions concerning the protection of children from sexual molestation than those generally imposed on others by society." Id. at 1229-30. The Morrison Court concluded that, as it relates to claims of sexual molestation, civil courts may inquire into a religious institution's relationship with its priests to determine whether the institution had power and authority over the priests and also knowledge and information pertaining to the improper acts. See id. at 1230. If so, then the religious organization would be treated no differently than any other institution to which the common law applies. Id. at 1230. This Court agrees.
Turning to the Free Exercise Clause, the Morrison Court noted that although the First Amendment protects a person's right to believe in religion, it does not provide absolute protection of one's right to act on those religious beliefs. Id. at 1230 (citing Cantwell v.Connecticut, 310 U.S. 296 (1940)). Courts must balance the competing interests of the State in facially neutral laws and practices against a person's refusal to comply with such laws based upon religious beliefs. The Court concluded that where one's well-established and sincere religious beliefs would be violated by compliance with a neutral government law or practice, the Free Exercise Clause may apply.See Wisconsin v. Yoder, 406 U.S. 205 (1972). In Yoder, the United States Supreme Court found that Wisconsin's compulsory school attendance law unduly burdened the Free Exercise Clause by forcing Amish parents to send their children to public school. This violated core Amish religious beliefs requiring them to remain "aloof from the world." The holding inYoder is distinguishable from cases involving acts of child molestation. Similarly, the Free Exercise Clause will not permit a person to rely on religious motivation as an excuse for disobeying generally applicable laws, such as those prohibiting possession of illegal drugs.See Employment Div. Dep't of Human Res. v. Smith, 494 U.S. 872, 882
(1990). In *Page 11 Employment Division, the court rejected the claims of two native Americans seeking unemployment benefits after having been discharged from work for ingesting an illegal hallucinogen as part of their religious ceremonies. See id. The conduct sought to be regulated in the Young case — namely, accusations of child molestation by a Catholic priest — as in Employment Division and in Morrison, is not rooted in religious belief. See Morrison, 905 So. 2d at 1226. As such, the Free Exercise Clause is not implicated and will not bar civil litigation of Young's claims. See id. at 1237.
Finally, the Morrison Court considered whether the Doctrine of Church Autonomy barred a civil court from considering such claims.See id. at 1235-37, 1247. The Doctrine of Church Autonomy essentially protects religious organizations from secular control and empowers them to control and ordain themselves in "internal, ecclesiastical matters."Morrison, 905 So. 2d at 1236. In essence, a secular court will not exercise any ecclesiastical jurisdiction and must keep itself removed from the inner-workings of a religious organization. Id. Purely secular actions, particularly those involving third-parties outside the church, do not carry with them the perceived danger of excessively entangling a court in essentially religious controversies. Id. at 1237 (quotingGen. Council on Fin. Admin. of the United Methodist Church v. SuperiorCourt, 439 U.S. 1355 (1978)). The Morrison Court concluded that the pure secular nature of allegations of negligence arising out of allegations of sexual molestation of children render the Doctrine of Church Autonomy inapplicable. Morrison, 905 So. 2d at 1237.
In the instant case, the allegations involve a third-party, outside the church, Christopher Young. Young's claims that the church hierarchy negligently hired, supervised and retained a pedophile priest are not deeply rooted in religious belief or practices. See id. The Court rejects Defendants' argument that such functions should be shielded by the First Amendment because *Page 12
they are performed under the Church's Code of Canon law. The Hierarchy Defendants cannot avoid the instant litigation on the argument that the alleged acts or omissions constituted obeying and applying scripture, and ministering to the priest. Contrary to Hierarchy Defendant's contentions, this case can be determined based upon neutral principles of law and will not involve inquiry into church law.
Conclusion
For the reasons set forth herein, the Hierarchy Defendants' Motion to Dismiss is denied. Plaintiff's negligence claims, at this procedural juncture, do not involve excessive entanglement of church and state so are not barred by the religion clauses of either the State or Federal Constitutions. Counsel shall submit an appropriate order consistent with this decision. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/154103/ | UNITED STATES COURT OF APPEALS
Filed 10/28/96
FOR THE TENTH CIRCUIT
CAROLYN CALDRON,
Plaintiff-Appellant,
v. No. 96-5078
(D.C. No. 95-C-217-J)
SHIRLEY S. CHATER, (N.D. Okla.)
Commissioner, Social Security
Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
*
Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P.L. No. 103-296. Pursuant to Fed. R. App. P. 43(c), Shirley S.
Chater, Commissioner of Social Security, is substituted for Donna E. Shalala,
Secretary of Health and Human Services, as the defendant in this action.
Although we have substituted the Commissioner for the Secretary in the caption,
in the text we continue to refer to the Secretary because she was the appropriate
party at the time of the underlying decision.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before BALDOCK and BRISCOE, Circuit Judges, and LUNGSTRUM, *** District
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Plaintiff Carolyn Caldron appeals from an order of the district court 1
affirming the Secretary’s determination that she is not entitled to disability
benefits. We affirm.
"We review the Secretary's decision to determine whether her factual
findings are supported by substantial evidence in the record viewed as a whole
and whether she applied the correct legal standards. Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027,
1028 (10th Cir. 1994)(citations and quotation omitted).
***
Honorable John W. Lungstrum, District Judge, United States District Court
for the District of Kansas, sitting by designation.
1
The parties agreed to have this case heard pursuant to 28 U.S.C. § 636(c).
Therefore, the appeal is properly taken from the magistrate judge's order. We
refer to this order as being issued by the district court.
-2-
Ms. Caldron initially claimed disability due to a herniated disc with
radiculopathy, arthritis, bronchitis, and plantar fascitis. At the hearing, she stated
that she had voluntarily entered a Methadone treatment center because she was
worried she was addicted to her prescription pain medication. The fact that she
had been evaluated by a mental health specialist was also raised at the hearing.
Ms. Caldron had not claimed any disabling addiction or mental impairment prior
to the hearing.
The administrative law judge (ALJ) determined at step five of the five-step
sequential process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.
1988), that Ms. Caldron could perform sedentary work. Ms. Caldron asserts that
this determination is in error because the ALJ did not properly evaluate either her
pain or her mental impairment. She also argues the ALJ ignored the treating
physician rule and the standards for sedentary work. Finally, she asserts the ALJ
did not tell the vocational expert (VE) all of her unrebutted medical impairments
and ignored the VE’s opinion that she could not work.
Ms. Caldron argues the ALJ improperly evaluated her complaints of
disabling pain. She does not appear to argue that the ALJ failed to follow the
analysis set forth in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987) for evaluating
pain, but rather argues because (1) she is in a Methadone program for treatment of
-3-
a drug addiction, (2) the Methadone relieves her pain in part, and (3) she receives
a very high dosage of Methadone, she has proved her pain is disabling.
The record shows that Ms. Caldron entered the Methadone treatment
program voluntarily because she was worried she was taking too much of her
prescription pain medication and, having read about the possibility of addiction
from prescription medications, she decided to seek treatment. The record does
not support, and Ms. Caldron does not allege, that any addiction she may suffer is
disabling. Instead, Ms. Caldron contends that her belief that she was addicted to
prescription drugs proves that her pain is disabling. Ms. Caldron points to no
evidence in the record that supports her assertion. In fact, it is generally accepted
that persons may become addicted to prescription drugs regardless of the level of
pain experienced. Nothing in the record supports Ms. Caldron’s assertion that she
is receiving high doses of Methadone or that, if so, the reason for the high dosage
is her extreme pain.
The record supports the ALJ’s determination of Ms. Caldron’s credibility as
to the severity of her pain. “[A] claimant's subjective complaint of pain is by
itself insufficient to establish disability." Talley v. Sullivan, 908 F.2d 585, 587
(10th Cir. 1990)(quotation omitted). Several physicians have noted that objective
medical evidence does not support Ms. Caldron’s claims of disabling pain. See R.
Vol. I at 176 (Dr. Fielding noted in 1992 that she did not appear to be in acute
-4-
distress and stood and walked with a relatively normal gait); 237 (Dr. Hendricks
noted that the physical examination did not suggest objective injury as severe as
the complaints); 247 (Dr. Dandridge noted that his examination failed to disclose
objective findings to substantiate the subjective complaints); 277 (Dr. Fielding
noted in 1994 that while she acted as if experiencing pain, her back was
“unremarkable to inspection”).
Further, a claimant’s inability to work pain-free is not sufficient reason to
support a finding of disability. Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir.
1988). While Ms. Caldron undoubtedly does experience pain and may have a low
pain threshold, the ALJ’s conclusion that her pain is not disabling is supported by
the record.
Ms. Caldron also asserts the ALJ improperly evaluated her mental
impairment. Ms. Caldron has not received any psychiatric treatment. She did
have one evaluation. The MMPI showed some results consistent with those found
among individuals with classic conversion symptoms. No diagnosis was made
that she suffers from conversion syndrome or that her conversion symptoms
impacted her ability to work. In fact, the report concluded that individuals with
conversion symptoms “are likely to continue functioning but at a reduced level of
efficiency.” R. Vol. I at 283. The determination that Ms. Caldron showed some
-5-
moderate elevations on the anxiety scale also does not indicate disability due to
anxiety.
Ms. Caldron argues the ALJ ignored the treating physician rule because her
treating physician stated that she was disabled and the ALJ rejected that opinion
without setting forth specific reasons. Ms. Caldron’s treating physician, Dr.
Black, did state that Ms. Caldron would be disabled until she had corrective
surgery on her back. Id. at 178. More specifically, however, he stated both that
she was “at least temporarily, disabled from the type of work she does,” id. at
180, and was limited in her ability to work, id. at 232. He restricted her to ten
pounds of lifting, pulling, or pushing. Id. at 182, 185, 232. Dr. Black’s one
statement that she is disabled is clarified by his other statements, made before and
after the date of that statement.
Dr. Black recommended corrective surgery which Ms. Caldron has not had.
The only reason contained in the record for not having surgery is Ms. Caldron’s
statement to Dr. Black indicating she could not have surgery until litigation
connected with her worker’s compensation claim had been completed. Id. at 180.
A claimant’s failure to follow a prescribed course of treatment which could
restore the ability to work is grounds to deny benefits. 20 C.F.R. § 404.1530(b);
Pacheco v. Sullivan, 931 F.2d 695, 697-98 (10th Cir. 1991).
-6-
Ms. Caldron also asserts the ALJ ignored the standards for sedentary work
because he did not establish that she could sit for prolonged periods of time. The
ruling addressing sedentary work states that a claimant must be able to sit for
about six hours of an eight hour workday. Soc. Sec. Rul. 96-9p, 1996 WL
374185, at *3 (Jul. 2, 1996). A claimant who must alternate sitting with standing
and/or walking may still be able to perform sedentary work. Id. at *6. Here, the
VE opined that Ms. Caldron could work with the alternating sitting, standing, and
walking restrictions found by the ALJ.
Ms. Caldron asserts the ALJ did not tell the VE of all her unrebutted
medical impairments in formulating the hypothetical question because he did not
mention her drug addiction, conversion disorder, and anxiety. In determining
whether a claimant can return to a past line of work, the ALJ must include in his
hypothetical to the VE only those impairments he accepts as true. See Talley, 908
F.2d at 588. We have already affirmed the ALJ’s determination that the record
does not show that Ms. Caldron’s possible drug addiction, conversion symptoms,
and anxiety had any significant impact on her ability to work.
Finally, Ms. Caldron argues that the ALJ ignored the VE’s opinion that she
could not work. The VE proffered this opinion upon being asked if Ms. Caldron
would be able to work if her testimony were accepted as fully credible and were
-7-
substantially verified by the medical evidence. Clearly, the ALJ did not find all
of Ms. Caldron’s testimony credible.
The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.
Entered for the Court
John W. Lungstrum
District Judge
-8- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3848564/ | The question is whether peaceful picketing should be enjoined if its object is to force an employer to compel his employes to join a labor union under the threat of discharging them if they refuse.
Plaintiffs, Phillips and Ostroff, are manufacturers of slip covers, draperies and curtains, their establishment *Page 80
being located on the second floor of a building at 20th and Chestnut Streets, Philadelphia. At the height of the season they employ in their plant ten girls. For one year they had a closed shop agreement with Local Union No. 124 of the Upholsterers International Union, A. F. of L. In 1939, just prior to the expiration of that agreement, a large number of members of the Local seceded and were granted a charter as Local Union No. 443 Furniture Upholstery and Drapery Workers, affiliated with the United Brotherhood of Carpenters and Joiners of America, A. F. of L. Representatives of the new Local approached plaintiffs for the purpose of inducing them to sign a closed shop agreement which would have required them to employ members of that Local exclusively. In reply to this request plaintiffs stated they would sign the proposed contract if their employes wished to join the union, and that the agents were at liberty to speak to the girls in order to induce them to do so; however, notwithstanding propaganda activities on the part of the agents, the girls refused to join. Accordingly, plaintiffs continued to operate their business as a non-union shop, but at no time did they attempt to influence their employes against joining Local No. 443 or any other union. In 1940 the union posted a one-man picket in front of plaintiffs' place of business bearing a sign which read: "Notice to the public. Phillips and Ostroff is unfair to custom furniture and drapery workers union — Phila. District Council of Carpenters Aff. with the A. F. L." Although the picketing was at all times conducted in an orderly and peaceful manner it caused great damage to plaintiffs' business; unionized truck drivers refused to pass the picket line with the result that merchandise could not be delivered to or from the premises. Plaintiffs thereupon sought a preliminary injunction; this was granted by the court and it continued in force for a period of more than seven years during which time plaintiffs made *Page 81
no attempt to convert it into a permanent injunction and defendants, on the other hand, made no attempt to have it dissolved. In 1947 defendants finally filed an answer to plaintiffs' bill, hearing was had, and the court made a final adjudication, dissolved the preliminary injunction, and dismissed the bill. From that decree plaintiffs now appeal.
The business representative of Local No. 443 was asked on cross-examination what would have happened if plaintiffs had signed the closed shop agreement and the girls had nevertheless refused to join the union; would plaintiffs in that event have been obliged to discharge the girls? To which he replied, "According to the contract, that would be the procedure." One of the plaintiffs testified that the agents of the union said that "if the girls don't join, you fire the girls and we will get you new girls. . . . Q. They told you if the girls did not sign the contract, to fire the girls? A. That is what he did." Although this particular statement was denied there can be no doubt, from a reading of the record as a whole, that the purpose of the picketing was to coerce plaintiffs into compelling their employes to join the union under penalty of dismissal if they refused and was therefore designed to induce plaintiffs to violate the Pennsylvania Labor Relations Act of June 1, 1937, P. L. 1168. Section 6 of that Act provides that "It shall be an unfair labor practice for an employer (a) To interfere with, restrain or coerce employes in the exercise of the rights guaranteed in this act. . . . (c) By discrimination in regard to hire or tenure of employment, or any term or condition of employment to encourage or discourage membership in any labor organization."
The question arises, therefore, whether a labor organization can properly be allowed to picket an establishment in order to coerce the employer into an action which is made an unfair labor practice and therefore forbidden by a statute of the Commonwealth. Coercion *Page 82
is not necessarily limited to threats of violence to a person or his property but may be quite as effective by causing him substantial business losses. The court below refused a permanent injunction under the misapprehension that peaceful picketing, being a right which, generally speaking, is constitutionally guaranteed as one of free speech, is necessarily and under all circumstances lawful, whereas, by the latest decisions of the United States Supreme Court, of this Court, and of other jurisdictions, it is well established that free speech is not involved where the labor objective is illegal and that, under such circumstances, picketing may properly be enjoined. Thus in Wilbank v. Chester DelawareCounties Bartenders, Hotel and Restaurant Employees Union,360 Pa. 48, 60 A.2d 21, it was definitely held that an injunction restraining unlawful picketing was not an infringement of the constitutional guaranty of free speech. The facts in that case were strikingly similar to those here involved. There the proprietors of a hotel employed 14 persons the majority of whom were not members of a labor union and did not wish to become members; the employers had no objection to any of them joining a union and offered no objection to efforts of the union to persuade them to join. The business agent of the union submitted to the employers for execution a contract requiring them to employ only union members and informed them that if they did not execute it picketing would result. The employers, not desiring to coerce their employes, declined to comply with the agent's request and the picketing followed as threatened. This Court held, in an opinion by Mr. Justice LINN, that the right of the employes not to join a union was protected by section 5 of the Pennsylvania Labor Relations Act of June 1, 1937, P. L. 1168; that section 6 of that Act made it an unfair labor practice for an employer to interfere with, restrain or coerce employes in the exercise of the rights guaranteed by the *Page 83
Act; that the purpose of the union in picketing was to require the employers to force their employes to join the union or to discharge them and employ others who were members of the union; that such a purpose was unlawful and subject to restraint. A decree of the court below enjoining the picketing was therefore affirmed. It was also pointed out in that case that the injunction sought was within the general equity jurisdiction of the Courts of Common Pleas unrestricted by the Labor Anti-Injunction Act of June 2, 1937, P. L. 1198. The Act of June 9, 1939, P. L. 302, amending section 4 of that Act, provided that courts were no longer to be deprived of the right to issue injunctions in cases where a majority of the employes had not joined a labor organization and any labor organization or any of its officers or members engaged in a course of conduct intended or calculated to coerce an employer to compel or require his employes to prefer or become members of a labor organization, and also in cases where any person, any labor organization, or any representative of a labor organization, engaged in a course of conduct intended or calculated to coerce an employer to commit a violation of the Pennsylvania Labor Relations Act of 1937 or the National Labor Relations Act of 1935.
In Carpenters Joiners Union of America, Local No. 213, v.Ritter's Cafe, 315 U.S. 722, the United States Supreme Court reviewed a decree of a Texas court enjoining a union from picketing; it affirmed the decree because the picketing was in aid of an objective which was a violation of Texas anti-trust laws. In the course of its opinion the Court said, (pp. 725, 726) that "the circumstance that a labor dispute is the occasion of exercising freedom of expression does not give that freedom any greater constitutional sanction or render it completely inviolable. Where, as here, claims on behalf of free speech are met with claims on behalf of the authority of the state to impose reasonable regulations *Page 84
for the protection of the community as a whole, the duty of this Court is plain."
In Giboney v. Empire Storage Ice Company, 336 U.S. 490,69 S.Ct. 684, the United States Supreme Court affirmed a decree of the Supreme Court of the State of Missouri enjoining picketing the purpose of which was to force a company operating a cold storage warehouse into a combination designed to prevent the sale of ice to nonunion peddlers, thus requiring the company to make discriminations in its sale of ice in violation of the Missouri anti-trade-restraint statute. The union had obtained agreements for that purpose from the other wholesale ice distributors, but this particular company refused to agree, whereupon the union informed it that it would use other means at its disposal to force it into line, and in pursuance of that threat it picketed the company's place of business. The union argued that the picketing was merely for the purpose of disseminating truthful information that the company was selling ice to peddlers who were not members of the union, and that its right to do this was guaranteed by the first and fourteenth amendments. The court rejected, however, the union's contentions that conduct otherwise unlawful was necessarily immune from state legislation because an integral part of that conduct was carried on by the display of placards by peaceful picketers, that peaceful picketing was beyond legislative control, and that it was an abridgement of the freedom of speech to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried on by means of language, either spoken, written, or printed.
From these decisions, buttressed as they are by unassailable logic, it is clear that, since the union here was engaged in an attempt to coerce plaintiffs into performing an unlawful act, such attempt, even though *Page 85
taking the form of peaceful picketing, properly may, and should, be enjoined.*
The decree dismissing the bill is reversed at appellees' costs, and the record is remanded with direction to grant the injunction prayed for.
* Incidentally it may be noted that the placards bearing the slogan that plaintiffs were "unfair" to the union were themselves unfair, for they misrepresented the act. Plaintiffs admittedly never made any attempt to interfere with the endeavor of the union to induce their employes to join it. It is true that in Cafeteria Employees Union, Local 302, v.Angelos, 320 U.S. 293, 295, it was said that words like "unfair" are merely "loose language . . . they are part of the conventional give-and-take in our economic and political controversies", but it is also true that the word "unfair" means "dishonest", "unjust", "employing a trick or artifice", and when used by organized labor it means "unfriendly" to such labor. Certainly the facts here do not justify any such characterization of the attitude of plaintiffs in connection with the events which culminated in the present proceedings. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/91137/ | 111 U.S. 505
4 S.Ct. 583
28 L.Ed. 498
PACIFIC RAILROAD OF MISSOURIv.MISSOURI PACIFIC RY. CO. and others.1
May 5, 1884.
N. A. Cowdrey, D. H. Chamberlain, and Wm. B. Hornblower, for appellant.
Melville C. Day, John F. Dillon, and Wager Swayne, for appellees.
BLATCHFORD, J.
1
On the twenty-sixth of June, 1880, the Pacific Railroad, (of Missouri,) a Missouri corporation, filed a bill in equity in the circuit court of the United States for the Eastern district of Missouri, against the Missouri Pacific Railway Company, another Missouri corporation, and various individual defendants citizens of Missouri, Massachusetts, and New York, and a New York corporation. The main object of the bill is to impeach and vacate, for alleged fraud in fact, a decree made by that court, June 6, 1876, foreclosing a mortgage on railroad property of the plaintiff, and ordering its sale. The sale was made September 6, 1876, it was confirmed by the court October 7, 1876, and a deed was given October 24, 1876, by the master, to he purchaser, who was James Baker. The decree was made in a suit brought November 11, 1875, by one Ketchum, a citizen of New York, against the present plaintiff and various citizens of Missouri and New York, to foreclose a mortgage given by the present plaintiff, July 10, 1875, on its railroad and other property, to Henry F. Vail and James D. Fish, trustees, called the 'third mortgage,' to secure a proposed issue of bonds of $4,000,000. On the first of February, 1877, the present plaintiff took an appeal to this court from the decree of June 6, 1876, and from the order confirming the sale. The case was returnable at October term, 1877, was heard here in January, 1880, was decided in April, 1880, the decree below being affirmed, and a rehearing was applied for and was denied May 10, 1880. See Pacific R. R. v. Ketchum, 101 U. S. 289. This bill was then promptly filed.
2
Copies of the bill in the Ketchum suit, and of the decree and the deed of the master, and the order of the court approving the deed, are annexed to and made a part of the bill in this suit. The material allegations of the latter are these:
3
C. K. Garrison, James Seligman, and Pierce (three of the defendants in this suit) were made co-plaintiffs in the Ketchum suit, before the decree was entered, and their solicitors were directed to receive their instructions from and be advised by said Baker, who was the solicitor of this plaintiff, and they did follow Baker's instructions. The decree was procured to be made by the court by false and fraudulent representations made by the defendants herein. The decree and the master's deed designedly and fraudulently embraced more and other property of this plaintiff than was embraced in the mortgage being foreclosed, in the following language, which was interpolated without the knowledge of this plaintiff, viz.: 'Including, among other things, the track on Poplar street, and the levee in the city of St. Louis, commonly known as the 'Poplar-street track," the value of which property is more than $200,000. All of the defendants in this suit (only three of whom, Baker, Vail, and Fish, were defendants in the Ketchum suit, and four others of whom, Ketchum, C. K. Garrison, James Seligman, and Pierce, were plaintiffs in the Ketchum suit) had knowledge of and were parties to the frauds herein complained of, either at their inception or by 'subsequent subrogation.' The Atlantic & Pacific Railroad Company (which will be called the Atlantic Company) was the lessee of this plaintiff's railroad, under a lease, a copy of which is annexed to the bill as an exhibit, and which this plaintiff asks leave to refer to with the same effect as if it were set out at length in the bill, and was in possession of the property of this plaintiff. By the terms of said lease the Atlantic Company assumed certain obligations, including the payment of a rental to this plaintiff, being unable to pay which its manager sought to evade its obligation by destroying this plaintiff. On and before June, 1872, the chief officers and directors of the Atlantic Company, who were Andrew Pierce, Jr., Joseph Seligman, A. V. Stout, and others unknown, procured the ownership or control of a majority of this plaintiff's stock, for the avowed purpose of procuring control of all its assets and road; and, in execution of such purpose, said directors and officers procured the execution of said lease between the two roads on June 29, 1872. Upon the execution of the lease, the Atlantic Company became possessed of all the property and franchises of this plaintiff, and at all times since this plaintiff has not been in control of any of its property, except to receive rents under the lease, from June, 1872, to July, 1875. Since the making of the lease, the stockholders of this plaintiff have been paid all dues under the lease, to July, 1875. All interest on its bonds was also paid, and this plaintiff was not in default on any mortgage liability which existed when the lease was made. During the lease, he Atlantic Company, by false and fraudulent representations that this plaintiff was indebted to it for improvements made on this plaintiff's property, procured the execution by this plaintiff of three issues of bonds, namely, income bonds, for $1,500,000; improvement bonds, for $2,000,000; third mortgage bonds, so-called, for $4,000,000. The proceeds of all of said issues of bonds went to the Atlantic Company, or the persons by whose false and fraudulent action their issue was procured. At or before November 11, 1875, when the Ketchum foreclosure suit was begun, the Atlantic Company was indebted to various persons and corporations, whose names are set forth.
4
C. K. Garrison, on his examination in the Ketchum suit, said that he was one of the complainants in that suit, and the owner of over $1,500,000 of the third mortgage bonds, and represented the owners of the rest. By the terms of the lease the Atlantic Company undertook to pay all the debts of this plaintiff, as well as all operating and repairing expenses, and all interest on bonds to be issued after the date of the lease, for extending its lines, buying rolling stock, and rentals. The pretended increase of mortgage debt of $4,000,000, between July 1, 1871, and July 10, 1875, is fictitious, fraudulent, without consideration, and contrary to the laws of Missouri. The net income of this plaintiff's road from the date of the lease to December 31, 1874, was $739,172.68. The recitals in the third mortgage bonds, that they were issued to procure additional rolling stock for this plaintiff's road, were false. This plaintiff had no legal capacity to execute the third mortgage, or to issue $4,000,000 of bonds. The law of Missouri only authorized mortgages of railroad property for certain stated purposes, and no issue of bonds is valid without the vote of the stockholders. The only pretended authority for making the third mortgage (a copy of which is annexed to the bill) is shown by a circular and form of proxy issued to the stockholders by Mr. Hays, president, of which copies are attached to the bill. The circular and proxy do not authorize the mortgage of $4,000,000, or of any amount whatever. The Atlantic Company did not negotiate absolutely any of the $2,000,000 of improvement bonds, but used them to aid its own credit, and several of its directors and officers of this plaintiff were indorsers on obligations of the Atlantic Company secured by said bonds. The third mortgage was procured to be executed fraudulently, to be used as additional security for said indorsements, and $2,500,000 of the third mortgage bonds were used to secure the payment of obligations of the Atlantic Company; and said Garrison and Seligman and the defendant Sage, with full knowledge of these facts, bought at heavy discount the past-due obligations of the Atlantic Company, with the accompanying third mortgage bonds. Some of the directors and former officers of this plaintiff were interested in the bonds or the obligations, and vigorously prosecuted the foreclosure suit, to the destruction of the interests of the stockholders of this plaintiff. The defendants Stout, Fish, D. R. Garrison, Samuels, W. R. Garrison, and C. K. Garrison were, during all these transactions, up to the commencement of the foreclosure suit, either directors of the Atlantic Company or of this plaintiff, or creditors of, or otherwise interested in, the Atlantic Company, and benefited by said frauds, and were fully cognizant of the creation of said fraudulent bonds and of said fraudulent acts. and are not holders in good faith of said third mortgage bonds. The defendant C. K. Garrison agreed with Andrew Pierce, Jr., Baker, and D. R. Garrison that if they, controlling, as they did, the defense to the Ketchum suit, would consent to a decree therein in the manner and form in which consent to the entry of said decree was given, he would pay all their liabilities in connection with the Atlantic Company. Pursuant to such agreement, said Garrison did pay said liabi ities and took the improvement or third mortgage bonds which were held as collateral, and thereupon said Pierce, Baker, and D. R. Garrison caused said decree to be entered, and falsely set forth that this plaintiff consented to the decree and authorized the action of Baker in the premises.
5
Prior and subsequent to November 1, 1875, Baker, one of the directors of this plaintiff and its general attorney, with Andrew Pierce, another director, and others unknown, confederated with some of the defendants herein to institute proceedings to foreclose the third mortgage for the entire $4,000,000, in order to obtain the entire property for themselves for greatly less than its real value. In execution of this scheme they procured the bill of foreclosure in the Ketchum case to be printed prior to November 1, 1875, and filed in the circuit court of the United States for the Eastern district of Missouri, and procured the complainant, Ketchum, to allow his name to be used therein, and the bill was sworn to before the coupons were in default, and, without waiting the six months required by the trust deed, or procuring the request of the requisite number of bondholders, they began suit. Baker admitted service of subpoena in the name of this plaintiff, without authority, and without authority filed the answer of this plaintiff, falsely admitting the due and lawful execution of the mortgage and the liability of this plaintiff to pay the bonds, well knowing the said facts invalidating the bonds. As a part of the fraudulent schemes of the defendants no replications were ever filed to put the cause at issue; no reference was ever made to a master, so as to truly inform the court of the character and amount of the debt; the cause was hurriedly disposed of, without waiting for the three months allowed by the rules of that court, in equity; no defense was ever undertaken to be interposed at any stage of the proceedings by Baker, who pretended to act as solicitor for this plaintiff, but who really acted for Andrew Pierce, W. R. Garrison, C. K. Garrison, Russell Sage, James Seligman, and others unknown, in procuring the decree of foreclosure and the sale thereunder; the trustees, who alone had any right to foreclose the mortgage, never filed any cross-bill or prayed any relief; the recital in the decree that the cause was heard on 'proofs,' was wholly false and fraudulent, and there never was any judicial hearing whatever; no proofs were ever taken or offered, but the decree was prepared and entered entirely by consent of and collusively between the complainants and the counsel and officers of this plaintiff, who were both carrying out the common purpose of procuring the speediest decree of foreclosure, for which the action was originally instituted, and in fraud of the rights and property of this plaintiff, and without any authority from it; it was false that Garrison, Pierce, and Seligman were the owners of the bonds, as recited in the decree, and the complainants and Baker, counsel for them, and the officers of the corporation, consenting to said decree, knew of all the facts invalidating the bonds, and wrongfully concealed all such facts from the court; no decree was entered decreeing what debt was due under the mortgage, or ordering the payment thereof, or giving any time or opportunity for redemption; the third mortgage bonds, neither by their face nor by any provision of the mortgage, were due at the time the decree was made, and no interest thereon was unpaid, except the coupons which matured on the first on November, 1875; well knowing that there was cash in the hands of the receivers appointed by the court in the case, and valuable real estate in the city of St. Louis which could be separately sold, which was far more than sufficient to pay the entire amount of interest justly due on the mortgage debt, even if valid, the complainants and the attorney for this plaintiff, jointly, and for the purpose of defrauding this plaintiff, procured the entry of a decree to sell the entire property of this plaintiff to pay the principal and interest of the bonds; and the whole amount of the third mortgage bonds were not then and have not since been issued, and, in any event, were not, to the full sum of $4,000,000, a lien upon the premises.
6
Baker, in pursuance of said fraudulent understanding, purchased the property at the sale, not for this plaintiff, his clients, and received a pecuniary reward from the defendant the Missouri Pacific Railway for doing the same. He bought the property upon secret agreements, and in trust for C. K. Garrison and his associates, for $3,000,000, payable in third mortgage bonds, a sum greatly less than its actual cash value. C. K. Garrison was surety for Baker, as purchaser. Baker transferred his interest in the purchase to the defendant the Missouri Pacific Railway Company, which has since held it. It has issued to the holders of the third mortgage bonds of this plaintiff, bonds of itself for an equal amount, the third mortgage bondholders receiving accrued interest in cash, and purchasing an equal amount of the stock of the Missouri Pacific Company. The principal holders of the third mortgage bonds are and were C. K. Garrison, Sage, James Seligman, and others, who confederated to procure the decree. On November 1, 1876, the Missouri Pacific Company made a mortgage for $4,500,000, to secure a pretended and fraudulent indebtedness, in which mortgage the defendant the Central Trust Company is now mortgagee. The defendants the Missouri Pacific Company, C. K. Garrison, Sage, and James Seligman own and control, or the same are held for their use, nearly the whole amount of the third mortgage bonds, and all took them with full knowledge of the want of authority to issue them, and of their fraudulent character. As part of said fraudulent scheme, the Atlantic Company, in 1872, procured the passage of an act of the legislature to enable the directors of this plaintiff to retain control of the company against the will of the stockholders. From the passage of said act to December, 1876, the Atlantic Company, through the directors of this plaintiff, who were false to their trust, have, by means of said law, controlled the organization and management of this plaintiff's corporation. The directors of this plaintiff did not properly represent the interests of its stockholders, but used their position to strip it of its property. The stockholders of this plaintiff, in writing, requested said directors to resign, that others might be appointed in their place who would properly attend to the duties of their office, and requested them to employ other counsel than Baker to defend theKetchum suit; but said directors allowed Baker, who had caused the Ketchum complaint to be prepared before any cause of action arose, and had caused the subpoena to be served on himself, to put in the answer of this plaintiff in said suit, when said directors and Baker knew that the averments admitted were many of them false in fact. The defendants C. K. Garrison, W. R. Garrison, Oliver Garrison, D. R. Garrison, Jay Gould, Russell Sage, A. V. Stout. George J. Forrest, Webb M. Samuels, and Joseph L. Stephens, with others unknown, are now, or have been, directors of the defendant the Missouri Pacific Railway Company, and in the receipt of its income, and had knowledge of all the matters complained of, and were parties to said frauds, and have been, from October, 1876, to the present time, in possession of this plaintiff's property.
7
Answers on oath to interrogatories in the bill are required from all the defendants except Baker, (Stout not being made a defendant in the prayer for process.) The prayer of the bill is that the improvement bonds, and the third mortgage bonds, and the two mortgages securing them, and the mortgage to the Central Trust Company, be declared void; that the decree of foreclosure in the Ketchum suit be set aside; and that proper accounts be taken, and this plaintiff be allowed to redeem, and its property be restored to it. The decree n the Ketchum suit states that this plaintiff, as defendant, appears by James Baker, as its solicitor, and that he appears, as defendant, in his own proper person, and as solicitor for five other defendants, who are not defendants in the present suit. It also states that the 'court, being fully advised in the premises, and by the consent of the parties to this suit, through their solicitors of record, thereupon and in consideration thereof' decrees; but the terms of the consent are not otherwise set forth in the decree.
8
There are two demurrers to the bill,—one by the Missouri Pacific Railway Company, O. Garrison, D. R. Garrison, Samuels, and Baker; the other by Ketchum, C. K. Garrison, Pierce, and Stephens. The two demurrers are substantially identical, wxcept that, in the first one, O. Garrison, D. R. Garrison, and Samuels allege that they are not proper or necessary parties, and in the second one it is alleged that the circuit court has no jurisdiction over the suit. In other respects, each demurrer is as follows:
9
'The defendants, * * * by protestation, not confessing all or any of the matters or things in the said complainant's bill contained to be true in such manner and form as the same are therein set forth and alleged, do demur to the said bill, and for cause of demurrer show that the said complainant has not, by its said bill, made such a case as entitles it, in a court of equity, to any discovery from these defendants respectively, or any of them, or any relief against them, as to the matters contained in asid bill, or any such matters; and that any discovery which can be made by these defendants, or any of them, touching the matters complained of in the said bill, or any of them, cannot be of avail to the said complainant for any of the purposes for which a discovery is sought against these defendants by the said bill, nor entitle the said complainant to any relief in this court touching any of the matters therein complained of.
10
'And for further and more specific grounds of demurrer these defendants aver as follows, to-wit: (1) If, or in so far as, the said bill of complaint is to be treated and regarded as a bill of review for errors apparent in the record, then it clearly appears that the time limited by law for the bringing of such a bill of review had elapsed long prior to the bringing of the present suit; and also that said decree has been affirmed, on appeal, by the supreme court of the United States. If, or in so far as, the said bill of complaint is to be regarded and treated as a bill of review instituted upon the discovery of new matter, or based upon errors not apparent of record, then it appears that no leave of this court has been obtained for the filing of such a bill of review. It does not appear in the bill of complaint, or otherwise, that the matters of complaint therein set forth were not known to the complainant at the time of the pendency of the foreclosure, or that they could not have been therein set forth or determined; and the bill of complaint discloses such negligence and laches in the institution of the suit as destroys complainant's right to the relief prayed for. (2) The bill of complaint contains no description of the property mortgaged or covered by the decree, and in reference to which relief is sought to be had. (3) The bill of complaint fails to set forth the bill of complaint or the decree in the proceedings sought to be assailed, or the tenor or purport thereof, all of which things should appear in the body of the bill of complaint, in order to entitle the complainant to any relief or discovery. (4) The averments of the bill of complaint show that the complainant, even if its bill is to be treated as an original one and not a bill of review, should be precluded by its own laches and neglect from now instituting the present proceeding; for it is nowhere averred that the complainant or its stockholders were at any time ignorant of the various alleged frauds complained of; and, on the other hand, it does appear that the co plainant and its stockholders were all along aware of all the facts now sought to be assigned as grounds for relief and discovery in the bill, and that the complainant could have instituted its suit under the authority of the officers now representing it as early as March, 1877, and that the stockholders of complainant had the means and remedies to have averted the alleged wrongs, as well as the rendering of the decree and the foreclosure of the property now complained of, in so far as they may have had any just defenses thereto. (5) It affirmatively appears, by said bill of complaint, in conjunction with the exhibits sought to be made a part thereof, that the said stockholders of the complainant, having full knowledge of all the matters now sought to be set up as grounds of relief and discovery in this case, were allowed full opportunity to interpose any and all objections they might have to the rendering of said decree, and not only failed to do so, but actually assented to said decree in manner and form as it was rendered, and that the said stockholders actually assented to and ratified the sale of the property which was made under and by virtue of the foreclosure proceedings. (6) The bill of complaint fails to aver that its stockholders were at the time ignorant of the various facts alleged as occurring and existing prior to the foreclosure suit, or during the pendency of said suit, or that they were in any way precluded from making any defenses that they might have to said decree of foreclosure, all which averments, under the facts and circumstances of this case, should be made to appear by the bill of complaint, in order to entitle it to any relief or discovery. (7) The said bill of complaint is altogether vague, uncertain, and inconsistent in its various averments, and abounds in prolix, redundant, and impertinent matters, and it is not such a bill as, under the course of proceedings in chancery and of this court, these defendants ought to be called upon to make plea or answer to. (8) There is a defect of material and necessary parties defendant in said suit; for it appears from said bill of complaint that in order to the obtaining of the relief sought for, J. B. Colgate & Co., D. L. Caldwell, the National Bank of Commerce of New York, the National Shoe & Leather Bank, Andrew Pierce, as well as other corporations and individuals, and especially the officers of the Atlantic & Pacific Railroad Company at the time of the perpetration of the alleged frauds, and the former officers of the Pacific Railroad, are necessary and proper parties to the suit, in order to the obtaining of the relief sought to be had in the bill of complaint. (9) The thirty-fourth, thirty-seventh, thirty-eighth, thirty-ninth, fortieth, forty-first, and forty-second clauses of the bill of complaint contain matters and allegations that are entirely immaterial and irrelevant, and all of which have been adjudicated against the complainant, on appeal, by the supreme court of the United States.'
11
The demurrers were brought to a hearing, and were, by consent, ordered to stand as demurrers for the Central Trust Company, and were sustained. 2 McCrary, 229; S. C. 12 Fed. Rep. 461. The plaintiff elected to abide by the bill, and it was dismissed and the plaintiff has appealed.
12
The circuit court, in its opinion, regarded the bill as an original bill to impeach the prior decree for fraud, and not as a bill of review upon newly-discovered facts and evidence. It held the bill to be insufficient, for want of an affirmative allegation that the plaintiff was ignorant, during the pendency of the original suit, of the facts set up in the bill, much less that it was unable, after due diligence, to ascertain and plead them. The court added: 'But the demurrer goes further, and raises the question whether the bill and exhibits do not show affirmatively that the present complainant, through its stockholders, had notice of the foreclosure suit, knowledge of the defense now insisted upon against the third mortgage bonds, and ample opportunity to make that defense. It is, we think, very clear that, in considering the question of notice, no distinction can be made between the corporation and its officers and stockholders. We cannot separate them and say the officers and stockholders knew of the fraud, but the corporation did not. If, therefore, the stockholders were advised of the foreclosure suit, and of the facts now charged as constituting fraud in the execution of the bonds and mortgages sued on therein, and had an opportunity to intervene and defend, and did not do so, the corporation is concluded by their laches. That the stockholders, as a body, were advised of the foreclosure suit, and took action looking to its defense, and that they did not rely upon the officers of the corporation, but distrusted and antagonized them, is clear from the allegations of the fortyfifth count of the bill, by which it is charged that the stockholders, in writing, requested the directors to resign, that others might be appointed in their place, who would properly attend to the duties of their office; also that the stockholders requested said directors to employ counsel other than James Baker to defend the suit of Ketchum.' The court, in its opinion, then makes reference to various matters which, it states, appear in the record of the Ketchum case; that at a meeting of stockholders held in March, 1876, at St. Louis, several months before the decree of foreclosure was made, a resolution was adopted requesting the directors to employ counsel to aid in the defense of the foreclosure suit; that the stockholders, or their managing committee, afterwards assented to the decree; and that the stockholders knew the facts now set up by way of defense.
13
The record in the Ketchum suit is not before us on this appeal. The only allegation in the bill in regard to it is this: 'Your orator prays liberty to refer to the files and records of said United States circuit court in the case of George E. Ketchum irregular, and fraudulent character of the legal proceedings instituted, with advice of said Baker, the counsel of your orator, to sell all its property for the enforcement of a security which your orator avers to be fraudulent and void, and for which your orator had received no valuable consideration.' There is not, in the record on this appeal, any stipulation that the Ketchum record be considered as a part of the bill, nor is it identified in any way. It is no part of the transcript certified from the circuit court. The clerk of that court certifies that what is before us is 'a true transcript of the record in case No. 1,677, of Pacific Railroad, (of Missouri,) Plaintiff, against Missouri Pacific Railway et al., Defendants, as fully as the same remain on file and of record in said case in my office.' It follows that the record in the Ketchum case was never made part of the record in this case, so far as appears from the only record which is before the court on this appeal. In regard to the bill in the Ketchum suit, and the decree, and the master's deed, and the order approving the deed, they are made a part of the bill in this suit, and identified by the annexing of copies. But the statement in the bill that the plaintiff prays liberty to refer to the files and records of the circuit court in the Ketchum suit, to show such and such things, can be of no force or effect to allow either party to claim, in this court, the right to produce or refer to anything as answering the description of such files and records, which it may assert to be such, or as being what the circuit court considered as before it. One of the assignments of error on this appeal is that the circuit court considered matters outside of the record, and matters not embraced in the bill. We are of opinion that this court cannot consider anything which is not contained in the bill and the exhibits which are annexed to it, and that it cannot look into anything otherwise presented as the files and records of the Ketchum suit, or of any other proceedings in any court, for the purpose of determining the questions arising on the demurrers to this bill.
14
The decision of the circuit court was placed upon the ground that the stockholders, being dissatisfied with the action of the directors and the attorney of the company in defending the foreclosure suit, were put on inquiry, and bound to do whatever it was in their power to do to protect their interests; that any individual stockholder was at liberty to apply to the court for leave to intervene and defend; that the stockholders were parties in interest, and, upon representing that fact to the court, and showing that the officers were not defending in good faith, they would, without doubt, have been allowed to defend; and that stockholders of a corporation, though not bound to intervene in a suit against the corporation, for the protection of their rights, cannot, after having notice that the officers are not faithfully defending a suit, neglect to intervene, or to take any steps in the way of endeavoring to do so, and permit a final decree to be entered, and a sale to take place, and then, after years have elapsed, be permitted to attack the validity of the proceedings.
15
The case, therefore, was made to turn on the question of laches. The decree was made June 6, 1876, the sale September 6, 1876, the report of sale September 15, 1876, the confirmation of the sale October 7, 1876, and the master's deed October 24, 1876. The present plaintiff took an appeal to this court from the decree, and from the order confirming the sale, February 1, 1877. It prosecuted that appeal in due form, and the case was heard here as soon as the court could hear it, as the bill states. It appears from the report of the case in 101 U. S. 289, that the present plaintiff contended here that it had not consented to the decree, and sought to examine the question of the alleged fraud, or unauthorized conduct of its solicitor and its officers, and also sought to defeat the jurisdiction of the circuit court, and to attack the propriety of the purchase by the solicitor. The conclusion of this court was that it could not discover any error that could be corrected by appeal. But, in its opinion, it said: 'The remedy for the fraud or unauthorized conduct of a solicitor, or of the officers of the corporation, in such a matter, is by an appropriate proceeding in the court where the consent was received and acted on, and in which proof may be taken and the facts ascertained.' Thereupon, this bill was immediately filed.
16
The demurrers in this case are to the whole bill. If any part of the bill is good the demurrers fail. The charges of fraud in the bill, which are admitted by the demurrers for present purposes, are sufficient to warrant the discovery and relief based on such charges, leaving for consideration only the questions of laches and of jurisdiction.
17
On the admitted allegations of the bill, there was no real defense made in the Ketchum suit, and the present plaintiff was prevented from making that defense by the unfaithful conduct of its solicitor and its directors, and the directors of the Atlantic Company. A case of that kind is one of which a court of equity will take cognizance. U. S. v. Throckmorton, 98 U. S. 61.
18
As to the question of laches, the pendency of the appeal taken in the Ketchum suit suspended the control of the circuit court, and of every other court, except this court, over that decree, in respect to the relief sought in this suit, of stting that decree aside and declaring it fraudulent and void, all the other relief asked being consequent on that. The appeal appearing to have been taken and prosecuted in good faith, in view of what appears in the bill herein, and in the report of the case in this court, we cannot hold, on this demurrer, that the time during which that appeal was pending can be counted against the plaintiff on the question of laches. Ensminger v. Powers, 108 U. S. 292; S. C. 2 SUP. CT. REP. 643.
19
As to the frauds alleged in the bill respecting the matters in the conduct of the suit, resulting in the decree, the right to relief is based on the view that the corporation itself, the present plaintiff, speaking and acting now for its stockholders as a body, was powerless then, because it was misrepresented by unfaithful directors, who did what was done and refused to do otherwise, and through whom alone it could then speak and act. The allegations in the bill, of facts showing the existence of hostile control of the corporate affairs of the plaintiff by its directors, from before the bringing of the Ketchum suit till after the foreclosure sale, are entirely adequate as against a demurrer. Under such circumstances, mere knowledge by or notice to the plaintiff, or its directors or officers, or more or less of its stockholders, is unimportant; and the plaintiff cannot be concluded by the failure of any number of its stockholders to do what unfaithful directors ought to have done, unless a case is shown of such acquiescence, assent, or ratification as would make it inequitable to permit what has been done to be set aside, or unless the rights of innocent purchasers have subsequently intervened, to an extent creating an equitable bar to the granting of relief. The bill in this case does not show such a state of things. While stockholders, more or less in number, may be allowed to interpose, if they have the means or the inclination to take upon themselves the burden of such gigantic controversies as are involved in the railroad transactions of the present day, it would go far to legalize condonation of such transactions as are set forth in this bill, if mere knowledge by helpless stockholders of the fraudulent acts of their directors were to prevent the corporation itself from seeking redress, if it acts promptly when freed from the control of such directors. Fruitlessly requesting unfaithful directors to resign and to employ other counsel, so far from throwing on the stockholders the peril of losing their rights, represented by the company, if they do not personally assert them in place of the directors, operates of itself, without more, only to aggravate the wrong. At the same time, it by no means follows that parties who have become interested in the plaintiff's corporation, with knowledge of the matters set forth in the bill, are entitled to the same standing, as to relief, with those who were interested in the corporation when the transaction complained of occurred.
20
As to the matters alleged which are extrinsic or collateral to the issues in the Ketchum suit, to what extent, greater or less, there is jurisdiction to examine them under this bill, is a question not to be decided on these demurrers to the whole bill. The bill is sufficient in regard to the other frauds alleged. But, in regard to one of those extrinsic matters, the bill states that specified property not covered by the mortgage was put into the decree without the knowledge of this plaintiff.
21
Upon the question of jurisdiction there can be no doubt that the circuit court, as the court which made the Ketchum decree, and had jurisdiction of the Ketchum suit, as this court, in Pacific R. R. v. Ketchum, 101 U. S. 289, held it had, has jurisdiction to entertain the present suit to set aside that decree on the grounds alleged in the bill, if they shall be established as facts, and if there shall be no valid defense to the suit, although the plaintiff and some of the defendants are citizens of Missouri. The bill falls within recognized cases which have been adjudged by this court, and have been recently reviewed and reaffirmed in Krippendorf v. Hyde, 110 U. S. 276; S. C. ante, 27. On the question of jurisdiction the suit may be regarded as ancillary to the Ketchum suit, so that the relief asked may be granted by the court which made the decree in that suit, without regard to the citizenship of the present parties, though partaking so far of the nature of an original suit as to be subject to the rules in regard to the service of process which are laid down by Mr. Justice MILLER in Pacific R. R. v. Missouri Pac. Ry. Co. 1 McCrary, 647; S. C. 3 Fed. Rep. 772. The bill, though an original bill in the ohancery sense of the word, is a continuation of the former suit, on the question of the jurisdiction of the circuit court. Minnesota Co. v. St. Paul Co. 2 Wall. 609, 633.
22
We do not see any force in the second and third grounds of demurrer, nor, at present, in the eighth. The seventh ground of demurrer alleges what is, if true, matter for exception, and so does the ninth, in part. As to the rest of the ninth it is matter for an answer. All the demurring parties seem to be proper parties.
23
If, as has been strenuously argued for the defendants, there are complete defenses on the merits to the bill, answers should have been put in and proofs taken. We can act only on what the bill brings before us, and all it alleges is admitted for present purposes. The future proceedings in the case may show that the allegations of the bill are untrue, or may disclose perfect defenses to the suit. But, as the suit now stands, the plaintiff is entitled to have the matters it alleges inquired into and adjudicated.
24
The decree of the circuit court is reversed, and the case is remanded to that court, with direction to overrule the demurrers, with costs, and to take such further proceedings in the suit as shall be proper, and not inconsistent with the opinion of this court.
1
S. C. 12 Fed. Rep. 641. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/151801/ | 613 F.3d 1380 (2010)
Larry J. HACKER and Nancy A. Hacker, Plaintiffs-Appellants,
v.
UNITED STATES, Defendant-Appellee.
No. 2009-1527.
United States Court of Appeals, Federal Circuit.
July 29, 2010.
*1381 Daniel P. Wendt, Miller & Chevalier Chartered, of Washington, DC, argued for plaintiffs-appellants. With him on the brief was David H. Hardin.
Matthew H. Solomson, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director.
Before DYK, MAYER, and SCHALL, Circuit Judges.
MAYER, Circuit Judge.
Larry J. and Nancy A. Hacker appeal a judgment of the United States Court of *1382 International Trade sustaining a decision by the United States Department of Agriculture ("USDA") denying their application for trade adjustment assistance ("TAA") cash benefits. See Hacker v. United States, 31 Int'l Trade Rep. 1632 (Ct. Int'l Trade 2009). We affirm.
BACKGROUND
The Hackers are farmers who harvest Concord and Niagara grapes in Berrien County, Michigan. After a 2001 drought destroyed a significant portion of their grape crops, they received an $80,000 disaster relief payment from the USDA. The Hackers applied for this payment on December 5, 2003, and received it on May 17, 2004.
In 2004, grape farmers in the United States were faced with an influx of low-priced grapes from Argentina. Accordingly, in March 2006, the Secretary of the USDA certified Michigan Concord grape producers for TAA benefits for the 2004 marketing year. See 71 Fed.Reg. 14,677 (Mar. 23, 2006). The Hackers thereafter timely applied for TAA cash benefits, but their application was denied on the ground that they had failed to establish that their net farm income had declined between 2003 and 2004.
The Hackers then appealed to the Court of International Trade pursuant to 19 U.S.C. § 2395 and 28 U.S.C. § 1581(d)(4). Subsequently, pursuant to an agreement by the parties, the Court of International Trade remanded the case to the USDA. On April 10, 2007, the USDA issued a remand determination, rejecting the Hackers' application for TAA benefits on the ground that their net farm income, as reported on their federal income tax returns, had not declined between 2003 and 2004. The Hackers then filed an amended complaint with the Court of International Trade and moved for judgment upon the agency record. They argued that the USDA should not have relied solely upon their income tax returns in determining whether their net farm income had declined and that the agency erred in including the $80,000 disaster relief payment in calculating their 2004 net farm income. The Court of International Trade rejected these arguments, however, and sustained the USDA's decision denying the Hackers' application for TAA cash benefits.
The Hackers then timely appealed to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(5).
DISCUSSION
The Trade Act of 1974, Pub.L. No. 93-618, 88 Stat. 1978 (1975), provided TAA benefits to U.S. workers who had been adversely affected by foreign competition. This trade assistance program was made available to farmers in 2002. See Trade Act of 2002, § 141, Pub.L. 107-210, 116 Stat. 933, 946-53. Congress recently made significant changes to the TAA program pursuant to the American Recovery and Reinvestment Act of 2009, Pub.L. 111-5, §§ 1856, 1881-94, 123 Stat. 115.[1]
In 2006, when the Hackers applied for TAA benefits, a farmer seeking to qualify for cash assistance was required to: (1) establish that he belonged to an industry certified by the Secretary of the USDA as having been harmed by increased volumes of low-priced imports, (2) show that he met certain gross income limitations, and (3) demonstrate that he had suffered a decline in "net farm income" in the year for which he was seeking benefits. See 19 U.S.C. § 2401e (2006).
*1383 The only issue presented on appeal is whether the Court of International Trade correctly upheld the USDA's determination that the Hackers' were ineligible for TAA cash benefits because their net farm income was higher in 2004 than it was in 2003. The Hackers acknowledge that their net farm income, as reported on Schedule F of their federal income tax returns, was higher in 2004 than it was in 2003. They argue, however, that they are entitled to TAA cash benefits because the USDA should have recalculated their income on an accrual basis, thereby shifting the $80,000 disaster relief payment they received in 2004 to an earlier tax year.
We find this argument unpersuasive for several reasons. First, because the USDA's regulatory definition of "net farm income" was promulgated pursuant to an express delegation of congressional authority, it is entitled to broad deference from this court. Second, as we explained in Steen v. United States, the TAA statute was intended to provide cash benefits to those farmers and fishermen who had suffered an "overall loss in their farming (or fishing) income" as a result of competition from imported goods. 468 F.3d 1357, 1362 (Fed.Cir.2006). Because the Hackers' total net income from all farm sources increased, rather than decreased, between 2003 and 2004, they did not suffer an "overall loss" in their farming income. Finally, even assuming arguendo that the USDA had an obligation to consider whether a TAA applicant's net farm income had declined when calculated on an accrual basis, the Hackers failed to provide the documentation necessary to certify that their net income, calculated on an accrual basis, was lower in 2004 than it was in 2003. See 7 C.F.R. § 1580.301(e)(6) (2006).
I.
"Congress expressly delegated to the Secretary of Agriculture the responsibility to determine `net farm income'" for purposes of awarding TAA cash benefits. Steen, 468 F.3d at 1362. The TAA statute specified that cash benefits were available only if a "producer's net farm income (as determined by the Secretary) for the most recent year [was] less than the producer's net farm income for the latest year in which no adjustment assistance was received by the producer...." 19 U.S.C. § 2401e(a)(1)(C) (2006) (emphasis added). Subsequently, pursuant to formal notice and comment rulemaking, the Secretary promulgated a regulation defining "net farm income" for TAA purposes as the net farm income reported on an applicant's federal income tax return. See 7 C.F.R. § 1580.102 (2006) ("Net farm income means net farm profit or loss, excluding payments under this part, reported to the Internal Revenue Service for the tax year that most closely corresponds with the marketing year under consideration.").
"If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (footnote omitted); see Steen, 468 F.3d at 1363 (emphasizing that the USDA's definition of "net farm income" must be given "broad deference"). We see nothing in the agency's regulatory definition of "net farm income" which is arbitrary, unreasonable or inconsistent with the objectives of the trade assistance statute. See Steen, 468 F.3d at 1363 (concluding that the USDA's decision to define "net fishing income" as the net *1384 fishing income reported on a TAA applicant's tax return was reasonable). To the contrary, the net farm income reported on a farmer's federal tax return should, quite obviously, correspond to his actual income from farming activities.[2] Although many taxpayers are permitted to report income on either an accrual or a cash basis, the reporting method selected must "clearly reflect" the income the taxpayer has received. See 26 U.S.C. § 446(b). Thus, regardless of whether a farmer elects to report income on an accrual or a cash basis, use of income tax data provides a reasonably accurateas well as an administratively efficientmeans of identifying those farmers who have suffered a loss in net farm income for TAA eligibility purposes. See Gulf Oil Corp. v. Hickel, 435 F.2d 440, 446 (D.C.Cir.1970) ("An agency confronted with a complex task may rationally turn to simplicity in ground rules, and administrative convenience, at least where no fundamental injustice is wrought."); see also Dixon v. Love, 431 U.S. 105, 114, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977) (recognizing "the substantial public interest in administrative efficiency").
Steen did acknowledge that there might be certain anomalous situations in which it would be inappropriate to rely exclusively on income tax information in determining net farm or fishing income. 468 F.3d at 1363-64. We explained that there could be some circumstances in which the net fishing or farm income reported on an applicant's tax returns included income from sources other than fishing or farming or failed to account for all fishing or farming income. Id. In such circumstances, the agency might reasonably be required, in determining net farm income, to consider other financial information submitted by an applicant and not to rely "solely and inflexibly" on the net income figures reflected on the applicant's tax returns. Id. at 1364.
Here, however, the Hackers point to no evidence demonstrating that the net farm income reported on their tax returns included non-farm income or failed to include all of their farm income. Because the $80,000 disaster relief payment the Hackers received in 2004 was intended to compensate them for crops lost as a result of drought, they properly included it in the calculation of their 2004 net farm income.[3] It is well-established that crop disaster payments constitute farm income in that "[a]gricultural entitlement payments which *1385 result from the actual disposition of a planted crop are proceeds of that crop." In re Schneider, 864 F.2d 683, 685 (10th Cir.1988); In re Munger, 495 F.2d 511, 513 (9th Cir.1974) (Government farm subsidy payments are "proceeds" from crops.); In re Shore Ltd., No. 99-406892, 2001 WL 34677398, at *3, 2001 Bankr.LEXIS 2176, at *8 (Bankr.D. Kan. June 4, 2001) ("Historically, courts have held that disaster payments and governmental entitlement payments are proceeds of the debtor's crops."). There is no dispute, moreover, that taxpayers using the cash method of income reporting must report income in the year it is received. See, e.g., Healy v. Comm'r, 345 U.S. 278, 281, 73 S.Ct. 671, 97 L.Ed. 1007 (1953). Because the Hackers received the crop disaster payment in 2004, they were required to include that payment in the calculation of their 2004 net farm income. See IRS Revenue Ruling 67-404 (1967) (explaining that a farmer who reports income on a cash basis must report government subsidy payments in the year they are received, even if the subsidy payments relate to crops lost in earlier tax years); IRS Revenue Ruling 65-98 (1965) ("A taxpayer who reports income on the cash receipts and disbursement method, and who receives payments under the provisions of the United States Department of Agriculture `1963 Feed Grain Program,' shall include the amount of the advance and final payments in gross income when they are received, or when they are made available, whichever is the earlier."). Thus, this is not a case in which the net income figure reported on a TAA applicant's tax return includes income from non-farm sources or fails to include income from all farm sources.
II.
Furthermore, allowing the Hackers to exclude the $80,000 crop disaster payment from the calculation of their 2004 net farm income would be contrary to the purpose of the TAA statute, which was designed to provide cash benefits "to persons whose overall financial well-being has suffered as a result of import competition." Steen, 468 F.3d at 1362 (emphasis added). Because those farmers or fishermen who do not experience an overall decline in net farm or fishing income have presumably "successfully adjusted to the competition from imports, there is no reason to suppose that Congress would want them to share in the cash benefits afforded under the [TAA] program." Id.
In Steen, the USDA denied TAA cash benefits to a commercial fisherman because he had failed to show that his net fishing income was lower in 2002 than it was in 2001. Id. at 1360. On appeal, the fisherman argued that the agency had erred in denying his application for benefits because although his total income from all fishing activities had increased between 2001 and 2002, his income from the fishing of Pacific salmonthe commodity that had been certified for TAA benefitshad decreased. This court, however, rejected that argument, explaining that when Congress used the term "net farm income" in the TAA statute "it meant to encompass income from all farm products, not simply adversely affected commodities." Id. at 1361 (emphasis in original). Accordingly, because there had been no "overall loss" in income from all fishing activities, the commercial fisherman was not eligible to receive TAA benefits. Id. at 1362.
A similar analysis applies here. Although the Hackers' income from actual grape production was allegedly lower in 2004 than it was in 2003, their total farm income increased in 2004 due to their receipt of the $80,000 crop disaster payment. Because the Hackers did not experience an "overall loss" in farm income between 2003 *1386 and 2004, the USDA correctly rejected their application for TAA cash benefits.
III.
Finally, even assuming arguendo that the USDA had any obligation to consider whether a TAA applicant's net farm income had declined when calculated on an accrual rather than a cash basis, the Hackers failed to provide the documentation necessary to certify that their net farm income, calculated on an accrual basis, was lower in 2004 than it was in 2003. In 2006, a TAA applicant was required to certify that his "net farm income" had declined in the year for which he was seeking TAA benefits. 7 C.F.R. § 1580.301(b)(4) (2006). To comply with this requirement, an applicant had to provide either "[s]upporting documentation from a certified public accountant or attorney," or "[r]elevant documentation and other supporting financial data, such as financial statements, balance sheets, and reports prepared for or provided to the Internal Revenue Service or another U.S. Government agency." 7 C.F.R. § 1580.301(e)(6). The Hackers, however, failed to provide "[s]upporting documentation from a certified public accountant or attorney" establishing what their net farm income would have been in 2003 and 2004 if that income had been calculated on an accrual rather than a cash basis.[4] Nor did they provide comprehensive financial statements or balance sheets demonstrating that their net farm income, calculated on an accrual basis, was lower in 2004 than it was in 2003. Instead, they simply argued for an ad hoc shifting of certain income and expense items to different tax years. Because the Hackers did not submit the supporting documentation required by 7 C.F.R. § 1580.301(e)(6), they failed to certify that their total net farm income, calculated on an accrual basis, was lower in 2004 than it was in 2003. The USDA, therefore, correctly denied their application for TAA cash benefits.
CONCLUSION
Accordingly, the judgment of the United States Court of International Trade is affirmed.
COSTS
No costs.
AFFIRMED.
NOTES
[1] The TAA statute no longer requires farmers to demonstrate a decline in net farm income in order to qualify for cash benefits. See 19 U.S.C. § 2401e (2009).
[2] "For an accrual-method taxpayer, income is includible in gross income when all the events have occurred which fix the right to receive such income.... In contrast, a cash-basis taxpayer reports income only when it is actually or constructively received." MMC Corp. v. Comm'r, 551 F.3d 1218, 1218 n. 2 (10th Cir.2009) (citations and internal quotation marks omitted). Once a taxpayer has elected to use an accounting method for tax reporting purposes, he generally can not change his method of accounting without first obtaining the consent of the Internal Revenue Service ("IRS"). See 26 U.S.C. § 446(e). Here, the Hackers elected to report their farm income on a cash basis for income tax purposes, and they offer no persuasive reason why they should now be permitted to use the accrual method to calculate net farm income for TAA eligibility purposes.
[3] Benefit payments that a farmer has previously received under the TAA program are specifically excluded from the calculation of his net farm income for purposes of determining TAA eligibility. See 7 C.F.R. § 1580.102 (2006) ("Net farm income means net farm profit or loss, excluding payments under this part, reported to the Internal Revenue Service for the tax year that most closely corresponds with the marketing year under consideration." (emphasis added)). The $80,000 payment the Hackers received in 2004, however, was not a trade assistance payment, but was instead made pursuant to the USDA's crop disaster program.
[4] The Hackers' reliance on the Anderson cases from the CIT is misplaced. See Anderson v. United States, 462 F.Supp.2d 1333 (Ct. Int'l Trade 2006) ("Anderson I"); Anderson v. United States, 469 F.Supp.2d 1300 (Ct. Int'l Trade 2006) ("Anderson II"); Anderson v. United States, 493 F.Supp.2d 1288 (Ct. Int'l Trade 2007) ("Anderson III"). As a preliminary matter, it should be noted that the Hackers, unlike the TAA applicant in the Anderson cases, failed to submit tax forms prepared by a certified public accountant establishing what their net farm income would have been using an accrual method of accounting. See Anderson III, 493 F.Supp.2d. at 1292. More fundamentally, to the extent that Anderson I suggests that the USDA has an obligation to recalculate, on accrual basis, the net farm income of all TAA applicants, it is inconsistent with our decision in Steen. As discussed previously, Steen held that, absent a showing that income tax data includes non-farm income or fails to include all farm income, the USDA can properly rely on the net farm income reported on an applicant's tax returns in determining whether he has suffered a decline in net farm income. 468 F.3d at 1363 (rejecting the argument that when determining "net farm income" for TAA eligibility purposes, the USDA "is barred from using the standards applied under the Internal Revenue Code as a basis for making that determination"). | 01-03-2023 | 07-29-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3867706/ | This is an amicable suit for the specific performance of a contract for the purchase of a lot of land by the defendant of the complainant. The defendant is ready to complete the purchase if the complainant can make a good title. The question of title arises as follows, to wit: Said lot and the lot next east formerly belonged to different owners, who agreed with each other by covenant to leave open a strip along the dividing line twelve feet wide, six feet on each side, and to keep the same open as a gangway for the common use and benefit of the covenantors and their heirs. Subsequently said lot next east came, under the will of Abigail Whipple, to Robert Sherman and his heirs in trust for Laura Carrique for life, separately from her husband, and in further trust, after her death, to convey it to the persons designated to take in remainder. Certain powers were given to said Sherman and the trustee of another estate under the will as follows, to wit: *Page 246
"And for the better management and improvement of the estate and property herein and hereby devised in trust, the said trustees severally shall have power, and they are hereby severally authorized and empowered in the execution of their respective trusts, to lease the whole or any portion of said real estate, for such period and upon such terms as the trustees may think proper; to make partition of any estate of which each may be seized in common with the other, or with any other person or persons; and to make and execute valid deeds of partition thereof, and, with the assent in writing of the beneficiary of the trust, to make sale of any portion of the trust estate and property held by each trustee, in his discretion, and upon such sale to execute good and valid conveyances of the same to the purchaser thereof, and, upon receipt of the purchase money therefor, to invest the same in other productive real estate, stock, or securities, and to stand seized of such investments upon the same trusts and for the same purposes and for the same period," etc.
It will be seen that the powers are given in very general terms for the better management and improvement of the trust estates, and they should be reasonably construed in furtherance of those purposes.
Subsequently, in 1868, the lot in suit belonged to William Fletcher, who wished to erect a building thereon covering the entire lot, i.e. his half of the gangway as well as the rest of it; and thereupon said Sherman, with the written assent of said Laura, entered into an agreement under seal with said Fletcher, by which he agreed that said Fletcher should have leave to build over said half of the gangway, releasing to him and his heirs all his, Sherman's, right, title, and interest therein, and also that said Fletcher should have leave to build a partition wall not less than sixteen inches wide on the dividing line equally on each side of it, said Fletcher on his part releasing his right in the east half of the gangway, and in the part of the wall to be built thereon, to said Sherman as trustee, his heirs and assigns. The defendant contends that this agreement was not within either of the powers given to Sherman by the will. The ground of this contention is that the only power under which it can be claimed to have been authorized is the power of sale, and a power to sell is only a *Page 247
power to sell for money; it does not include a power to exchange, or even a power to sell partly for money and partly for other considerations of value.
Sherman, having been sworn as a witness, testified that Fletcher desired to build a larger building than he could build without occupying half of the gangway; that he agreed with Fletcher that on payment to him of $2,000 Fletcher might build his party wall one half on his part of the gangway, with the right to the trust estate to use it without payment; that the money was paid and the wall built, and that, together, they were the consideration for the covenant. He was asked on cross examination if the release of the east half of the gangway was not a part of the consideration, and answered that it was a part of the contract. He also testified that, soon after the contract, a building was erected by him on the east half of the gangway which entirely closed it.
The testimony shows that certain advantages accrued to the trust estate under the covenant in addition to the $2,000 paid, to wit, an interest in the party wall and a release of the easement, and the question is whether because of them the trustee must be held to have exceeded his authority. It seems to us that the transaction was essentially a sale, and that the advantages, other than the pecuniary, which have accrued to the trust estate, were rather incidental results of the contract than independent inducements to it, and that it would therefore be a mistake to hold that the trustee exceeded his authority. Thus the gangway was virtually destroyed as a gangway by the release of one half of it to Fletcher, and it is not clear that the acceptance of the release by Fletcher and his action thereon did not operate as a renunciation of his easement on the other half, independently of his release to Sherman. Steere v. Tiffany, 13 R.I. 568. And the making the wall a party wall was not simply a consideration moving from Fletcher to Sherman, but a benefit to both parties. The case differs widely from Hampton v. Moorhead, 62 Iowa 91, cited by the defendant; for there an agent, specially empowered to sell a parcel of real estate, disposed of it partly for money and partly for a patent right, a thing having no relation to the subject of the power. Moreover, so far as there was any exchange, it was in the nature of partition, which was authorized. At law the covenant *Page 248
between Sherman and Fletcher is undoubtedly binding, Sherman being the owner of the legal estate in fee simple; and we are of opinion that no court of equity would declare it to be void at the instance of any of the cestuis que trustent, either for life or in remainder.
Let a decree be entered for specific performance as prayed for. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2725440/ | Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Mar 06 2014, 9:12 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BARBARA J. SIMMONS GREGORY F. ZOELLER
Oldenburg, Indiana Attorney General of Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL WILLIAMS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1307-CR-569
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Stanley E. Kroh, Commissioner
Cause No. 49G16-1301-FD-1081
March 6, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge
Case Summary and Issue
Following a bench trial, Michael Williams was convicted of battery resulting in
bodily injury, a Class A misdemeanor. He appeals, raising one issue for our review:
whether sufficient evidence supports his conviction. Concluding the State presented
sufficient evidence to support the conviction, we affirm.
Facts and Procedural History
The facts most favorable to the judgment indicate that on December 28, 2012,
Sherry Douglas returned to her apartment after shopping for groceries. Douglas was angry
because she called Williams, her then-boyfriend, to ask for help carrying in the groceries
but Williams did not answer the phone call. Inside the apartment, Douglas repeatedly
expressed to Williams that she wanted to be left alone and did not want to talk about the
missed phone call. Williams became upset, threw dishes and pushed her against the kitchen
counter. Douglas picked up a frying pan and swung it at Williams but did not make contact
with him.
Douglas then gathered Williams’s clothes and belongings from the apartment and
threw them into the hallway. After Williams left the apartment, Douglas heard a loud bang
on the door. When she opened the door, Williams pulled her by her arms out into the
hallway, threw her to the floor, pinned her down, and hit her three to four times in the face
with a closed fist. Williams left the building but returned shortly thereafter, grabbed
Douglas and began shaking her.
Tiana Cathy, Douglas’s neighbor, heard several loud noises and witnessed Williams
shaking Douglas. Cathy called the police at Douglas’s request. By the time Officer
2
Nathanial Schauwecker responded to the call, Williams had left the scene. When Officer
Schauwecker encountered Douglas, she was upset and disheveled and he saw discoloration
and swelling on her forehead, the right side of her face, and her lip. Inside the apartment,
Officer Schauwecker noted that the apartment was generally well-kept but the kitchen was
in disarray and the apartment door was damaged. Photographs taken at the scene and
admitted at trial depict broken dishes on the kitchen counter and a dent to the door of the
apartment. Photographs taken of Douglas and admitted at trial show a bruise on Douglas’s
left leg and swollen eyes. Douglas testified that she also had bruises on her face and
forehead, a busted lip, swollen nose, and sore ribs, and that her “whole body ended up
hurting the next day.” Transcript at 25.
The State charged Williams with battery as a Class A misdemeanor. Following a
bench trial, Williams was convicted as charged and sentenced to 365 days with credit for
twelve days served and 353 days suspended to probation. 1 Williams now appeals his
conviction.
Discussion and Decision
I. Standard of Review
In reviewing claims for sufficiency of evidence, we do not reweigh evidence or
judge the credibility of the witnesses. Corbin v. State, 840 N.E.2d 424, 428 (Ind. Ct. App.
2006). We only consider the evidence most favorable to the judgment and the reasonable
inferences that may be drawn from it. Id. As long as each element of the charged crime
1
The State also charged Williams with criminal confinement, a Class D felony but that charge was dismissed
during the trial at the State’s request.
3
may be satisfied beyond a reasonable doubt from the probative evidence, the judgment will
be affirmed. Davis v. State, 598 N.E.2d 1041, 1045 (Ind. 1992).
II. Sufficiency of Evidence
To convict Williams of battery, the State was required to prove that Williams
knowingly or intentionally touched Douglas in a rude, insolent, or angry manner that
resulted in bodily injury. Ind. Code § 35-42-2-1(a)(1)(A). Bodily injury is defined as “any
impairment of physical condition, including physical pain.” Ind. Code § 35-31.5-2-29.
Williams argues that the State failed to prove his guilt because he denied engaging in an
altercation with Douglas, no one saw them fighting, and the photographs do not support
Douglas’s claim of bodily injury.
Douglas testified that Williams grabbed her forearms, threw her into the hallway,
and punched her face three to four times with a closed fist. Douglas also testified that she
felt pain and experienced bruising and swelling on her forehead, nose, lip, ribs, and leg. In
addition, Cathy testified that she saw Williams “shaking [Douglas] kind of violently” while
he was apologizing to her. Tr. at 34-35. Officer Schauwecker testified that he observed
swelling and discoloration to Douglas’s face. Williams argues that this testimony is not
enough to sustain the conviction of battery.
The uncorroborated testimony of a victim that she suffered any pain from a rude,
insolent, or angry touch is sufficient to sustain a battery conviction alleging bodily injury.
Bailey v. State, 979 N.E.2d 133, 137-38 (Ind. 2012). In Bailey, the victim’s testimony that
the defendant poked her in the forehead and shoved her, causing her pain, was the only
evidence put forth by the State at trial. The defendant denied putting his hands on the
victim in any way; however, the trial court found him guilty. Our supreme court affirmed
4
the conviction noting the trial court credited the victim’s testimony and that any physical
pain is sufficient to prove impairment of physical condition. Id. at 143. Here, Douglas
testified that Williams’s actions caused her pain, swelling, and bruising. This is sufficient
to prove battery.
Williams argues that Douglas’s “ulterior motive for alleging a battery when none
occurred is just too blatant to ignore.” Brief of Appellant at 8. This is an invitation for us
to reweigh the evidence and assess the credibility of the testimony for ourselves. The trial
court was not persuaded by Williams’s testimony and instead credited Douglas’s. This
court will not invade the fact finder’s exclusive province to determine the credibility and
weight of evidence. Jackson v State, 925 N.E.2d 369, 375 (Ind. 2010).
Conclusion
The State presented sufficient evidence to support Williams’s conviction for battery.
We therefore affirm the conviction.
Affirmed.
BARNES, J., and BROWN, J., concur.
5 | 01-03-2023 | 09-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3989609/ | This is an appeal from an order of the Windham County Court overruling petitionee's demurrer to the petition. Exceptions were allowed the petitionee and the case comes here before final judgment under the provisions of P.L. 2072.
The petitionee is a public service corporation engaged in the manufacture, sale and distribution of electric energy and for the purposes of that business operates and maintains a dam across the Connecticut River between Bellows Falls, Vermont, and North Walpole, New Hampshire. The petition is brought under the provisions of an act of the Legislature of October 25, 1792, and asks to have the court assess damages for injuries to the property of the *Page 537
petitioners alleged to have been caused by the maintenance and operation of the petitionee's dam. The act of October 25, 1792, incorporated "the company for rendering the Connecticut River navigable by Bellows Falls" and granted to that corporation the exclusive privilege of erecting and continuing locks on or by Bellows Falls on the Connecticut River within the State of Vermont. By successive amendments the original name of the corporation has been changed to The Bellows Falls Canal Company and later to The Bellows Falls Hydro-Electric Corporation and the petitioners claim that the charter provisions of the 1792 act imposing obligations on the corporation now apply to the petitionee. The petitionee specifies as one of its grounds of demurrer that the petition fails "to allege any facts to show that the provisions of the act of October 25, 1792, apply to the petitioners. . . ."
The provisions of that act relied upon by the petitioners are as follows:
"And it is hereby further enacted by the Authority aforesaid that if it shall be found necessary to fully effect the intention of this act to erect a dam on Connecticut River and thereby flow or otherwise injure the property of any of the good citizens of this State such person or persons so injured shall upon application to the county court for the county of Windham be entitled to receive from the company aforesaid such compensation as the county court shall adjudge just and equitable for the injury which such person or persons has sustained or probably may in future sustain by flowing the said land or in any other way whatsoever and a record being made thereof by the clerk of said court shall be a complete bar to any future application for any compensation for any injury done to the same property whether real or personal and any action for damage sustained by the dam aforesaid shall be commenced in the mode prescribed by this act and in no other unless the company shall have failed to pay the sum or sums assessed by the court aforesaid any law usage or custom to the contrary notwithstanding." *Page 538
The first part of the charter paragraph from which the above quotation is taken deals with a method of providing compensation to owners for lands which it "may be found necessary" to take for the construction of locks as contemplated by the act.
The material allegations in the petition may be briefly stated as follows: The petitioners own land in Westminister below Bellows Falls and on the Connecticut River. The petitionee is a Vermont corporation organized by law pursuant to the Acts of the Legislature of October 25, 1792, and subsequent amendments. The petitionee in 1928, removed the dam it had previously maintained at Bellows Falls and replaced it with a new dam having five bays or sections in three of which flashboards were installed and the other two were equipped with rollergates. The flash boards extended about 13 feet above the concrete crest of the dam and can be removed at will. The gates when closed extend about 17 feet above the concrete crest and can be raised clear of the water. This dam as maintained raises the water about 11 feet higher than the old one and the pond thus formed extends about 26 miles above the dam. At about the same time the petitionee widened and deepened the canal and at its lower end installed a hydro-electric plant for the purpose of generating electricity from water power. This plant is capable of passing water at a greater flow rate than the plant formerly maintained by the petitionee for water power purposes. The new dam is operated so as to keep the water level in the pond just below the top of the flashboards and gates when closed. Every time the river rises to high water stage, this level is maintained by opening the gates and removing the flashboards, thus increasing the natural stream flow at such times. Also at about the time the new dam was built, the petitionee widened and deepened the gorge below the dam and removed rock formations therefrom and revetted the banks so that the gorge is now capable of passing water faster and in greater volume than before this was done. This new gorge condition, in connection with the operation of the dam, materially increases the stream flow below the dam during flood times. The petitionee periodically closes off the flow of the stream at the dam in order to store water in the pond for the operation of the wheels thus causing a substantial fluctuation in the water level below the dam and on the premises of the petitioners whereby their lands are being eroded and sloughed off and the stream channel is *Page 539
gradually being filled. The water current in the pond above the dam is slower than the natural river flow there would be and this condition in connection with the operation of the dam causes ice to form along the banks in winter in large quantities and to reach a greater thickness on the pond surface than it would otherwise do. For these reasons the ice does not break up as early in the spring as it does above the pond and this condition results in ice jams forming at the upper end of the pond causing the water to be retarded in its flow until such time as the ice goes out releasing large quantities of water and greatly increasing the natural flow of the stream. The petition further alleges: "By reason of the premises, or some of them, in concurrence with freshets, the petitioners' lands have been overflowed, flooded and eroded, the river banks wholly washed away in places, huge deposits of sand and debris left on other portions of petitioners' lands, thereby damaging them for agricultural purposes, or any purpose; that the petitioners' buildings were damaged in, to wit, 1936." The petition concludes with a prayer for a hearing before the Windham County Court and assessment of damages in accordance with the provisions of the act of October 25, 1792, as hereinbefore set out.
The petitioners contend that while the charter provisions in the Act of 1792 originally applied to a dam erected for the purpose of making the Connecticut River navigable by Bellows Falls, by subsequent amendments those provisions are made to apply to the dam and plant of the petitionees described in the petition. The first amendment of the charter to which our attention is directed is made by No. 135 of the Acts of 1869. Among other provisions of that act are the following. "All the rights and privileges heretofore granted said company are hereby extended to them for the purpose of manufacturing, selling or renting of water power and the transaction of such business as may be incidental thereto." This act contains the first mention of using the dam for power rather than navigation purposes. However, it contains no specific reference to the use of the dam for the generation of electric energy nor the sale and distribution of same for public use. The petitionee received its first legislative grant of authority to so do under the provisions of No. 365 of the Acts of 1912, which act is also an amendment to the 1792 charter. In section 1, that act states: "The Bellows Falls Canal Company chartered by an act approved October 27 (sic) *Page 540
1792 . . . under the authority of which it has ceased to render navigation service." The amendment makes petitionee's rates for electric energy to be furnished for public use subject to the jurisdiction of the Public Service Commission. Section 9 of that act states:
"Said Bellows Falls Canal Company shall at all times be subject to the general laws of this state from time to time in effect and applicable to water power corporations, and shall be subject to all duties, limitations and restrictions imposed thereby; and if at any time said Bellows Falls Canal Company shall engage in the business of manufacturing, distributing and selling to the public electricity for light, heat or power purposes, it shall be under and subject to all general laws of this state then and from time to time in effect applicable thereto, and shall be subject to the duties, limitations and restrictions thereby imposed, and shall be subject to the supervision and authority of the Public Service Commission in the manner and to the extent provided in Act. No. 116 of the Acts of 1908 and any acts amendatory thereof or supplemental thereto."
No. 163 of the Acts of 1915 deals with public service corporations other than railroads. Section 9 of that act states:
". . . All corporations heretofore formed by special act or under the general laws of this State, which are conducting any business (other than a railroad business) subject to regulation by the public service commission, shall, with respect to all future acts, be deemed to be within the provisions of this act and the provisions of the general corporation act in like manner as a corporation formed hereunder, but no corporation heretofore formed shall do any act in violation of any restriction contained in its charter. But such repeal shall not affect any proceedings before the public service commission heretofore begun, and the foregoing provisions of this section shall be subject to all exceptions and qualifications as are contained in § 42 of the general corporation act." *Page 541
From the foregoing it appears that the provisions of the 1792 Act relied upon by the petitioners provided a method by which a property owner could obtain compensation for damage suffered because of the erection of a dam necessary "to fully effect the intention" of that act, that is, to make the Connecticut River navigable by Bellows Falls. The damages alleged in the petition are claimed to result from the operation of the petitionee's hydro-electric plant, including a dam erected in 1928 for the purpose of furnishing water power for the generation of electric energy. There is no provision in the Act of 1792 making provisions of that Act applicable to any dam other than the one named in the act and there are no provisions in the amendments of the acts of 1869 and 1912 bringing those provisions of the 1792 act forward and making them applicable to the facts stated in the petition. The question here presented is similar to that considered by this Court in Foster v. Stafford National Bank,57 Vt. 128, 132. Briefly stated the facts in that case were as follows. By an act of the Legislature of 1874 Foster was given authority to enter on the river forming the outlet of Lake Willoughby and remove obstructions therefrom for the purpose of making the river navigable for floating logs on that portion of the river designated in the act. The river so improved was open for public use for the purpose stated. § 2 of the act provided a method of fixing and obtaining payment of damages that might result from the performance of the acts authorized in the first section. It was later thought that the river would be of greater use for floating logs if gates were installed at the outlet of the lake, for the purpose of controlling the flow of water from the lake into the stream. The Legislature of 1878 granted Foster the authority to so install gates for the purpose stated. The owner of the land on which the gates were placed interfered with the operation of the gates and Foster brought a bill in chancery asking that the landowner be restrained from such acts. Concerning this matter this Court stated at page 132, 57 Vt as follows: "No provision is made in the amendment for the ascertainment and payment of the damages that might be occasioned by the entry upon and the occupation of the land of the defendant for the erection and maintenance of gates thereon and the raising of waters of the lake. It is claimed that the amendment is subject to the provisions of the act of 1874 . . . but that act makes no provision for the ascertainment and payment of damages for such acts as the orator was *Page 542
authorized to do under the act of 1878." For the reasons stated it was held that the provisions in § 2 of the 1874 act did not apply to the acts of Foster authorized by the 1878 amendment. Also see Coe v. Hall, 41 Vt. 325. In the case at bar it is to be noted that the 1912 amendment makes the petitionee subject to the general law of the State then in force and also to subsequent legislative enactments applicable to the privileges granted therein thus making the petitionee subject to the provisions of No. 163 of the acts of 1915 hereinbefore mentioned.
In Trybulski et al v. Bellows Falls Hydro-Electric Corporation,112 Vt. 1, 20 A.2d 117, the petitioners in the case at bar joined with others in a petition to the public service commission asking that, in accordance with the provisions of the petitionee's 1792 charter, the commission assess past and future damages which it was claimed had resulted and would in the future result to petitioners' property from the operation of petitionee's dam. The dam there mentioned is the same one with which we are concerned in this case. For reasons stated in the opinion, this Court held that the public service commission was without jurisdiction to assess damages under the provisions of the 1792 charter as prayed for in the petition.
From what has been hereinbefore stated, it follows that the original charter provisions, here relied upon by the petitioners, have no application to the petitionee in the performance of those acts and the exercise of the privileges authorized by the 1912 amendment and subsequent legislative enactments. As to those, the 1912 amendment makes the petitionee subject to the general law then applicable and to all subsequent material legislation. As to the alleged wrongful acts set forth in the petition, the petitionee stands in the same position and is liable to the same extent and in the same manner as though it were a corporation formed under the general law of this state after the passage of No. 163 of the Acts of 1915 and before the erection of the dam described in the petition. It follows that the petitionee's demurrer should have been sustained on the grounds stated therein. The conclusion here reached makes the consideration of other questions briefed unnecessary.
Judgment overruling the petitionee's demurrer is reversed, thedemurrer is sustained and the petition is dismissed with costs tothe petitionee. *Page 543 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3410218/ | On December 29, 1920, respondent brought an action against defendant Naylor on three promissory notes *Page 270
aggregating $20,000. Writ of attachment was issued on the same day, and on December 30, 1920, the sheriff of Bannock county levied on 1,381 head of sheep as the property of defendant Naylor. Loren C. Woolley on January 12, 1921, filed his complaint in intervention, alleging his ownership of the sheep attached by the sheriff, his service upon the sheriff of written notice of ownership and demand for the return of said sheep to him, the demand by the sheriff and the giving by respondent of an indemnity bond in the sum of $15,000, and the sheriff's refusal to deliver the sheep to intervenor, the delivery of 1,450 sheep to defendant Naylor in October, 1908, by the intervenor and his father, John W. Woolley, under a contract by which Naylor was to run said sheep and pay therefor a certain amount of wool each year and certain increase for each 100 head of sheep, and the relinquishment on December 14, 1920, by said Naylor to intervenor of all claim to said sheep and the repossession of said sheep on said last-named date. The intervenor alleged the value of the sheep attached to be at least $15,000, and judgment for that sum is prayed for, or that he be given immediate possession of the sheep.
Respondent answered the complaint in intervention, denying the material allegations thereof and denying that the sheep in controversy were of the value of "at least fifteen thousand dollars ($15,000), or any sum in excess of ten thousand dollars ($10,000)." As a further answer and separate defense, respondent alleged the bringing of its suit against Naylor on December 29, 1920, to recover judgment on three promissory notes aggregating $20,000, besides interest and attorney's fees; that said indebtedness was then due, and that respondent at the times mentioned in said notes and for a long time prior thereto, and at all times since, was a creditor of said Naylor in good faith and for value, and was such on the date of the attachment of said sheep; that respondent in making loans to the defendant, represented by said promissory notes, nine of which have been paid, believed and relied upon the fact that the said defendant was the owner of the sheep which are the subject *Page 271
of this attachment; that if the intervenor had any interest in or to said sheep or any sheep at the time said loans were made or for a long time prior thereto or subsequent thereto the said intervenor should not be permitted to claim any title to or interest in said sheep, for the reason that during all the times that respondent made loans to the defendant the sheep mentioned in the complaint in intervention were in the possession and under the control of defendant, with all the indicia of ownership, and that the defendant in the usual course of business made application to respondent for credit without any notice or knowledge by respondent of intervenor's claim to said sheep, and further, that the intervenor had failed and neglected to record in the state of Idaho the lease under which he claimed the defendant held the sheep claimed by the intervenor; that the respondent did not know at the time it became a creditor of said defendant, or at any time, until December 14, 1920, that the intervenor claimed any title to or interest in said sheep and had no means of knowing that he did so claim, and relying upon the possession and ownership and apparent ownership of said defendant and being induced thereby did make the loans described in its complaint and did pay over to said defendant the sums of money evidenced by said promissory notes. For a further defense respondent alleged that if the intervenor had a lease upon any sheep which were in the control and possession of defendant, said lease did not cover the sheep taken under the attachment in this case.
Pursuant to stipulation between the parties by their respective counsel, the case between respondent and intervenor, who is appellant here, was tried before the court without a jury. Findings of fact and conclusions of law were made by the court, and judgment entered in favor of respondent. Appellant moved for a new trial, which was denied, and an appeal was taken from the judgment and the order denying a new trial.
Appellant assigns a large number of errors, but we think the case can be decided without an examination of these in detail. *Page 272
The evidence shows without dispute that John W. Wooley, the father of appellant, entered into an agreement with defendant Naylor in Utah on October 20, 1908, by which Naylor leased from Woolley and Woolley delivered to Naylor 1,450 head of sheep. Said lease was for the term of one year, and provided that the lessee should keep the number and kind of sheep good, and deliver the same, or an equal number of as good sheep of the same kind, quality and condition to Woolley at the end of the said term or at the end of any term during which he might keep them. It is further provided that Naylor should deliver to Woolley for each year that the agreement might be in force eight head of lambs for each 100 head of sheep, and that he should deliver to Woolley each year at shearing time, at the place where he might sell his wool, one and one-half pounds of wool, or the cash therefor, for each head of said sheep, and also one and one-half pounds of wool for each of the eight lambs for each 100 head of sheep when the lambs should become one year old. The contract also forbade Naylor to dispose of any of the sheep or their increase without first obtaining written consent of Woolley. It also provided that the agreement should be canceled and determined at any time if Woolley should be dissatisfied with the manner in which the sheep, their increase or wool, was being handled. It also provided a method by which, at the expiration of the contract, the sheep to which Woolley would be entitled might be separated from the remainder of the flock, but in case there should not be a sufficient number of sheep in the herd to satisfy Woolley's claim, provision was made that the number should be made up by substituting other sheep as good. So far as the record shows, no sheep were added to the number originally received from Woolley, but the rental was each year paid according to contract except for the year 1920. Nothing in the nature of a final settlement was ever had between the parties until the sheep were turned over to Woolley on December 14, 1920. At that time Woolley received from Naylor the following letter: *Page 273
"Bountiful, Utah, Dec. 10th, 1920.
"John W. Woolley:
"Dear Uncle: I am sorry to say my business affairs haven't been as I could wish them to be. The bank is taking over all my property. You had better go to Bancroft, Idaho, and receive your sheep. O.J. Carter has them in charge. I have instructed him to turn them over to you. Take camp, team of horses and set of harness with them.
"I am sorry I haven't enough sheep to pay you in full. Hope to make them good some day.
"They are all young ewes, and much better grade of sheep than what I received from you. They are straight ewes and no lambs with them. Hand this letter to O.J. Carter, Bancroft, Idaho.
"Yours resp.,
"ARTHUR NAYLOR."
To this letter was also attached the following direction to O.J. Carter, who appears to have been in charge of the sheep for Naylor:
"Mr. O.J. Carter,
"Dear Nephew: Turn all sheep we have over to Mr. Woolley, with camp, team of horses and set of harness.
"Yours resp.,
"ARTHUR NAYLOR."
The record shows that respondent began lending money to Naylor in 1908, and that various amounts of money were loaned to him, reaching at one time the sum of $75,000. Naylor appears to have been handling a large number of sheep during this time and to have had about 11,000 head of sheep within two months of the time at which he turned over the sheep in controversy to Woolley. There is no showing that either Woolley or Naylor ever made any representations to the bank with regard to the particular sheep received by Naylor from Woolley; nor is there any showing that the bank had any knowledge whatever of the contract between Naylor and Woolley. The credit extended by the respondent to Naylor is shown to have been given not alone upon sheep, but upon other assets. It is fair to infer, however, from *Page 274
the record that Naylor was doing a reasonably successful business as a sheepman, and that he had corresponding credit with the respondent on that account. The respondent at no time, so far as the record shows, had a lien of any character on the sheep that were being handled by Naylor. Naylor, so far, as respondent was concerned, appeared to be perfectly free to buy and sell as he pleased, and there is no claim that any of the statements made to respondent on which it claims to have relied were false in any particular.
More than two weeks after Naylor had delivered the sheep to Woolley, in settlement, so far as a settlement at that time could be made, of the contract between them, and after title had passed to Woolley, the respondent caused the attachment to be levied upon the sheep in controversy.
Respondent rests its claim to the sheep in controversy upon C. S., sec. 1955, which reads as follows:
"All leases of more than 10 head of livestock must be in writing and must be acknowledged in like manner as grants of real property, and filed of record in the same county recorder's office or offices, and within the same time and manner, and for the same fee, as are chattel mortgages; and the failure to comply with the provisions of this section renders the interest of the lessor in the property subject and subsequent to the claims of creditors of the lessee, and of subsequent purchasers and encumbrancers of the property in good faith and for value."
Respondent relies upon the case of Hare v. Young, 26 Idaho 682,146 P. 104, but it has not brought itself within the holding of this court in that case. There the parties claiming ownership of the sheep had leased them to Young and permitted him to handle them as his own without recording the leases, but the sheep had been mortgaged to Anderson Brothers Bank to secure a loan obtained by Young before the owners set up a claim to possession of the sheep. This mortgage had been assigned to plaintiffs in that case, and it was in the foreclosure action that the claim of ownership was unsuccessfully asserted. *Page 275
It is the contention of respondent in this case that under the facts shown here a general creditor, such as respondent, would have a right to levy upon these sheep in the hands of Woolley. To this proposition we cannot assent. The term "creditor" as used in C. S., sec. 1955, does not refer to a general creditor, but to one who has acquired some sort of lien, by attachment or otherwise, upon the property. This construction was given by this court to language similar to that used in C. S., sec. 1955, in the case of Martin v.Holloway, 16 Idaho 513, 102 P. 3, 25 L.R.A., N.S., 110. Respondent, not being such a creditor as the statute contemplates, could not acquire any valid claim to the sheep that had previously been turned over to Woolley in part settlement of Woolley's claim under the contract between himself and Naylor.
We think there is no doubt that the contract between Naylor and Woolley, as between themselves, was valid and enforceable at law. Naylor was in possession of these sheep and had a legal right to dispose of them as he did by turning them over to Woolley in settlement, or part settlement, of his obligations under the contract between them. When he did so, title vested in Woolley and respondent had no more legal right to complain than it had to complain of the sale or disposition which had taken place with regard to more than 9,000 of Naylor's sheep within the preceding sixty days. The seizure of these sheep under attachment was wholly unwarranted and without right.
The trial court erroneously denied appellant an opportunity to introduce evidence as to the value of the sheep in controversy; consequently, there is no finding on that point to determine the issue raised by the complaint in intervention and the answer thereto. It will be necessary, therefore, if the sheep cannot be delivered to the intervenor, to take further evidence to determine the value of the sheep.
The judgment is reversed and the trial court directed to enter judgment that the intervenor was, at the time of the attachment, the owner of the sheep in controversy and entitled to their possession; that the attachment be discharged *Page 276
and the sheep be returned to the intervenor. If their return is not possible, the trial court is directed to take evidence as to their value and make a finding thereon, and thereupon to enter judgment in behalf of the intervenor and against the respondent for such value, with interest thereon from the date of the attachment, December 30, 1920, and costs. Costs on appeal awarded to appellant.
Budge and Wm. E. Lee, JJ., concur.
McCarthy, C.J., and William A. Lee, J., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3410219/ | This was an action by respondent bank to recover judgment on notes aggregating $20,000 executed by defendant Arthur Naylor, and 1,381 head of sheep were attached as the property of defendant. Thereafter Lorin C. Woolley intervened and claimed title to these sheep. Naylor defaulted and respondent took judgment for the indebtedness represented by the notes. The action between the intervenor and respondent resulted in a judgment for respondent, the court holding that the sheep in question were the property of Naylor when attached, and dismissed the complaint in intervention, from which judgment this appeal is taken.
Appellant claims ownership in the attached animals by reason of an agreement made between defendant Naylor and John W. Woolley at Vernal, Utah, in October, 1908. This agreement, which was in writing but not signed by either party, provided that Woolley was to deliver 1,450 head of sheep to Naylor, by him to be shorn and dipped and in all respects cared for at his expense, except taxes were to be paid by Woolley, and was to run for a year. At the expiration of the year appellant delivered to Naylor an additional 35 head of sheep upon the same terms that Naylor had received the first allotment. This agreement was not acknowledged or recorded in Utah where made or in Idaho where the sheep were subsequently taken and no other writing was ever entered into between the parties. *Page 277
The lower court made complete findings of fact, all of which are supported by the evidence. Among other things, it found that neither John W. Woolley nor his son, Lorin C. Woolley, appellant in this case, ever had any agreement in writing with Naylor other than the one mentioned made at Vernal, Utah, in 1908; that there was never at any time a lease of said sheep in writing executed by either of the parties, but that the Woolleys permitted Naylor to keep the sheep in his possession and control from year to year; that Naylor took the sheep from Utah to Idaho and never thereafter returned to Vernal, Utah, and that there was no increase added to the sheep; that neither of the Woolleys ever paid any further attention to these sheep but permitted Naylor to handle them as if they were his own; that he branded them with his brand and from 1909, the time of his removal to Idaho, until the commencement of this action in 1920, he purchased and raised a large number of sheep, running them upon the public range during the open season and keeping them about his premises at Bancroft, Idaho, during the feeding season.
After Naylor's removal to Idaho there was never any settlement between him and the Woolleys except that he made occasional remittances to them purporting to be on account of wool taken from these sheep; the Woolleys never made any effort to identify their sheep or to place any marks or brands on them or to have any accounting regarding the increase or the wool taken from these sheep; that shortly prior to the commencement of this action Naylor requested his herders to turn over all of his sheep to John W. Woolley, but none of the sheep so turned over were any of the original sheep delivered by the Woolleys in 1908 at Vernal, Utah, or the progeny of such animals, and that the Woolleys were not the owners of the sheep attached in December, 1920, by respondent. It appears that respondent bank during all of this time from 1908 to the commencement of this action in 1920 made frequent and at times large loans to Naylor, amounting sometimes to $75,000; that Naylor obtained this money by representing that he was the owner and in control *Page 278
of all of the sheep in his possession in and about Bancroft, Idaho, and that the same were free and clear from all adverse claims or liens of any kind whatsoever; that respondent relied upon these representations and was thereby induced to make these loans, and at no time had any knowledge or information sufficient to put it upon inquiry that the Woolleys or any other person had any claim upon Naylor's sheep; that Naylor was in debt to respondent bank at the time of the commencement of this action upon the notes sued on in an amount approximating $20,000. As a conclusion from the facts found by the court it held that the Woolleys were not entitled to the possession of the sheep and were estopped from claiming any right or ownership in them.
The controlling question in this case is this: Can appellant, Lorin C. Woolley, who acquired the interests of his father, John W. Woolley, assert ownership in these sheep against respondent by virtue of the agreement made between the Woolleys and defendant Naylor at Vernal, Utah, in 1908 and 1909?
In 1907 the legislature of this state recognized the opportunity for fraud if secret leases were to be recognized and passed what is now C. S., sec. 1955, which is as follows:
"Sec. 1955. Leases to be in writing and recorded. All leases of more than 10 head of livestock must be in writing and must be acknowledged in like manner as grants of real property, and filed of record in the same county recorder's office or offices, and within the same time and manner, and for the same fee, as are chattel mortgages; and the failure to comply with the provisions of this section renders the interest of the lessor in the property subject and subsequent to the claims of creditors of the lessee, and of subsequent purchasers and incumbrancers of the property in good faith and for value."
It will be noted that the legislature has used the words "claims of creditors," not "claims of lien creditors." The language of this statute is so plain, simple and clear that under the well-settled rules of construction, to which there *Page 279
are no exceptions, there is no occasion nor is it permissible to interpolate into this statute, as the majority opinion has done, the word "lien" preceding the word "creditors." (In reSegregation of School District No. 58, 34 Idaho 223, at p. 228,200 P. 138; State v. Jutila, 34 Idaho 595, 202 P. 566.)
In Holmberg v. Jones, 7 Idaho 752, 65 P. 563, this court cited with approval Endlich upon Interpretation of Statutes, which at sec. 8 states the rule: "The court knows nothing of the intention of an act, except the words in which it is expressed, applied to the facts existing at the time."
36 Cyc., p. 1106, states the rule to be:
"The great fundamental rule in construing statutes is to ascertain and give effect to the intention of the legislature. This intention, however, must be the intention as expressed in the statute, and where the meaning of the language used is plain, it must be given effect by the courts, or they would be assuming legislative authority."
In R. C. L., p. 972, it is said:
"And it is an invariable rule that an exception cannot be created by construction where none is necessary to effectuate the legislative intention. The power to create exceptions by construction can never be exercised where the words of the statute are free from ambiguity and its purpose plain. . . . . The courts have no dispensing power over statutes. Where statutes contain no exceptions, and it cannot be said with certainty that exceptions were contemplated by the legislature, the courts can recognize none."
The majority opinion says, "The term 'creditor' as used in C. S., sec. 1955, does not refer to a general creditor but to one who has acquired some sort of lien, by attachment or otherwise, upon the property." The legislature says, "claims of creditors," not "claims of lien creditors." The language of this statute is so plain that it leaves no room for interpretation and its purpose cannot be misunderstood. For this court to interpolate the word "lien" preceding the word "creditors" and thereby make it read "lien creditors" is a plain disregard of the legislative intent. Where *Page 280
a court interpolates into a statute a word or words that changes the obvious meaning of the statute it not only violates all well-settled rules of construction but it is plainly a refusal on the part of the court to obey the legislative mandate, and amending this statute by judicial construction is a plain usurpation of a legislative function.
In the instant case the Woolleys in 1908 and 1909 delivered to Naylor about 1,500 head of sheep at Vernal, Utah. What became of those animals or their increase is a matter of speculation. It is known, of course, that neither the sheep turned over to Naylor nor any of their increase are the same sheep that appellant received from Naylor in 1920.
In paragraph 7 of his petition appellant alleges that Naylor was not at any time the owner of said sheep and was without authority at all times to mortgage, sell or otherwise dispose of them and that at all times up to and including the fourteenth day of December, 1920, appellant was the absolute owner of said sheep together with the increase thereof. In paragraph 10 of his petition he alleges that on December 14, 1920, he personally repossessed these sheep in Bannock county, Idaho, and that he was the absolute owner as against all the world and now is. Therefore there can be no question but that appellant's claim to these sheep is that of absolute ownership, which claim of ownership is based upon the delivery of the sheep to Naylor in 1908 and 1909 at Vernal, Utah, and that this ownership continued from that time until he repossessed them at Bancroft, Idaho, in December, 1920, and the majority opinion upholds this claim. There is no question before this court of Naylor being indebted to the Woolleys by virtue of this agreement made at Vernal, Utah, or of appellant taking the sheep in question in payment of any such indebtedness.
The holding in the majority opinion that a claim of ownership based upon a secret lien made in another state, not in accordance with the laws of that state and in direct violation of the law of this state, will be sustained, invites the perpetration of the most flagrant frauds and will tend to destroy all basis for the extension of credits to those engaged *Page 281
in the livestock business in this state; it nullifies the leasing statute and restores the opportunity for dishonesty that this act was intended to prevent.
The majority opinion says, "Respondent, not being such a creditor as the statute contemplates, could not acquire any valid claim to the sheep that had previously been turned over to Woolley in part settlement of Woolley's claim under the contract between himself and Naylor." As clearly appears from appellant's pleading which we have referred to, he did not take these sheep because he was a creditor or had any claim against Naylor as a creditor, but, on the contrary, took them under a claim that the title to these sheep in the possession of Naylor during all these years was in the Woolleys.
The majority opinion says, "This construction [that the word 'creditors' as used in the statute means 'lien' creditors] was given by this court to language similar to that used in C. S., sec. 1955, in the case of Martin v. Holloway, 16 Idaho 513,102 P. 3, 25 L.R.A., N.S., 110." In that case a chattel mortgage on a stock of merchandise contained in a building on Main Street, in Boise, stipulated that the mortgagor might remain in possession, sell the stock and apply the proceeds on the mortgage indebtedness. Subsequently lay agreement of the parties the mortgagee took possession before the mortgage had become due, and the court held that the taking of possession cured the objectionable stipulation in the mortgage as against subsequent attaching creditors. In the instant case the debtor Naylor, after his removal to Bancroft, Idaho, in 1909, exercised all the rights of ownership over his flocks of sheep until December, 1920. He branded them with his brand, sold them and bought and raised others to take their place, they were assessed to him upon the public tax-rolls and he paid the taxes, marketed the wool shorn from them, and during all of this time had them in his sole and exclusive possession. Under these circumstances I cannot perceive how the rule announced in the Holloway case can be extended to support the majority opinion which holds that notwithstanding these facts the Woolleys were during all of this time vested with *Page 282
the title to an equal number of Naylor's sheep which they could assert at any time against his creditors.
The finding and holding of the lower court that appellant should be estopped from asserting title to these sheep is based upon the soundest principles of law and justice.
The. Woolleys during all of this time neglected to have their agreement with Naylor renewed and recorded as the law requires (Hare v. Young, 26 Idaho 682, 146 P. 104), and their failure and neglect to comply with the law in the matter of having their lease properly executed and recorded was such a flagrant violation of the law that they should be estopped from asserting title to these sheep.
I am authorized to say that Mr. Chief Justice McCarthy concurs with me in dissenting from the views expressed in the majority opinion.
Petition for rehearing denied. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1770702/ | 625 S.W.2d 731 (1981)
Ex parte Anthony Mark PREJEAN.
No. 68540.
Court of Criminal Appeals of Texas, En Banc.
December 23, 1981.
*732 R. M. DeGuerin, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., Larry P. Urquhart, and Ray Elvin Speece, Asst. Dist. Attys., Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
TEAGUE, Judge.
This is an original application requesting this Court to issue both a writ of habeas corpus and a writ of mandamus. See Art. 5, Sec. 5 of the Texas Constitution. Applicant seeks the following: (1) an order from this Court requiring the trial court to allow petitioner to be represented by retained counsel of his choice, (2) an order from this Court ordering the trial court to conduct an examining trial, and (3) an order from this Court setting bail.[1]
The record reveals that the applicant was arrested on June 8, 1981, pursuant to a five paragraph felony complaint alleging the offenses of capital murder, murder, and aggravated robbery.[2] Bail is not set on any of these charges. As a result of applicant's affidavit of indigency, Hon. James Stafford was appointed by the trial court to represent applicant. Applicant's family, with applicant's consent, thereafter retained another attorney, Hon. Mike DeGeurin,[3] to represent applicant on these charges. The primary issue before this Court is whether the applicant has the right to have Mike represent him.
Other than the State's voicing a general objection to Mike's representing the applicant, the record is not exactly clear as to what triggered the trial court's inquiry into Mike's representing the applicant. Nevertheless, after a hearing held below, the trial court ruled that Mike was disqualified from representing the applicant. However, we discern from the record that the real concern of the trial court, and what initiated the inquiry to Mike's representing applicant lies in the following: Dick formerly represented the applicant's brother, Carlos Stafford[4] and that representation involved Carlos being charged with the same identical criminal offense now pending against the applicant. Dick was successful in his representation of Carlos, as the criminal accusation against Carlos was dismissed. Thereafter, the same criminal accusation was filed against the applicant. The record does not reveal whether there was ever any contact between Dick and the applicant. The record does show, however, that the applicant's family retained Mike. The record also reflects that Dick, Mike and Percy Foreman have had at all times herein a law firm entitled Foreman, DeGuerin and DeGeurin. The exact nature of the law firm, as to the relationship of its members, is not shown by the record. However, the record does reveal that only Mike and Foreman have counseled with the applicant. Whether Foreman had any contact with Carlos is not shown by this record, but the record does show that Dick and "the law firm" were employed to represent Carlos. Neither Dick, Carlos, nor Foreman testified at the hearing held below.
*733 The record also reflects that during the hearing held below the applicant filed a written waiver of potential conflict of interest,[5] testified that he had discussed with Mike potential conflicts of interest they might have, and desired to waive his right to conflict-free counsel. Even after the trial court ruled on the State's objection to Mike's representing the applicant, the applicant testified that it was his wish for Mike to continue to represent him.
We conclude, after a careful review of this record and the law on the subject, that the trial court's ruling cannot be sustained.
We first observe that the right of an accused in a criminal proceeding to the assistance of counsel is guaranteed by the Federal and State Constitutions, as well as by State statute. (U.S.Const., 6th Amend.; Tex.Const., Art. I, Sec. 10; Art. 1.05, V.A.C. C.P.). This, of course, includes freedom of choice in the selection of counsel by the accused.[6]
The principle of law that a criminal defendant is entitled to the assistance of counsel free from any conflict of interest, which conceivably could impair counsel's effectiveness, is also clearly and firmly established in our law. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 2d 680 (1942); Gonzales v. State, 605 S.W.2d 278 (Tex.Cr. App.1980).
After carefully reviewing the record in this cause, we find there is no need to discuss the merits of whether the applicant and Mike had a conflict of interest sufficient to render Mike disqualified from representing the applicant, for the right to conflict-free counsel may be waived, if done so knowingly and voluntarily. United States v. Garcia, 517 F.2d 272 (5th Cir. 1975); Zuck v. Alabama, 588 F.2d 436 (5th Cir. 1979), cert. denied, 444 U.S. 833, 100 S. Ct. 63, 62 L. Ed. 2d 42 (1979). Such a waiver of the right to conflict-free counsel should include a showing that the defendant is aware of the conflict of interest, realizes the consequences of continuing with such counsel, and is aware of his right to obtain other counsel. Gray v. Estelle, 616 F.2d 1305 (5th Cir. 1980); Zuck v. Alabama, supra. Applicant here affirmatively complied with the first two of these requirements, and the third is adequately reflected by the fact that another attorney has already been appointed for him, and that attorney has been active throughout the proceedings below and in this appeal, in cooperation with retained counsel. Applicant is thus shown to be aware of his right to have other counsel, and has affirmatively waived his right to conflict-free counsel.
Thus, the record does not affirmatively reflect a justifiable legal reason for the trial court to disqualify Mike from representing the applicant. Compare, United States v. Garcia, supra. The record does, however, affirmatively reflect that at this time the applicant has waived his right to conflict-free assistance of counsel.
Finding that the trial court erred in disqualifying Mike from representing the applicant, that part of the trial court's order will be set aside. Hon. Mike DeGeurin is entitled to represent applicant, and we so hold.
As to the issue of holding an examining trial, we observe that the trial judge made the following statement during the hearing below: "The Court, in accommodating the *734 problem, will instruct the prosecution not to present this matter to the grand jury until well, we'll postpone it for a period of 30 days so that the Court can conduct an examining trial, perhaps following any mandate that the Court of Criminal Appeals may direct to this Court." For this reason, we decline to address applicant's second contention.
Although this Court has jurisdiction over applicant's application for writ of habeas corpus to set bail, see Ex parte Spaudling, 612 S.W.2d 509 (Tex.Cr.App.1981), because of the meager record before us on that issue we are unable to properly resolve the question whether the applicant is entitled to bail. The original application for writ of habeas corpus to set bail is therefore denied.
Finding as a matter of law that the applicant is entitled to be represented by Hon. Mike DeGeurin we conclude that the issuance of a writ of mandamus is the proper remedy to vacate the order of the trial court prohibiting Hon. Mike DeGeurin from representing the applicant. See State ex rel Vance v. Routt, 571 S.W.2d 903 (Tex.Cr. App.1978); State ex rel Vance v. Clawson, 465 S.W.2d 164 (Tex.Cr.App.1971).
We assume, however, that the trial court will immediately vacate his order prohibiting Hon. Mike DeGeurin from representing the applicant. Writ of mandamus will issue only if he refuses to do so.
It is so ordered.
APPENDIX "A"
NO. 336,037
THE STATE OF TEXAS )( IN THE DISTRICT COURT OF
vs. : HARRIS COUNTY, TEXAS
ANTHONY MARK PREJEAN )( 177th JUDICIAL DISTRICT
WAIVER OF POTENTIAL CONFLICT OF INTEREST
THE STATE OF TEXAS )(
COUNTY OF HARRIS )(
BEFORE ME, the undersigned authority, a Notary Public in and for Harris County, Texas, on this day personally appeared ANTHONY MARK PREJEAN, who after having been by me first duly sworn, upon his oath deposes and says:
My name is ANTHONY MARK PREJEAN. I am the Defendant in the above styled and numbered cause. My attorney of choice is Mike DeGeurin of the law firm of Foreman, DeGuerin & DeGeurin. I am aware of the fact that Dick DeGuerin, the brother of Mike DeGeurin, and also the law firm of Foreman, DeGuerin & DeGeurin, has previously represented CARLOS STAFFORD in Cause No. 298,431 wherein Carlos Stafford was charged with the same offense that I now stand charged with. I know that Mr. Stafford was cleared of this charge while Mr. DeGuerin represented him. I further know that one of the reasons that Mr. Stafford was cleared and his case dismissed was that the police and the district attorney's office came to the conclusion on evidence that they obtained that Carlos Stafford was misidentified by the several State's witnesses and that I, was probably the person that Carlos Stafford was identified as being.
I know that Mike DeGeurin and his brother, Dick DeGuerin, are still members of the firm Foreman, DeGuerin & DeGeurin.
(s) Anthony M. Prejean
ANTHONY MARK PREJEAN
*735 Mr. Mike DeGeurin and Mr. Percy Foreman have discussed these facts with me and I still desire that Mr. Mike DeGeurin of the law firm of Foreman, DeGeurin & DeGeurin represent me in this cause.
(s) Anthony M. Prejean
ANTHONY MARK PREJEAN
SUBSCRIBED and SWORN to before me on this the 24th day of June, 1981.
(s) Cindy Bernd
CINDY BERND, Clerk
177th Judicial District
Court of Harris County,
TEXAS
NOTES
[1] On June 22, 1981, on behalf of the applicant, Hon. Mike DeGeurin filed a motion for an examining trial and on July 21, 1981, submitted to the trial court an application for writ of habeas corpus to set bail. Both instruments have been denied by the trial court.
[2] Two of the stated offenses are repeated in the complaint, i.e., two of the paragraphs merely repeat different ways to commit the same offense. Each paragraph alleges the same victim.
[3] Mike DeGeurin spells his last name DeGeurin. His brother, Dick, spells his last name DeGuerin. Due to this, at times hereinafter, we respectfully refer to each only by his respective first name.
[4] At times hereinafter, for the sake of simplicity, we respectfully address applicant's brother by his first name.
[5] A copy of the applicant's written "Waiver of Potential Conflict of Interest" is attached to this opinion as Appendix "A."
[6] This, however, is not to say that a single attorney may represent any defendant. See, for example, Gray v. Estelle, 574 F.2d 209 (5th Cir. 1978); Gray v. Estelle, 616 F.2d 801 (5th Cir. 1980), where the Fifth Circuit seriously questioned whether a defendant who was represented by an attorney who was at the same time the complaining witness against the defendant in an unrelated case, could ever make a voluntary waiver of his constitutional right to conflict-free counsel. 616 F.2d 801, 804 fn. 2. Other than in such peculiar factual situations as set out in Gray, id., it would appear that in both this Court and the Fifth Circuit the rule is the same: a criminal defendant has the right to insist upon retaining an attorney with otherwise disqualifying conflicts. United States v. Mahar, 550 F.2d 1005 (5th Cir. 1977); Pete v. State, 533 S.W.2d 808, 810 (Tex.Cr.App.1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/878082/ | 668 P.2d 1060 (1983)
Dalton E. WELLMAN and Anna Wellman, husband and wife, Plaintiffs and Appellants,
v.
Edgar G. WELLMAN and Josie Wellman, husband and wife, Defendants and Respondents.
No. 83-118.
Supreme Court of Montana.
Submitted on Briefs June 30, 1983.
Decided September 8, 1983.
E. Eugene Atherton, Kalispell, for plaintiffs and appellants.
Warden, Christiansen, Johnson & Berg, Gary R. Christiansen, Kalispell, for defendants and respondents.
GULBRANDSON, Justice.
Plaintiffs, the son and daughter-in-law of defendant, Edgar G. Wellman (deceased) *1061 appeal from a judgment issued by the District Court of the Eleventh Judicial District, Flathead County, dismissing their action for an accounting of certain properties owned by both parties.
In Wellman v. Wellman (1982), Mont., 643 P.2d 573, 39 St.Rep. 752, we decided a similar action brought by the same plaintiffs against the same defendants. In the prior case, we decided that the plaintiffs' action was barred by res judicata from a 1971 default judgment. Likewise, the District Court in the case at bar decided res judicata barred the plaintiffs' present action. The District Court also held that the plaintiffs' action was barred by the statute of limitations.
In 1971, Edgar Wellman brought an action against his son and daughter-in-law to determine ownership of property held by two family corporations. Specifically, rights of ownership were determined to properties the parties refer to as (1) the Madhus property; (2) Isaac Walton Hotel; (3) Bearcreek Ranch; (4) air-strip property; and (5) Wellman Enterprises, Inc. property. A default judgment was entered against the son and daughter-in-law and a constructive trust was imposed upon the proceeds from the property until plaintiffs received the amounts due to them. The son and daughter-in-law brought a Rule 60(b)(1) motion to set aside the default judgment, which was denied by the court.
The present action actually was commenced in Marion County, Oregon, on July 12, 1977. In that complaint the son and daughter-in-law sought an accounting of property interests that had been determined in the 1971 action in addition to several other alleged ownership rights. On March 2, 1981, it was dismissed from the Oregon court by agreement of the parties with the stipulation that the son and daughter-in-law could bring the proceeding to Montana within 90 days (by June 13, 1981). The complaint was refiled in Montana on July 2, 1981. Defendants filed a motion to dismiss arguing the action was barred by res judicata.
Meanwhile, this Court was deciding a similar case between the same parties. Wellman v. Wellman, supra. In that action, the plaintiffs had attempted to attack the 1971 default judgment, claiming the District Court had exceeded its jurisdiction by granting more relief than was sought in the pleadings. We affirmed the District Court determination that res judicata barred the plaintiffs' action.
The case at bar was held in abeyance by the District Court pending our decision in the previous action between the parties. Upon the issuance of our decision in that action, defendants renewed their motion to dismiss. The District Court granted the motion stating that the plaintiffs' action was barred for four reasons: (1) the action was not filed within the time stipulated by the parties in dismissing the Oregon action; (2) the 1971 decision is res judicata to all matters claimed by the plaintiffs; (3) the time allowed for bringing the action under the statute of limitations has expired; and, (4) the doctrine of laches.
As a general proposition, we have held:
"The doctrine of res judicata states that a final judgment on the merits by a court of competent jurisdiction is conclusive as to causes of action or issues thereby, as to the parties and their privies, in all other actions in the same or any other judicial tribunal or concurrent jurisdiction." Meagher Co. Water Dist. v. Walter (1976), 169 Mont. 358, 361, 547 P.2d 850, 852.
The doctrine bars consideration of an action if four elements are present: (1) the subject matter of the action must be the same; (2) the parties or their privies must be the same; (3) the issues must be the same and relate to the same subject matter; and (4) the capacities of the persons must be the same in reference to the subject matter and to the issues between them. Brannon v. Lewis and Clark County (1963), 143 Mont. 200, 207, 387 P.2d 706, 711. Appellants argue that the issues and subject matter of this action are different from the 1971 action *1062 because they are claiming rights to property not considered in the 1971 action. Specifically, counsel for appellants asserts in his brief that this action concerns an accounting of proceeds from the disputed properties that the respondents acquired after 1977 and, thus, the doctrine of res judicata is inapplicable.
We hold that the doctrine of res judicata applies and appellants are barred from asserting their claim. This action is clearly an attempt to relitigate issues that were originally considered in the 1971 action. Although appellants argue that the case before us involves an accounting action for events occurring subsequent to July 12, 1977, their complaint does not support that assertion. Indeed, such a cause of action could not have arisen in 1977 since the 1971 judgment had yet to be satisfied.
Moreover, the fact that appellants appear to name property not considered in the 1971 action does not preclude application of the doctrine of res judicata. The most important element in sustaining a plea of res judicata is identity of issues. Harris v. Harris (1980), Mont., 616 P.2d 1099, 37 St. Rep. 1696. The 1971 action was for an accounting of properties in dispute between the two parties. Appellants had a full opportunity to litigate any claims they had at that time. Importantly, the doctrine of res judicata is founded upon the widely-recognized public policy that there must be some end to litigation. Wellman v. Wellman, supra. Also, it should be noted that appellants did not specifically indicate the dispute involved different property until the issue of res judicata was asserted by respondents.
In addition, we hold that the statute of limitations bars appellants' cause of action. The statute of limitations applies to suits in equity and actions at law. Mantle v. Speculation Min. Co. (1903), 27 Mont. 473, 71 P. 665. Montana's statute in this regard is section 27-2-215, MCA, which provides: "An action for relief not otherwise provided for must be commenced within five years after the cause of action accrues."
A cause of action "accrues" when the right to sue has become vested and appellant can show that another has wrongfully infringed upon his liberty or property. Bergin v. Temple (1941), 111 Mont. 539, 111 P.2d 286.
Appellants state in their brief that they first became aware of business disputes with respondents upon their remarriage in 1970. The complaint was filed in Oregon seven years later. Moreover, in 1971, appellants did not resist the action brought by respondents for an accounting of the property in dispute. Clearly, the five year period began to run in either 1970 or 1971 and appellants are barred from bringing this action. Appellants' argument that they did not become aware of their cause of action until October 1978 or 1979 is without merit since they filed their action in 1977.
In addition to the doctrine of res judicata and running of the statute of limitations, appellants' action is barred by the equitable doctrine of laches. The doctrine of laches was set forth at some length in Riley v. Blacker (1915), 51 Mont. 364, 370, 371, 152 P. 758, 759, applied in Hynes v. Silver Prince Mining Co. (1929), 86 Mont. 10, 281 P. 548 and Montgomery v. Bank of Dillon (1943), 114 Mont. 395, 136 P.2d 760; and cited in Davis v. Steingruber (1957), 131 Mont. 468, 311 P.2d 784 and Johnson v. Johnson (1977), 172 Mont. 150, 561 P.2d 917:
"Laches, considered as a bar independent of the statute of limitations, is a concept of equity; it means negligence in the assertion of a right; it is the practical application of the maxim, `Equity aids only the vigilant'; and it exists when there has been an unexplained delay of such duration or character as to render the enforcement of the asserted right inequitable ... `Considerations of public policy and the difficulty of doing justice between the parties are sufficient to warrant a court of equity in refusing to institute an investigation where the lapse of time in the assertion of the claim is such as to show inexcusable neglect on the part of the plaintiff, no matter how apparently just his claim may be; and this is particularly so where the relations of the parties have been materially altered *1063 in the meantime.' [Citing cases.] What constitutes a material change of condition has been the subject of much judicial discussion and some judicial dissension; but whatever doubt there may be as to other circumstances, it never has been questioned, to our knowledge, that the death of one of the parties to the transaction is such a change."
For the above stated reasons, we affirm the judgment of the District Court.
HASWELL, C.J., and HARRISON, SHEEHY and MORRISON, JJ., concur. | 01-03-2023 | 06-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3410357/ | Respondent brought this action against appellant to enforce payment of a promissory note, payable on demand, executed by appellant to respondent January 11, 1921, in the sum of $818.19. Appellant admitted the execution of the note and pleaded that he fully paid the obligation by a transfer of seventy-five shares of the corporate stock of the Crystalline Lime Company. The case was tried by the court without a jury, and findings of fact were made upon every material issue presented by the pleadings, against appellant's plea of payment and conclusions were made and judgment was entered thereon in favor of respondent from which judgment this appeal is taken upon nine assignments of error. All of the assignments are predicated upon the contention that the evidence does not support the findings, and will be considered together.
Findings of a court on questions of fact have the force and effect of the verdict of a jury, and where there is a *Page 120
substantial conflict in the testimony, such findings will not be set aside. (First Nat. Bank v. Cruickshank, 38 Idaho 789,225 P. 142; Jain v. Priest, 30 Idaho 273, 164 P. 364; Wolf v.Eagleson, 29 Idaho 177, 157 P. 1122; Heckman v. Espey, 12 Idaho 755,88 P. 80.)
The evidence is conflicting, but there is very substantial evidence to support the findings of the trial court. Upon the entire record we conclude that the evidence preponderates in favor of respondent, and we are bound by the well-settled rule that findings of fact made by a trial judge, based principally upon the testimony of witnesses who have testified before such judge, where he has had the benefit of observing their demeanor upon the stand and of listening to their testimony, will not be disturbed because of a conflict where there is substantial evidence to support such findings.
After appellant delivered the seventy-five shares of stock to respondent, as he claims, in full payment of the note in question, knowing that it was then held by the First National Bank of Lewiston, as collateral to secure an indebtedness of respondent, in a conversation with the cashier of the bank holding this collateral, appellant stated that he did not intend to repudiate payment of the note. He knew at this time that the bank was the legal holder of the note. In fact it appears that the bank still holds its interest in this note as collateral having returned it to respondent, the original payee, for the purpose of bringing this action to enforce payment. In addition to this there is very substantial evidence to support respondent's contention that appellant obtained the money from respondent for which this note was originally given, under an agreement to repay it in money as its terms require, and the further consideration that as an inducement for such advancement he would give respondent stock in the enterprise which appellant was then attempting to promote, after such corporation was organized and had become a going concern.
There being no error in the record, the judgment of the court below is affirmed, with costs to respondent.
Wm. E. Lee, and Budge, Givens and Taylor, JJ., concur. *Page 121 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4001393/ | This is a damage case growing out of a collision between the automobiles of the respective parties at a highway intersection in Yakima county.
The action was commenced in the superior court for that county by the plaintiffs, Brum and wife, seeking recovery for personal injuries suffered by both of them, and for injuries to their automobile, alleged as the result of the defendant, Hammermeister, negligently driving his automobile while immediately approaching and within the intersection in question. The *Page 660
defendant denied negligence on his part, and alleged negligence on the part of the plaintiffs as the cause of the accident, resulting also in damage to the defendant's automobile, for which, by cross-complaint, he sought recovery against the plaintiffs. Trial in the superior court, sitting with a jury, resulted in verdict and judgment awarding to the plaintiffs recovery against the defendant, from which he has appealed to this court.
The only question regarded by us as of serious moment in our present inquiry is as to whether or not the evidence supports the verdict and judgment. We think the jury were warranted in believing the controlling facts to be, in substance, as follows:
Tieton drive is an arterial highway of Yakima county, running east and west, having a paved roadway sixteen feet wide. It is intersected by Glen drive, running north and south, having a graveled roadway, which is not an arterial highway. At the east edge of Glen drive, thirty-three feet south of the pavement of Tieton drive, there is a sign warning drivers proceeding north that they are approaching an arterial highway, and commanding them to stop. Looking west from that sign along Tieton drive, the view is wholly unobstructed for a distance of more than a quarter of a mile.
In the afternoon of the day of the accident, the plaintiffs were riding north on Glen drive in their automobile, Mr. Brum driving, approaching Tieton drive. They stopped, in obedience to the stop sign, thirty-three feet south of the pavement of Tieton drive. Mr. Brum changed into low gear, and started to cross the intersection.
As he did so, or, in any event, when he had proceeded but a few feet, he observed, at a distance of from one-eighth to one-quarter of a mile, the defendant's *Page 661
car approaching the intersection from the west on the pavement of Tieton drive. Mr. Brum then noticed that the defendant's car was apparently proceeding at a considerable speed, but not apparently exceeding the lawful speed limit. Mr. Brum, then being of the opinion that he had ample time to cross the intersection before the defendant's car would reach it, and without further observing the defendant's car, proceeded in low gear at a speed of from five to ten miles per hour, probably accelerating to the latter while crossing the pavement.
When the front wheels of the plaintiffs' car had passed over the north edge of the pavement, its rear wheels being still on the pavement, the two cars came into violent collision, the rear right corner of the defendant's car coming into contact with the front left corner of the plaintiffs' car. The plaintiffs' car was thrown over on its side, coming to rest but a few feet from the place of the collision. The defendant's car, in a manner somewhat difficult to explain, passed the plaintiffs' car and proceeded on east, coming to rest facing back towards the west on the pavement of Tieton drive about one hundred feet east of the place of the collision, evidently having been whirled around. The contact of the two cars occurred at a point off the north edge of the pavement.
While the plaintiffs' car was very much damaged, its right front corner and fender did not show any sign of the contact of the cars. Evidently, the defendant, failing to timely notice the impending danger, in view of the speed of his car, suddenly turned his car to the left to the extent of bringing its right rear corner around in contact with the front left corner of the plaintiffs' car.
While the plaintiffs' car had not exceeding forty-nine *Page 662
feet to go to cross the pavement when Mr. Brum first observed the defendant's car, the defendant's car had one-eighth to one-quarter of a mile to go to reach the path of the plaintiffs' car.
The accident resulted in personal injuries to both Mr. and Mrs. Brum, and also in injuries to their car.
[1] Counsel for the defendant invoke the statutory rule prescribed by Rem. 1927 Sup., § 6362-40, reading as follows:
"The operator of any motor vehicle entering upon an arterial main traveled highway, from a public or private highway, road, street, way or driveway, shall yield the right of way to vehicles on such arterial highway and shall come to a full stop thereat when and where signs, posts or other markers so direct or indicate."
It is argued, in substance, that this rule places upon the driver entering upon an arterial highway the whole burden of care to avoid accidents at such places; in other words, that the right of way of the driver along an arterial highway at such places is absolute. This, we think, is an erroneous view of that rule. While, of course, the primary burden of avoiding accidents at such places rests upon the driver entering upon the arterial highway, there is also some burden of care resting upon the driver driving along an arterial highway. It seems to us that the following observation made in our decision in Martin v.Hadenfeldt, 157 Wash. 563, 289 P. 533, is as applicable here as it was in that case:
"(1) All rights of way are relative, and the duty to avoid accidents or collisions at street intersections rests upon both drivers.
"(2) The primary duty of avoiding such accidents rests upon the driver on the left, which duty he must perform with reasonable regard to the maintenance of a fair margin of safety at all times." *Page 663
This observation was made relative to the right of way rule prescribed by Rem. 1927 Sup., § 6362-41, subd. 14, reading as follows:
"Drivers, when approaching public highway intersections, shall look out for and give right of way to vehicles on their right, simultaneously approaching a given point within the intersection, and whether such vehicles first enter and reach the intersection or not: Provided, this paragraph shall not apply to drivers on arterial highways."
The only additional duty put upon the unfavored driver by the statutory rule here applicable is that he shall stop upon coming to the arterial highway. Clearly, we think, that does not render the general relative right of way rule less applicable here. Our decisions in Denny v. Seattle, Renton S.R. Co., 60 Wash. 426,111 P. 450; Johannessen v. Washington Water Power Co.,104 Wash. 182, 176 P. 8; Johnson v. Seattle, 113 Wash. 487,194 P. 417; Nabours v. Seattle, 113 Wash. 557, 194 P. 800;Lung v. Washington Water Power Co., 144 Wash. 676,258 P. 832; McClanahan v. Fisher, 158 Wash. 114, 290 P. 864;Fredericks v. Seattle, 159 Wash. 224, 292 P. 427; andCrozier v. Seattle, 166 Wash. 107, 6 P.2d 406, are in harmony with and lend support to this conclusion.
In view of the distance at which the defendant's car was away from the intersection when the plaintiffs' car was about to enter the intersection, in view of the unobstructed view which the defendant had of the plaintiffs' car entering upon and crossing the intersection, and in view of the excessive speed of the defendant's car upon its immediate approach to and within the intersection, as the evidence warranted the jury in viewing the situation, we are of the opinion that the question of the defendant's negligence and the *Page 664
question of the plaintiffs' contributory negligence were both for the jury to decide as a matter of fact, and not for the court to decide as a matter of law.
Some contentions are made that the court erred to the prejudice of the defendant in giving certain instructions upon the law of right of way at intersections of arterial with non-arterial highways. We think these contentions are without substantial support. The instructions are in harmony with the law as above noticed.
It is further contended that the award of damages against the defendant is excessive. We think it is sufficient to say that our reading of the evidence convinces us that the verdict and judgment should not be disturbed by us upon this ground.
The judgment is affirmed.
TOLMAN, C.J., MITCHELL, STEINERT, and HERMAN, JJ., concur. *Page 665 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4523857/ | Present: Goodwyn, Mims, Powell, Kelsey, McCullough, and Chafin, JJ., and Russell, S.J.
CLINARD GARY LAMBERT
OPINION BY
v. Record No. 190439 SENIOR JUSTICE CHARLES S. RUSSELL
APRIL 9, 2020
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal arises from convictions for aggravated involuntary manslaughter in violation
of Code § 18.2-36.1 and driving while intoxicated in violation of Code § 18.2-266. It presents
questions whether the Commonwealth presented evidence sufficient to support jury verdicts
finding that the defendant had self-administered intoxicants that impaired his ability to drive
safely. For the reasons explained below, we conclude that the evidence before the jury, and the
inferences reasonably deducible therefrom, was sufficient to support a finding beyond a
reasonable doubt that Lambert had, prior to the accident, self-administered drugs that impaired
his ability to drive safely. Accordingly, we will affirm the judgment of the Court of Appeals.
FACTS AND PROCEEDINGS
In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial. On March 1, 2015,
Donna Turner was driving her Chevrolet Cavalier eastbound, crossing “Big A” Mountain in
Russell County. She was accompanied, in the front passenger seat, by Forrest Ramey. At the
same time, the defendant, Clinard Gary Lambert, was driving a pickup truck westbound,
approaching her on the same road. The defendant crossed the centerline, entered the eastbound
lane and continued until he collided with the guardrail to his left. He scraped along the guardrail
for about forty feet before coming to a stop.
Donna Turner, coming around a curve, saw the truck ahead, swerved to her left to avoid
it, but was unable to avert a collision. She suffered injuries but the main force of the impact was
to the passenger side of her car. Forrest Ramey, her passenger, later died as a result of the blunt
force injuries he sustained.
Several witnesses soon appeared at the scene. Claude Musick was driving eastbound
ahead of the Turner Chevrolet. He heard the crash behind him. In his rear-view mirror, he saw
Lambert’s truck against the guardrail, headed in the wrong direction. He turned around, returned
to the scene and called 911.
Next, an eastbound car driven by Tammy Brown, with Andrew Duncan as her passenger,
arrived at the scene. They had been too far behind to see the accident but stopped to give
assistance. Duncan assisted Lambert in climbing out of his truck on its passenger side. Donna
Turner remained in her car, trying unsuccessfully to revive Ramey. Lambert stood beside the
truck and appeared to be “dazed” and “wobbly on his feet.” His face was bleeding profusely.
He was not seen to eat, drink, or take any medication.
Greta Morrison, an Emergency Medical Technician and a nursing supervisor at the
Russell County Medical Center, responded to the scene. Treating Lambert for his facial injuries,
she noted that his speech was slurred but that he was oriented and could answer questions. She
suspected that “there was more to” the slurred speech than just this apparent facial trauma.
When she asked him whether he had taken any drugs or alcohol, he denied that he had. She
suggested to a police officer who had arrived at the scene that a blood sample should be taken
from Lambert. No medications were given to Lambert at the scene or during his subsequent
transportation to the hospital by emergency personnel.
Two Virginia State Troopers responded to the scene. Lambert told Trooper Osborne that
he had been driving his truck but did not know what had happened. He appeared sleepy and was
leaning on the guardrail for support but denied consuming any drugs or alcohol. Upon being
2
asked a second time, however, Lambert admitted that he had just come back from the local
methadone treatment center where he received a “treatment of methadone.”
Lambert was transported to the Holston Valley Hospital in Kingsport, Tennessee. The
police obtained a search warrant for a sample of his blood for analysis. The resulting certificate
of analysis confirmed the presence of methadone and drugs commonly known as Valium and
Xanax in Lambert’s blood.
Lambert was indicted in the Circuit Court of Russell County for aggravated involuntary
manslaughter and driving while intoxicated. The case proceeded to a jury trial. The
Commonwealth presented evidence to support the facts outlined above. In addition, Dr. James
Kuhlman, Jr., a forensic toxicologist, testified that the levels of methadone and Xanax in
Lambert’s blood were “significant,” had depressant effects that could be “additive” and “very
dangerous” in combination, causing drowsiness, dizziness, lethargy, slowed hand-eye
coordination, slurred speech and altered balance. He concluded that the drug levels in Lambert’s
blood were sufficient to have impaired his ability to drive safely.
At the close of the Commonwealth’s evidence, Lambert moved to strike it on the ground,
among others, that the Commonwealth had failed to prove beyond a reasonable doubt that the
drugs in Lambert’s blood were self-administered. The trial court denied the motion then and
again when it was renewed at the conclusion of the trial. The jury found Lambert guilty on both
charges and sentenced him to seven years’ incarceration on the charge of aggravated involuntary
manslaughter and a fine of $1,500 on the charge of driving while intoxicated. The court entered
final judgment in accordance with the jury verdicts.
Lambert appealed his convictions to the Court of Appeals, which granted and considered
his assignments of error. In a published opinion, Lambert v. Commonwealth, 70 Va. App. 54
(2019), the Court of Appeals affirmed his convictions. We awarded Lambert an appeal limited
3
to three assignments of error relating solely to the question whether the drugs found in Lambert’s
blood had been self-administered.
ANALYSIS
The statutes under which Lambert was charged provide, in pertinent part, as follows:
It shall be unlawful for any person to drive or operate any motor vehicle . . . (iii)
while such person is under the influence of any narcotic drug or any other self-
administered intoxicant or drug of whatsoever nature, or any combination of such drugs,
to a degree which impairs his ability to drive or operate any motor vehicle . . . safely.
Code § 18.2-266.
Any person who, as a result of driving under the influence in violation of clause
(ii), (iii), or (iv) of § 18.2-266 . . . unintentionally causes the death of another person,
shall be guilty of involuntary manslaughter.
Code § 18.2-36.1(A).
Lambert contended in the Court of Appeals that our decision in Jackson v.
Commonwealth, 274 Va. 630 (2007), precludes a finding that the drugs found in his blood were
“self-administered.” The Court of Appeals determined that Jackson was inapposite, and we
agree. Jackson was a case devoted entirely to statutory construction. There, we construed Code
§ 18.3-266 to require the Commonwealth to prove self-administration as an element of the crime,
regardless of the intoxicating substance involved. Jackson, 274 Va. at 634. There, the
Commonwealth contended that the phrase “any narcotic drug” in Code § 18.2-266 made proof of
self-administration unnecessary. Id. at 633-34. We disagreed and reversed the conviction. Id. at
634-35. The present case, by contrast, presents only a question of the sufficiency of the evidence
to prove self-administration.
On appeal, an appellate court is required to consider the evidence and all inferences fairly
deducible from it in the light most favorable to the Commonwealth, the prevailing party at trial.
Perry v. Commonwealth, 280 Va. 572, 578 (2010). The relevant issue on appeal is, “upon
4
review of the evidence in the light most favorable to the prosecution, whether any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.” Pijor v.
Commonwealth, 294 Va. 502, 512 (2017) (internal quotation marks omitted).
The evidence concerning the presence of intoxicants in Lambert’s blood, sufficient to
impair his ability to drive safely, was undisputed. When separately asked by Nurse Morrison
and Trooper Osborne whether he had taken any drugs or alcohol, he initially denied that he had
done so. Later, he admitted to the trooper that he had just received methadone at a methadone
treatment clinic. The trial court held, and the Court of Appeals agreed, that the methadone
treatment clinic was a part of a voluntary program and that Lambert had agreed to ingest
methadone by his voluntary participation in the program. There was no evidence as to how the
other drugs had found their way into Lambert’s blood, but the jury was entitled to draw the
inference that he had initially lied about consuming any drugs out of his consciousness of guilt
and a desire to conceal it. See Jones v. Commonwealth, 279 Va. 52, 57-58 (2010).
CONCLUSION
We conclude that the evidence before the jury, and the inferences reasonably deducible
therefrom, was sufficient to support a finding beyond a reasonable doubt that Lambert had, prior
to the accident, self-administered drugs that impaired his ability to drive safely. Accordingly, we
will affirm the judgment of the Court of Appeals.
Affirmed.
5 | 01-03-2023 | 04-09-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4523855/ | PRESENT: Goodwyn, Mims, Powell, Kelsey, McCullough, and Chafin, JJ., and Koontz, S.J.
VACORP
OPINION BY
v. Record No. 190356 JUSTICE STEPHEN R. McCULLOUGH
April 9, 2020
MIASIA YOUNG, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Gregory L. Rupe, Judge
The School Board for the City of Richmond has contracted for coverage of its vehicles
via a self-insurance risk pool managed by the Virginia Association of Counties Group
Self-Insurance Risk Pool, or VACORP. Miasia Young, who was injured while riding a school
bus, filed a declaratory judgment action seeking resolution of the scope of coverage with respect
to the school board’s uninsured/underinsured motorist coverage. She argued that the School
Board’s UM/UIM coverage was $1 million, as provided in the contract between the School
Board and VACORP, and that the legislature has imposed a floor, not a cap, on UM/UIM
coverage for entities that self-insure. VACORP responded that the interplay of several statutes
imposes a cap on UM/UIM coverage in the amount of $50,000. The trial court agreed with
Young. For the reasons noted below, we agree and affirm.
BACKGROUND
According to the allegations in the underlying tort suit, Miasia Young was riding as a
passenger in a City of Richmond school bus when a car collided with the bus. Margaret Allen
was driving the school bus. Clara Kelly was the driver of the car. Young filed suit against
Kelly, Allen, and the City of Richmond School Board, seeking damages of $499,000 for her
personal injuries, later increased to $1.2 million. Kelly had insurance from various sources
totaling $125,000. The City of Richmond School Board is self-insured through a self-insurance
risk pool managed by VACORP.
The contract between the City of Richmond and VACORP provides UM/UIM coverage
to anyone who is injured while “occupying” a “Covered Auto.” A school bus qualifies as a
“Covered Auto.” The contract contains a limit of $1 million for coverage relating to an
uninsured/underinsured motorist. The contract specifies that the fund administered by VACORP
agrees “to pay all sums the Covered Person is legally entitled to recover as damages from the
owner or driver of an Uninsured/Underinsured Motor Vehicle.” Any person “Occupying a
Covered Auto” is a “Covered Person.” Young is a “Covered Person.”
When VACORP and Young disagreed on the extent of the coverage available to the
School Board for the City of Richmond under the UM/UIM provisions of its contract, Young
filed a declaratory judgment action to settle the issue. The parties filed cross-motions for
summary judgment. VACORP maintained that, by statute, $50,000 is the maximum amount of
such coverage available. Young responded that these statutes set a minimum, not a cap, and that
the maximum available is what is specified in the contract entered into by the School Board,
namely, $1 million. The Circuit Court agreed with Young. We awarded VACORP an appeal
from this decision. 1
1
VACORP’s assigns the following two errors:
I. The trial court erred when it granted Young’s motion for
summary judgment (and denied VACORP’s motion for summary
judgment) because Virginia Code § 22.1-194 limits the
self-insurance for school boards to $50,000 in UM/UIM coverage.
II. The trial court erred when it granted Young’s motion for
summary judgment (and denied VACORP’s motion for summary
judgment) because Virginia Code § 38.2-2206 prohibits UM/UIM
limits from exceeding the liability limits.
2
ANALYSIS
VACORP contends that the interplay of several statutes compels the conclusion that its
coverage is capped at $50,000. Young contests VACORP’s reading of those statutes. We
review the trial court’s grant of summary judgment de novo. Ricketts v. Strange, 293 Va. 101,
106 (2017). We also review a trial court’s construction of statutory provisions de novo. “[A]n
issue of statutory interpretation is a pure question of law which we review de novo.” Conyers v.
Martial Arts World of Richmond, Inc., 273 Va. 96, 104 (2007).
At the outset, we note that our decision in Frederick Cty Sch. Bd. v. Hannah, 267 Va.
231, 239 (2004), is not controlling on the question before us, namely, whether Code § 22.1-190
and Code § 22.1-194, among other statutes, provide a statutory cap of $50,000 on UM/UIM
coverage, irrespective of any contrary contractual arrangements by the parties. We simply did
not answer that question in Hannah because it was not before us. Instead, the case turned on
whether the school board was required to obtain a certificate from the Commissioner of the
Department of Motor Vehicles.
Under Code § 22.1-190, school boards must insure every vehicle unless the school board
receives a certificate of self-insurance under Code § 22.1-194. Code § 22.1-190 provides in
relevant part:
A. Every vehicle shall be covered in a policy of liability and
property damage insurance issued by an insurance carrier
authorized to transact business in this Commonwealth, in the
amounts of at least $50,000 for injury, including death, to one
person; $500,000 for injury, including death, to all persons injured
in any one accident; and $50,000 for damage, including
destruction, to the property of any person, other than the insured.
In addition, the policy of insurance shall provide coverage for loss
or damage caused by an uninsured motorist in accordance with the
provisions of § 38.2-2206 and in the amounts required by this
section.
3
....
D. This insurance shall not be required in cases where pupils are
transported in vehicles which are owned or operated by a county,
city, town or school board which has qualified for and received a
certificate of self-insurance from the Commissioner of the
Department of Motor Vehicles, following a certification of
financial responsibility equal to that required under subsection A
of this section.
Nothing in the text of Code § 22.1-190 forbids a school board that has self-insured from
obtaining a contract through a pool for more than the minimum amount of $50,000.
Consequently, Code § 22.1-190 does not operate as a statutory cap for the school board’s
UM/UIM coverage.
VACORP also relies on Code § 22.1-194. That statute provides as follows:
In case the locality or the school board is the owner, or operator
through medium of a driver, of, or otherwise is the insured under
the policy upon, a vehicle involved in an accident, the locality or
school board shall be subject to action up to, but not beyond, the
limits of valid and collectible insurance in force to cover the injury
complained of or, in cases set forth in subsection D of § 22.1-190,
up to but not beyond the amounts of insurance required under
subsection A of § 22.1-190 and the defense of governmental
immunity shall not be a bar to action or recovery.
VACORP contends that this statute establishes a limit of $50,000 on UM/UIM coverage. It
reasons that because the School Board for the City of Richmond is self-insured under subsection
D of § 22.1-190, it can be liable “up to but not beyond the amounts of insurance required under
subsection A of § 22.1-190.” In turn, subsection A of Code § 22.1-190 contemplates coverage of
“at least $50,000 for injury.”
We disagree with VACORP’s proposed construction of Code § 22.1-194. As the circuit
court noted, it is not clear whether the phrase “up to but not beyond the amounts of insurance
required under subsection A of § 22.1-190” refers exclusively to the $50,000, and thus imposes a
4
cap, or if that phrase instead refers to “at least $50,000.” If it is the latter, the school board could
choose to obtain additional coverage. We have held that “the statute governing UM insurance
‘was enacted for the benefit of injured persons, is remedial in nature, and is liberally construed so
that the purpose intended may be accomplished.’” USAA Cas. Ins. Co. v. Alexander, 248 Va.
185, 194 (1994). This statutory canon of construction supports interpreting the statute as
allowing school boards to contract for more UM/UIM coverage than the $50,000 floor. 2
Moreover, our common-law tradition counsels that courts “are not lightly to interfere” with
lawful exercises of the “freedom of contract.” Commonwealth Div. of Risk Mgmt. v. Virginia
Ass’n of Counties Group Self Insurance Risk Pool, 292 Va. 133, 143 (2016). The contract
between VACORP and the School Board by its plain terms contemplates $1 million in UM/UIM
coverage, and it says nothing about a $50,000 cap.
In addition, through its contract with VACORP, the School Board for the City of
Richmond has obtained “valid and collectible insurance” for UM/UIM in the amount of $1
million. The phrase “valid and collectible insurance” does not distinguish between insurance
purchased through a commercial insurance carrier and insurance obtained through a contract
with a self-insurance risk pool. An insurance contract through a risk pool is “valid and
collectible” insurance. See Frederick Cty Sch. Bd. v. Hannah, 267 Va. 231, 239 (2004) (“While
not the proceeds of an insurance ‘policy,’ in the strictest sense of that term, the insurance
protection provided by the Pool is nonetheless ‘valid and collectible insurance in force to cover
2
In Catron v. State Farm Mut. Auto. Ins. Co., 255 Va. 31 (1998), citing the exemption
found in Code § 46.2-368, we stated that “[t]he legislature has placed self-insurers in a favored
status.” Id. at 38. That descriptive statement is certainly correct. In Catron, we proceeded to
analyze the language of the applicable statutes to discern legislative intent. In this instance, our
reading of the statutes leads us to conclude that the legislature did not intend to foreclose the
ability of a school board to contract for coverage beyond the minimum statutory floor.
5
the injury complained of.’”). Had the School Board not obtained a contract through an insurance
pool, and had instead chosen to be purely self-insured, its exposure would be, in the words of
Code § 22.1-194 “up to but not beyond the amounts of insurance required under subsection A of
§ 22.1-190,” namely, $50,000.
Finally, VACORP also relies on Code § 46.2-368(B). It provides that:
The Commissioner [of the Department of Motor Vehicles] may, in
his discretion and on the application of such a person, issue a
certificate of self-insurance when he is reasonably satisfied (i) that
the person has and will continue to have financial ability to
respond to a judgment as provided in this chapter, obtained against
the person, arising out of the ownership, maintenance, use, or
operation of his motor vehicles and (ii) that the certificate provides
for protection against the uninsured or underinsured motorist to the
extent required by § 38.2-2206. However, protection against the
uninsured or underinsured motorist required under this section
shall not exceed the financial requirements of § 46.2-472 and shall
be secondary coverage to any other valid and collectible insurance
providing the same protection which is available to any person
otherwise entitled to assert a claim to such protection by virtue of
this section.
This statute specifies that “protection against the uninsured or underinsured motorist required
under this section shall not exceed” the $50,000 minimum provided in Code § 46.2-472. Again,
nothing precludes a school board from contracting for more UM/UIM coverage than the strict
minimum.
We are unable to discern why the General Assembly would want to foreclose the ability
of a self-insured school board to voluntarily provide for coverage beyond the minimum $50,000.
Here, for any number of sound reasons – to protect its drivers or to provide additional coverage
for the students in its care – the School Board for the City of Richmond chose to do so. The
remedial construction afforded to UM/UIM statutes, the default principle affording broad
freedom of contract, and our prior interpretation of the phrase “valid and collectible insurance,”
6
lead us to conclude that the $1 million in UM/UIM coverage the School Board contracted for is
the amount of available UM/UIM coverage.
CONCLUSION
We will affirm the judgment of the trial court.
Affirmed.
7 | 01-03-2023 | 04-09-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4523856/ | PRESENT: Goodwyn, Mims, Powell, Kelsey, McCullough, and Chafin, JJ., and Russell, S.J.
T. MUSGROVE CONSTRUCTION COMPANY, INC.
OPINION BY
v. Record No. 190180 JUSTICE STEPHEN R. McCULLOUGH
April 9, 2020
EARL CRAIG YOUNG, D/B/A FOXFIRE TOWING
FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
Clyde H. Perdue, Jr., Judge
T. Musgrove Construction Company, Inc., (“Musgrove”) appeals from a judgment
awarding FoxFire Towing damages in the amount of $56,595.11. The vehicle towed and stored
belonged to Musgrove, but it was not engaged in company business when the accident occurred.
We conclude that the doctrine of quantum meruit is not applicable on these facts, and that
established principles governing the unjust enrichment remedy foreclose recovery for some of
the charges FoxFire sought to obtain. Accordingly, we affirm in part and reverse in part the
judgment below and remand the case for a hearing to determine FoxFire’s reduced damages.
BACKGROUND
In 2015, Musgrove was in operation but not profitable. 1 Tommy Musgrove is the
majority shareholder. Tommy agreed to let his son Timmy and David Wayne Truman harvest
some timber from a property Tommy owned so they could make some money. Tommy could
not pay them for removing the trees, but they could sell the logs. With Tommy’s permission,
Truman and Timmy borrowed a company dump truck to haul the logs.
After Timmy and Truman cut the logs and placed them in the dump truck, they were
involved in an accident. The accident occurred on August 24, 2015. The circumstances of the
1
For the sake of clarity, we will refer to Tommy Musgrove as “Tommy,” and Timmy
Musgrove, Tommy’s son, as “Timmy.”
accident are not clear. The dump truck ended up resting on its side with the logs spilled out of
the truck. Musgrove’s only connection to the accident is that the company owns the truck.
Originally, Ken Morris, with Ken Morris Garage, arrived at the scene. He requested
assistance from FoxFire Towing. FoxFire is the only company in Franklin County with the
equipment to handle this kind of job. FoxFire responded. To straighten the dump truck, FoxFire
employed a rotating style crane and other vehicles. FoxFire also employed an excavator and a
skid steer loader to place the spilled logs back in the damaged dump truck. In addition, FoxFire
removed a cherry tree, including the stump, that had been knocked over in the accident. Finally,
FoxFire collected soil that had been contaminated by fluid leaking from the truck, placed the soil
in hazardous material, or “hazmat,” barrels, and later paid for the disposal of the barrels. FoxFire
then towed the damaged dump truck away using a heavy duty wrecker and stored it in a wooded
area behind Craig Young’s house. Craig Young is the owner of FoxFire.
FoxFire sent Musgrove a bill for $12,380.11. The charges covered returning the truck to
an upright position, towing away the dump truck, cleaning up the scene, and an administrative
fee. Young explained that the administrative fee is to “[t]ake care of all the paperwork, clerical
work, answer the phone calls, people come get their things, people come in after hours to clean
their vehicles out, somebody has got to be there to close the gates, got to meet them there.”
FoxFire also charged $45 for each day it stored the damaged dump truck. When Musgrove did
not pay, FoxFire sued. By the time the suit was filed, in June 2017, the storage fees had risen to
$28,980. In response, Musgrove filed counterclaims for fraud and conversion.
At trial, FoxFire presented evidence of the work it performed to right and tow the dump
truck, the equipment it used, as well as its remedial work in picking up the logs and cleaning up
the accident scene. Young explained the charges, and stated that they were his standard charges.
2
He offered evidence of services he provided for other accidents which showed comparable
charges. The evidence also established that, following the accident, the salvage value of the
dump truck was $2,000.
The trial court denied Musgrove’s motion to strike. The advisory jury returned a verdict
in the amount of $56,595.11. 2 The jury noted on the jury verdict form that it was deducting
$2,000 for the salvage value of the truck. The jury rejected Musgrove’s counterclaims.
Musgrove filed a motion to set the verdict aside, which the trial court denied. The trial court
entered judgment in the amount of the advisory verdict and this appeal followed.
ANALYSIS
Musgrove contends that most of the charges FoxFire imposed are unjustified because
they constitute a recovery that is not warranted under the doctrine of unjust enrichment.
Musgrove contends that it was not unjustly enriched as a vehicle owner, except for the towing of
the corporation’s vehicle. FoxFire responds that the charges it imposed are reasonable and
supported by the evidence. FoxFire relies on the test for quantum meruit, whereas Musgrove
premises its argument on the doctrine of unjust enrichment. To resolve the dispute, we must
disentangle the two theories, which can easily be conflated. See, e.g., Bowden v. Grindle, 651
A.2d 347, 350 (Me. 1994) (recognizing “that there has been considerable confusion between the
terms ‘quantum meruit’ and ‘unjust enrichment’”).
2
The parties in this case agree that the jury verdict was advisory on the claim for
FoxFire’s towing, remediation and storage services but binding on Musgrove’s (rejected)
counterclaim. The question of whether a jury trial is available as a matter of right in such cases
is not before us and, therefore, we express no opinion on the subject.
3
I. CHOOSING THE APPLICABLE FRAMEWORK: QUANTUM MERUIT VS. UNJUST
ENRICHMENT.
Turning first to quantum meruit, a Latin phrase meaning “as much as he has deserved,”
Black’s Law Dictionary 1361 (9th ed. 2009), we have addressed the remedy as follows:
“[w]here service is performed by one, at the instance and request of another, and . . . nothing is
said between the parties as to compensation for such service, the law implies a contract, that the
party who performs the service shall be paid a reasonable compensation therefor.” Mongold v.
Woods, 278 Va. 196, 203 (2009) (quoting Rea v. Trotter, 67 Va. (26 Gratt.) 585, 592 (1875)). 3
The remedy available to the plaintiff in quantum meruit is an award of damages amounting to the
reasonable value of the work performed, less the compensation actually received for that work.
Id.
The cause of action for unjust enrichment, on the other hand, applies as follows: (1)
“[plaintiff] conferred a benefit on [defendant]; (2) [defendant] knew of the benefit and should
reasonably have expected to repay [plaintiff]; and (3) [defendant] accepted or retained the benefit
without paying for its value.” Schmidt v. Household Fin. Corp., II, 276 Va. 108, 116 (2008)
(citing Nedrich v. Jones, 245 Va. 465, 476 (1993)).
The measure of recovery for quantum meruit for a contract implied in fact is the
reasonable value of the services provided. Mongold, 278 Va. at 203. The measure of recovery
3
“A contract implied in fact is a contract, but not an express contract. . . . It is not an
express contract because a term has not been discussed. Often it is the price term.” Candace
Kovacic-Fleischer, Quantum Meruit and the Restatement (Third) of Restitution and Unjust
Enrichment, 27 Review of Litigation 127, 132-33 (2007). “A contract implied in law, or a
quasi-contract, is not a contract, but an action in restitution in which the defendant received a
gain at plaintiff’s expense under circumstances that make it unjust for the defendant to keep the
gain.” Id.
4
for unjust enrichment is limited to the benefit realized and retained by the defendant. Schmidt,
276 Va. at 116. The measure of damages is thus not necessarily the same.
A plaintiff can seek recovery in quantum meruit when the work was done at the instance
and request of another. Mongold, 278 Va. at 203. See also Haynes Chemical Corp. v. Staples &
Staples, 133 Va. 82, 87 (1922) (“Where one renders services for another at the latter’s request
the law, in the absence of an express agreement, implies a promise to pay what those services are
reasonably worth, unless it can be inferred from the circumstances that those services were to be
rendered without compensation.”). For example, quantum meruit is available when (1) the
parties contract for work to be done, but the parties did not agree on a price, (2) the
compensation mentioned is too indefinite, (3) there is a misunderstanding as to the price to be
paid, or, (4) in some instances, the contract is void and of no effect. Marine Dev. Corp. v.
Rodak, 225 Va. 137, 140-41 (1983). When the defendant has not requested the plaintiff’s
services, a plaintiff’s claim is for unjust enrichment. See Candace Kovacic-Fleischer, Quantum
Meruit and the Restatement (Third) of Restitution and Unjust Enrichment, 27 Review of
Litigation 127, 132-33 (2007).
Here, Musgrove did not request FoxFire’s services. Therefore, a cause of action for
quantum meruit, i.e., for a contract implied in fact, does not apply. Instead, the well-established
doctrines for unjust enrichment provide the rule of decision. FoxFire is entitled to recover from
Musgrove to the extent Musgrove benefitted from its actions.
II. FOXFIRE IS ENTITLED TO RELIEF UNDER A THEORY OF UNJUST ENRICHMENT, BUT
ONLY TO THE EXTENT THAT MUSGROVE WAS BENEFITTED.
A truck owned by Musgrove crashed and, because it had tipped over onto its side, had to
be brought upright and then towed. The law forbids leaving a vehicle immobilized for more than
24 hours on or adjacent to a roadway, Code § 46.2-1209, or leaving vehicles on private property,
5
Code § 46.2-1215. 4 See also Franklin County Ordinance § 11-96 (forbidding the abandonment
of a vehicle on the public highways of the county or parking the vehicle on the highway more
than four days). Musgrove was benefitted by the righting and towing of its truck. Consequently,
FoxFire can recover its reasonable charges for work expended in bringing the truck upright and
towing it away.
FoxFire’s bill reflects a $500 towing charge. FoxFire is entitled to claim this charge for
towing Musgrove’s dump truck away. Also, although the bill lists certain charges as “for
recovery/clean up,” the evidence at trial established that some of the vehicles listed, such as the
rotating crane, were used to return Musgrove’s truck to an upright position so that it could be
towed away. Young testified that the rotating crane wrecker was used to pick up the dump truck,
which was lying on its side. Morris testified that his wrecker was employed to help get
Musgrove’s truck upright. The mileage charges may be justified. To the extent charges were
generated by the need to return Musgrove’s dump truck to an upright position so that it could be
hauled away, the charges benefitted Musgrove and, therefore, FoxFire was entitled to recover
such items under the standards of unjust enrichment. The record is unclear, however, concerning
the extent to which some of the charges listed on the bill are proper under the standards
governing unjust enrichment. Consequently, we remand the case for resolution of those charges.
With respect to the fees associated with storing Musgrove’s truck, the Restatement
(Third) of Restitution and Unjust Enrichment provides as follows:
4
Code § 46.2-1212.1(A)(1) allows the State Police or local law enforcement agency to
remove “[a] vehicle, cargo, or other personal property that has been (i) damaged or spilled within
the right-of-way or any portion of a roadway in the primary state highway system and (ii) is
blocking the roadway or may otherwise be endangering public safety.” Subsection (C) of this
statute further provides that under certain circumstances not present here, the owner may have to
reimburse the Department of Transportation, the State Police, and others for costs associated
with the removal and subsequent disposition of property.
6
(1) A person who takes effective action to protect another’s
property from threatened harm is entitled to restitution from the
other as necessary to prevent unjust enrichment, if the
circumstances justify the decision to intervene without request.
Unrequested intervention is justified only when it is reasonable to
assume the owner would wish the action performed;
(2) Unjust enrichment under this section is measured by the loss
avoided or by a reasonable charge for the services provided,
whichever is less.
Restatement (Third) of Restitution and Unjust Enrichment § 21 (2011).
An illustration provides as follows:
Owner’s car is stolen, damaged, and abandoned by [a] thief. The
car is later found by the police, who direct Garage to tow and store
it. Despite appropriate efforts, 10 months pass before Owner is
identified by the police. In the interim, Insurer pays Owner’s
claim for theft loss and takes an assignment of title. Discovering
the whereabouts of the car, Insurer reclaims possession. Absent a
statute defining Garage’s rights in these circumstances, Garage has
a claim in restitution against Insurer for its reasonable and
customary charges for towing and 10 months’ storage, not
exceeding the car’s value.
Id. cmt. b, illus. 1. An analogous situation exists here. FoxFire’s claim for storing Musgrove’s
dump truck cannot exceed the loss avoided by the service provided, which here equals the
truck’s salvage value, in this instance, $2,000. Musgrove was not benefitted for any storage fees
in excess of that amount. FoxFire’s recovery for storage fees, therefore, must be capped at
$2,000.
The answer is different, however, for the fees associated with the scene remediation and
recovery of the logs. Under settled Virginia law, the owner of a vehicle generally “is not
vicariously liable for the negligence of another person simply because the negligent party was
operating the vehicle with the owner’s permission.” Dreher v. Budget Rent-A-Car System, Inc.,
272 Va. 390, 395 (2006). The evidence establishes that although Timmy and Truman were
7
driving Musgrove’s truck, they were not on company business. Musgrove as the vehicle’s owner
was not responsible for damage to trees in the area or for cleaning up the spilled logs. Under the
test for unjust enrichment, there was no benefit to Musgrove as the vehicle owner from efforts
undertaken by the plaintiff to clean up the accident scene and pick up the logs. Consequently,
charges associated with those activities cannot be recovered against Musgrove in this lawsuit for
the simple reason that the company was not unjustly enriched by the actions that gave rise to
those charges. Specifically, FoxFire is not entitled to recover charges for its use of the skid steer
loader and the excavator to pick up the logs or for cleaning up the fallen cherry tree.
Additionally, under the test for unjust enrichment, FoxFire is not entitled to recover other
charges from Musgrove associated with cleaning up the scene. Those charges did not benefit
Musgrove. Therefore, FoxFire is not entitled to recover under unjust enrichment principles for
the charges for buying or disposing of hazmat barrels, or the use of the hazmat equipment trailer.
Finally, FoxFire cannot claim an administrative fee. That fee was to “[t]ake care of all
the paperwork, clerical work, answer the phone calls, people come get their things, people come
in after hours to clean their vehicles out, somebody has got to be there to close the gates, got to
meet them there.” That fee benefits FoxFire, but Musgrove is not unjustly enriched in any way
in connection with a charge to cover FoxFire’s administrative overhead.
CONCLUSION
For these reasons, we will affirm in part and reverse in part the judgment of the trial
court. We remand the case for an assessment of damages not inconsistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.
8 | 01-03-2023 | 04-09-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4523859/ | PRESENT: Goodwyn, Mims, Powell, Kelsey, McCullough, and Chafin, JJ., and Millette, S.J.
SHEA CURTIS, ADMINISTRATOR OF
THE ESTATE OF MARY JO CURTIS
OPINION BY
v. Record No. 190117 JUSTICE TERESA M. CHAFIN
APRIL 9, 2020
CHRISTOPHER HIGHFILL, ET AL.
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Kimberly A. Irving, Judge
In this wrongful death case, we must determine whether the Circuit Court of Prince
William County erred by striking the evidence supporting a claim for punitive damages against a
physician who repeatedly prescribed narcotic pain medication to a patient. Under the particular
factual scenario presented, we reverse the circuit court’s decision and remand the case to the
circuit court for further proceedings.
I. BACKGROUND
When reviewing a trial court’s decision to grant a motion to strike the plaintiff’s
evidence, we view the evidence presented at trial in the light most favorable to the plaintiff and
accord the plaintiff the benefit of any inferences that may be fairly drawn from the evidence. See
Green v. Ingram, 269 Va. 281, 290 (2005).
On March 6, 2011, Mary Jo Curtis broke her ankle. Dr. Christopher Highfill examined
Curtis and performed an emergency surgery to stabilize and repair her ankle. Curtis’ ankle
fracture did not heal properly. Consequently, Highfill performed a second surgery on Curtis’
ankle on September 2, 2011. Highfill performed a third surgery to remove “hardware” from
Curtis’ ankle on November 16, 2012.
After the first surgery, Highfill prescribed Percocet to alleviate Curtis’ pain. Over the
next 40 months, Highfill wrote Curtis 144 prescriptions for Percocet. Highfill generally
prescribed between 40 and 60 five-milligram Percocet pills to Curtis on a weekly basis.
Throughout the course of Curtis’ treatment, Highfill prescribed over 7,000 Percocet pills to
Curtis.
Percocet is a drug consisting of acetaminophen and oxycodone, a controlled narcotic
substance. Highfill and Curtis discussed the risks associated with the long-term use of Percocet
on several occasions. Significantly, Highfill knew that Curtis had an increased risk of
developing an addiction to narcotic pain medication due to her history of bipolar disorder and
alcohol use. 1
Despite Curtis’ increased risk of addiction, Highfill never attempted to treat her pain with
a nonnarcotic medication. Highfill and Curtis discussed lowering her Percocet dosage, but
Curtis’ dosage remained fairly constant over the course of her treatment. Curtis called Highfill’s
office each week and requested a refill of her Percocet prescription, and Highfill wrote Curtis a
new prescription after reviewing notes from his office staff and Curtis’ chart. Curtis then came
to Highfill’s office and picked up her prescription from a staff member.
Highfill acknowledged that it was important to monitor patients who were taking
narcotics for signs of abuse and addiction. However, Highfill did not examine Curtis during the
last fourteen months of her life. Highfill examined Curtis for the last time on April 23, 2013.
Nevertheless, he continued to write Curtis prescriptions for Percocet. Between Curtis’ last
1
Although Highfill testified that he was unaware that Curtis was “abusing” alcohol, his
office file contained medical records indicating that Curtis consumed vodka daily. Furthermore,
Highfill discussed Curtis’ alcohol use with her on multiple occasions.
2
examination on April 23, 2013, and her death on June 21, 2014, Highfill wrote Curtis 52
prescriptions for approximately 2,400 Percocet pills.
When Curtis requested a new Percocet prescription on March 17, 2014, a staff member
wrote a note to Highfill explaining that Curtis had not been examined since April 23, 2013.
Despite the note, Highfill wrote Curtis a new prescription for Percocet without examining her or
scheduling a future examination. While Highfill testified that he did not see the note from the
staff member, he acknowledged that he had Curtis’ “chart in [his] hand” when he wrote the
March 17, 2014, prescription.
Highfill wrote Curtis 15 Percocet prescriptions after March 17, 2014. Notably, Highfill
wrote Curtis prescriptions for 40 five-milligram Percocet pills on both May 2, 2014, and May 5,
2014. Thus, Highfill prescribed 80 five-milligram Percocet pills to Curtis over a four-day
period. Highfill wrote Curtis’ last Percocet prescription on June 16, 2014. Curtis picked up the
prescription from Highfill’s office on June 19, 2014, and she was found dead in her home two
days later. Curtis’ autopsy indicated that her death was caused by an accidental overdose of
oxycodone, alcohol, and other prescription medications.
On June 13, 2016, the administrator of Curtis’ estate filed a wrongful death action against
Highfill and other parties. The administrator maintained that Highfill breached the applicable
standard of care in numerous ways, and that Curtis “became addicted to narcotic pain
medication, suffered an accidental overdose[,] and died” as a “direct and proximate result” of
Highfill’s negligence. In addition to the other damages permitted in wrongful death actions, the
administrator requested an award of punitive damages. In support of her punitive damages
claim, the administrator argued that Highfill’s
actions of prescribing massive amounts of clinically unwarranted,
highly addictive and dangerous narcotic pain medication to a
3
patient suffering from alcoholism . . . and bipolar disorder without
ever examining, evaluating, monitoring or even seeing the patient
for a period of approximately 14 months demonstrated a willful
and wanton disregard and a conscious indifference for . . . Curtis’
health and safety.
At trial, Highfill conceded that he “breached the applicable standard of care with respect
to his care and treatment of . . . Curtis.” Highfill, however, argued that his negligence was not
the proximate cause of Curtis’ death. Highfill moved to strike the administrator’s punitive
damages claim at the close of her case-in-chief, arguing that a plaintiff must show “willful,
wanton, and egregious conduct” in order to state a prima facie case for punitive damages. The
circuit court agreed with Highfill’s argument and granted the motion to strike the administrator’s
punitive damages claim. 2 This appeal followed.
II. ANALYSIS
On appeal, the administrator contends that the circuit court erred by granting Highfill’s
motion to strike the punitive damages claim. Based on the evidence presented during her case-
in-chief, the administrator maintains that a jury could have concluded that Highfill’s actions
constituted a “willful and wanton” disregard for Curtis’ health and safety. Under the specific
circumstances of this case, we agree that the administrator’s punitive damages claim should have
been submitted to the jury.
Code § 8.01-52 addresses the damages that are available to a plaintiff in a wrongful death
action. Pursuant to Code § 8.01-52(5), punitive damages “may be recovered for willful or
wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.”
2
The jury returned a verdict in favor of the administrator on the remainder of the
wrongful death claim at the conclusion of the trial.
4
This Court has addressed the definitions of “willful and wanton conduct” or “willful and
wanton negligence” in numerous cases. We have previously explained that “[w]illful and
wanton negligence is acting consciously in disregard of another person’s rights or acting with
reckless indifference to the consequences, with the defendant aware, from his knowledge of
existing circumstances and conditions, that his conduct probably would cause injury to another.”
Infant C. v. Boy Scouts of America, Inc., 239 Va. 572, 581 (1990) (quoting Griffin v. Shively, 227
Va. 317, 321 (1984)).
“Willful and wanton negligence, unlike gross or ordinary negligence, requires an actual
or constructive consciousness that injury will result from the act done or omitted.” Alfonso v.
Robinson, 257 Va. 540, 545 (1999). “The hallmark of this species of tortious conduct is the
defendant’s consciousness of his act, his awareness of the dangers or probable consequences, and
his reckless decision to proceed notwithstanding that awareness.” Infant C., 239 Va. at 581.
In order that one may be held guilty of willful or wanton conduct,
it must be shown that he was conscious of his conduct, and
conscious, from his knowledge of existing conditions, that injury
would likely or probably result from his conduct, and that with
reckless indifference to consequences he consciously and
intentionally did some wrongful act or omitted some known duty
which produced the injurious result.
Id. (quoting Thomas v. Snow, 162 Va. 654, 660 (1934)).
“Ill will is not a necessary element” of willful and wanton conduct. Id.; see also Green,
269 Va. at 292. A tortfeasor may be guilty of willful and wanton conduct when he “intends his
act, but not the resulting harm.” Infant C., 239 Va. at 582. If a tortfeasor “realizes or, from facts
which he knows, should realize that there is a strong probability that harm may result” from his
actions, the tortfeasor may be found to have acted in a willful and wanton or reckless manner
5
“even though he hopes or even expects that his conduct will prove harmless.” Id. at 582-83
(quoting Restatement (Second) of Torts § 500 cmt. f, at 590 (1965)).
When a defendant moves to strike a plaintiff’s claim for punitive damages, the trial court
must determine “whether the plaintiff’s evidence, and all reasonable inferences therefrom, was
sufficient to permit the jury to find that [the defendant] was so reckless or negligent as to evince
a conscious disregard of the plaintiff’s rights.” Jordan v. Sauve, 219 Va. 448, 453 (1978).
“Each case raising an issue of willful and wanton negligence must be evaluated on its own facts,
and a defendant’s entire conduct must be considered in determining whether his actions or
omissions present such a question for a jury’s determination.” Alfonso, 257 Va. at 545. “A trial
court should resolve any reasonable doubt as to the sufficiency of the evidence in the plaintiff’s
favor and should grant the motion only when it is conclusively apparent that [the] plaintiff has
proven no cause of action against [the] defendant.” Green, 269 Va. at 290 (alterations in
original). “If reasonable persons, upon the facts presented, could differ regarding whether the
conduct in question was so willful and wanton as to show a conscious disregard for the rights of
others, ‘the trial court may not remove the issue of punitive damages from the jury’s
consideration.’” PGI, Inc. v. Rathe Productions, Inc., 265 Va. 334, 346 (2003) (quoting
Huffman v. Love, 245 Va. 311, 315 (1993)).
Upon considering the evidence presented in this case under our established standard of
review, see Green, 269 Va. at 290, we conclude that the jury could reasonably have found that
Highfill’s actions evinced a reckless disregard for Curtis’ wellbeing, had the administrator’s
punitive damages claim been submitted for their consideration. On the record here, the jury
reasonably could have determined that Highfill consciously disregarded a known risk to Curtis’
6
health and safety when he continued to write Curtis prescriptions for Percocet under the
circumstances of this case.
The evidence presented established that Highfill, a medical doctor, was conscious of the
risks posed by the long-term use of narcotic pain medication. Moreover, Highfill admitted at
trial that he knew that there was an increased risk that Curtis would abuse or become addicted to
such medication due to her bipolar disorder and history of alcohol use. Highfill discussed the
risks associated with the ongoing use of Percocet with Curtis on several occasions and he
contemplated lowering her dosage of the medication. Despite Curtis’ heightened risk of
addiction, Highfill continued to write Curtis prescriptions for Percocet for over three years
without attempting to treat her pain with a nonnarcotic medication.
Highfill acknowledged that a patient taking narcotic pain medication for an extended
period of time needed to be monitored for signs of drug abuse and addiction. Highfill, however,
did not examine Curtis during the last 14 months of her life. During this time period, Highfill
wrote Curtis 52 prescriptions for Percocet. While Highfill continued to write Percocet
prescriptions for Curtis, he failed to examine her to ensure that she was not abusing the
prescribed medication.
Importantly, the evidence presented in this case could have supported the inference that
Highfill wrote Curtis multiple prescriptions for Percocet when he knew that he had not regularly
examined Curtis for signs of abuse or addiction. On March 17, 2014, one of Highfill’s staff
members wrote a note informing Highfill that he had not examined Curtis since April 23, 2013.
Highfill wrote another Percocet prescription for Curtis on that day, notwithstanding the note
attached to the request for the prescription. Highfill wrote 15 additional Percocet prescriptions
for Curtis after March 17, 2014.
7
Although Highfill testified that he never saw the note from his staff member, the jury
could have rejected this testimony. See, e.g., Shumate v. Mitchell, 296 Va. 532, 551 (2018)
(observing that “[t]he jury, as the sole judge of [a witness’] credibility, was entitled to reject h[is]
testimony”) (quoting Gilliam v. Immel, 293 Va. 18, 25 (2017)). Highfill wrote Curtis a
prescription for Percocet on March 17, 2014, based on the request attached to the note at issue.
Highfill also admitted at trial that he had Curtis’ “chart in [his] hand” when he wrote the March
17, 2014, prescription. Under these circumstances, the jury could have reasonably inferred that
Highfill consciously disregarded the note when he wrote the March 17, 2014 prescription.
We acknowledge that the evidence presented in this case did not in any way establish that
Highfill had “ill will” toward Curtis or that he intended her to suffer any harm. As previously
explained, however, “ill will” is not a required element of the willful and wanton conduct
underlying a claim for punitive damages. See Infant C., 239 Va. at 581; Green, 269 Va. at 292.
Based on the evidence presented at trial, the jury could have reasonably determined that: (1)
Highfill was conscious of the risks associated with the long-term use of Percocet and Curtis’
increased risk of drug abuse and addiction, and (2) Highfill consciously disregarded those risks
when he continued to prescribe Percocet to Curtis while knowing that he had not examined her
for signs of abuse or addiction for a significant period of time. Accordingly, the administrator’s
punitive damages claim should have been submitted to the jury.
While reasonable juries might ultimately reach different conclusions concerning the
propriety of an award of punitive damages under these particular circumstances, we conclude
that the circuit court erred by granting Highfill’s motion to strike the evidence pertaining to the
administrator’s claim for punitive damages.
8
III. CONCLUSION
For the reasons stated, we reverse the circuit court’s decision striking the evidence
regarding the administrator’s claim for punitive damages and remand this case to the circuit court
for a new trial pertaining to the administrator’s punitive damages claim, should the parties be so
advised.
Reversed and remanded.
9 | 01-03-2023 | 04-09-2020 |
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Participant Search | 01-03-2023 | 08-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2700790/ | [Cite as Spotsylvania Mall Co. v. Nobahar, 2013-Ohio-1280.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
SPOTSYLVANIA MALL COMPANY ) CASE NO. 11 MA 82
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
SYED NOBAHAR, et al. )
)
DEFENDANTS-APPELLANTS )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 06 CV 3380
JUDGMENT: Reversed.
Default Judgment Vacated.
APPEARANCES:
For Plaintiff-Appellee, Atty. David A. Fantauzzi
Spotsylvania Mall Company: Atty. Ronald J. Yourstowsky
2445 Belmont Avenue
P.O. Box 2186
Youngstown, Ohio 44504-0186
For Defendant-Appellant, Ben Manesh: Atty. Matthew T. Anderson
Atty. Timothy M. Clayton, Jr.
Atty. David M. Scott
Luper Neidenthal & Logan
A Legal Professional Association
50 West Broad Street, Suite 1200
Columbus, Ohio 43215-3374
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: March 27, 2013
[Cite as Spotsylvania Mall Co. v. Nobahar, 2013-Ohio-1280.]
WAITE, J.
{¶1} Appellant, Ben Manesh, signed a commercial lease with Appellee,
Spotsylvania Mall Company. Appellant had a co-signor on the lease, Syed Nobahar.
The lease designated a Maryland address be used for communications to Appellant
and Nobahar concerning the lease. Nobahar later requested that information
concerning the lease be sent to an address in Virginia. Appellant never provided an
address other than the Maryland address contained in the lease, and did not sign the
later request sent by Nobahar. When Appellee filed a collection action against both
Appellant and Nobahar, service was attempted only at the address provided by
Nobahar, in Virginia. The trial court subsequently granted default judgment against
Appellant alone, after Nobahar was released from liability in bankruptcy court.
Appellant claims that he only became aware of the lawsuit due to Appellee’s attempts
to collect the judgment which were served at his home address in Maryland.
Appellant contends that he never received service of the original complaint at any
address reasonably calculated to give him notice of the lawsuit.
{¶2} Appellee failed to explain why service to Appellant in Virginia was
reasonable, or to establish any connection between Appellant and the Virginia
address. Appellant denied receiving service at the Virginia address and never
appeared in the lawsuit. Under these circumstances, it was unreasonable for the trial
court to deny Appellant’s motion to vacate. The judgment of the trial court is
reversed, and the default judgment against Appellant is vacated.
Factual and Procedural History
-2-
{¶3} The record in this case is particularly thin. This is partly because the
initial resolution of the lawsuit was through a default judgment. The subsequent
motion to vacate added little to the facts of the case. The record also lacks, as
Appellee notes, a transcript of the hearing on Appellant’s motion to vacate and the
exhibits introduced during that hearing. This omission is due to Appellant’s failure to
file the transcript or seek leave to file the transcript when he filed his objections to the
magistrate’s decision denying his motion to vacate. The evidentiary deficiency
extends beyond the subject matter of the hearing itself. Also absent is a copy of the
lease agreement that formed the basis of the complaint as well as the facsimile sent
by Nobahar that was alleged to have changed the address for service after the
execution of the lease. A thorough review of the record in the trial court reveals that
default judgment was granted despite the fact that Appellee never filed a copy of the
lease agreement. The record further discloses that after obtaining default judgment
on a contract it never produced, Appellee never remedied the omission. The lease
agreement or agreements may have been produced to the magistrate during the
hearing on the motion to vacate, however, because neither party filed a transcript of
the hearing or copies of the evidence used during the hearing, this material, apart
from a single clause included in the magistrate’s findings of fact, was not part of the
record before the trial court when ruling on Appellant’s objections to the magistrate’s
decision or when entering final judgment. Because this material was not provided to
the trial court it is not properly before us on appeal.
-3-
{¶4} The facts that can be gleaned from the record as it comes before us
begin with Appellee Spotsylvania Mall Company’s complaint for money only, filed on
August 30, 2006. Appellee alleges in the complaint that it is the owner of property
leased by Appellant, Ben Manesh, and another man, Syed Nobahar. According to
Appellee the address for both men is 5610 Heritage Hills Circle, Fredericksburg,
Virginia, 22407. According to the complaint, copies of the lease or leases for two
units in the Spotsylvania Mall in Fredericksburg, Virginia, were not submitted with the
complaint because they were “voluminous” and would be “submitted to [the court]
prior to or at trial.” (8/30/06 Compl., ¶3.) Appellee did attach an accounting to the
complaint, itemizing the delinquent amounts for each property. The complaint
alleged, and the accounting reflected, damages initially totaling $40,795.03, a total
that would continue to increase until final judgment. The court ultimately awarded
Appellee $188,006.55 plus 18% interest to accrue until payment is made in full, and
all costs of the action. (4/27/11 J.E.)
{¶5} Both parties agree that Appellant and his co-defendant in the matter
below, Syed Nobahar, co-signed at least one commercial lease for property owned
by Appellee on July 9, 2004. Appellant claims ignorance of the lease terms, although
he concedes that he signed a lease. He also claims ignorance of the change of
address sent by Nobahar and has no knowledge of service of the complaint to the
Virginia address provided to Appellee by Nobahar. The complaint actually refers to
two leases. However, the parties, the magistrate, and the trial court subsequently
refer to a single lease. The parties agree that the lease or leases include a provision
-4-
agreeing to the jurisdiction of Mahoning County courts for all disputes arising out of
the lease terms. The parties agree, and the magistrate’s findings of fact adopted by
the trial court confirm that the lease required Appellant and Nobahar to designate an
address for all communications pertaining to the lease and established a procedure
for changing that address. (4/27/11 J.E., p. 2.) According to the magistrate’s findings
of fact adopted by the trial court, the lease specifies 401 Stone Mason Drive,
Gaithersburg, Maryland, 20878, as the address for both Appellant and Nobahar.
(4/27/11 J.E., p. 2.) According to Appellee and the magistrate’s findings of fact, on
October 13, 2005 Appellee received a facsimile seeking to change the designated
address from the original Maryland address to 5610 Heritage Hills Circle,
Fredericksburg, Virginia, 22407. (4/27/11 J.E., p. 2.) Appellee admits that this notice
was faxed from and signed by Nobahar, but not Appellant. (4/27/11 J.E., p. 2.)
According to Appellant, he had no knowledge of the facsimile and has no connection
to the address in Fredericksburg. All parties agree that, although the facsimile did
not comply with the procedure designated in the lease for a change of address,
Appellee used the Virginia address provided by Nobahar for all subsequent
communications concerning the lease.
{¶6} On September 7, 2006, service of the complaint was initially attempted
via certified mail to both Appellant and Nobahar at 5610 Heritage Hills Circle,
Fredericksburg, Virginia, 22407, the change of address provided by Nobahar, alone.
On October 4, 2006, both pieces of certified mail were returned by the U.S. Post
Office to the Clerk of Courts as unclaimed. Appellee then requested, pursuant to
-5-
Civ.R. 4.6(D), that service to both parties be reissued via regular mail, to the same
Fredericksburg, Virginia, address. Service via regular mail was completed by the
clerk on October 6, 2006, and a certificate of mailing was entered on the docket by
the clerk the same day. There is no indication in the record that service via regular
mail to the Fredericksburg address was returned. Nothing further appears in the
docket pertaining to service of the complaint. The next docket entry is a suggestion
of bankruptcy, filed by Appellee on behalf of Nobahar, on March 20, 2007. The
certificate of service indicates that this filing was sent to both Nobahar and allegedly
to Appellant, again to the Fredericksburg address. The trial court stayed the matter
due to Nobahar’s Chapter 7 filing on March 22, 2007.
{¶7} The trial court granted Appellee’s motion to return the case to the active
docket on April 4, 2008, and specifically noted that proceedings would continue
against Appellant, alone, as Nobahar had received a discharge in bankruptcy. No
certificate of service accompanied Appellee’s April 3, 2008 motion to return the case
to the active docket.
{¶8} Appellee filed a motion for default judgment on May 19, 2008. Without
explanation, this motion was sent to Appellant at 9901 Potomac Manors Drive,
Potomac, Maryland, 20854, rather than the Fredericksburg address used for every
other document in the lawsuit to date. Appellee attached a new statement of account
and supporting affidavit to the motion, as well as an affidavit verifying that Appellant
was not in active military service, in compliance with the Servicemembers Civil Relief
Act. Appellee did not attach to the motion, or separately file, a copy of the lease
-6-
agreement(s). Despite the fact that the lease was never properly filed with the court,
the trial court granted default judgment against Appellant for $188,006.55, plus
interest and the costs of the lawsuit, on July 10, 2008. Between the May 19, 2008
motion for default judgment and the July 10, 2008 entry granting default judgment no
additional filings appear of record. Between the filing of the complaint on August 30,
2006 and the decision granting default judgment on June 12, 2009, Appellant never
answered the complaint or otherwise appeared in the lawsuit.
{¶9} On June 12, 2010, a year after default judgment was granted, Appellee
took steps to collect on the judgment. Appellee began by filing a praecipe for
authentication of judgment. Nothing appears in the record between the June 12,
2010 praecipe and Appellant’s first entries on the docket, filed on December 3, 2010,
which included a motion to reactivate the case and a hybrid motion to vacate the
judgment and for stay of execution. According to Appellant’s motions, and the copy
of an affidavit attached to the motion to vacate (no original document appears in the
file), Appellant was never served with the underlying complaint and was unaware of
the lawsuit until Appellee began collection attempts. Appellant also alleged that he
had never “maintained a habitual, continuous or highly continual and repeated
physical presence at 5160 Heritage Hills Circle, Fredericksburg, VA 22407,” the
address provided solely by Nobahar and which was used by Appellee to allegedly
obtain service of the complaint. (12/3/10 Motion Exh., Manesh Aff., ¶4.)
{¶10} Appellee responded to Appellant’s motion to vacate by detailing its
collection efforts through the Maryland courts. Appellee discusses only collection
-7-
efforts, all of which reflect attempted service at the Potomac, Maryland address, not
the original Gaithersburg address specified in the lease, or the Fredericksburg,
Virginia, address where service was originally alleged to have been made and all
documents prior to the motion for default judgment were sent. Appellant’s motion to
vacate was set for a hearing before the magistrate on February 3, 2011 and leave
was granted by the magistrate until February 17, 2011 to allow Appellant to file a
supplemental memorandum. In his memorandum, Appellant challenged service
based on the terms of section 22 of the lease agreement, which was later quoted, at
least in part, in the magistrate’s decision. This section apparently contains the
procedure to change an address for notice purposes under the lease. The full lease
agreement, however, was not attached to the memorandum. The magistrate’s
decision denying Appellant’s motion to vacate was filed on March 3, 2011.
Appellant’s objections to the decision were timely filed on March 16, 2011. As earlier
noted, no transcript of the hearing was filed with Appellant’s objections and no motion
for an order granting an extension of time to file the transcript appears in the record.
No additional exhibits or transcripts were filed by either party.
{¶11} The trial court held a hearing on Appellant’s objections to the
magistrate’s decision on April 19, 2011. On April 27, 2011, the trial court overruled
Appellant’s objections and adopted the magistrate’s findings of fact and conclusions
of law in their entirety. On May 20, 2011 Appellant filed this timely appeal from the
April 27, 2011 entry of judgment.
-8-
{¶12} On June 6, 2011, nearly two months after the trial court’s ruling and
approximately two weeks after Appellant filed his notice of appeal, a transcript of the
February 4, 2011 hearing and accompanying exhibits were filed to this Court. The
transcript was endorsed by the court reporter on June 6, 2011. The date of filing, the
date of the reporter’s signature, and the accompanying statement by the reporter
clearly reflect that the transcript and attached exhibits were not filed with the trial
court prior to the court’s April 27, 2011 ruling adopting the magistrate’s decision and
were instead filed for the first time in the court of appeals. (Notice of filing transcript
of proceedings on appeal with exhibits, June 6, 2011).
{¶13} The record also contains three blue assignment notice envelopes, all of
which were returned by the U.S. Postal Service as addressee not known, unable to
forward. The first two assignment envelopes were sent on May 30, 2008 and appear
to have contained the trial court’s May 29, 2008 notice of assignment of a July 9,
2008 hearing on the motion for default. It is unclear to what address these notices
were sent, but “Don’t live here anymore” is handwritten across both under the U.S.
Post Office’s “attempted-not known” notice and the two envelopes were returned by
the U.S. Post Office to the court on June 10, 2008. A third assignment notice
envelope, apparently containing the trial court’s January 6, 2011 notice of
assignment for the February 7, 2011 hearing on Appellee’s motion to reactivate the
case, is also endorsed “Don’t live here,” and was returned by the U.S. Post Office as
“attempted not known” on January 10, 2011.
Argument and Law
-9-
Assignment of Error
THE TRIAL COURT ERRED IN ADOPTING THE MAGISTRATE’S
DECISION DENYING MANESH’S MOTION TO VACATE JUDGMENT.
{¶14} A trial court’s decision to deny a motion to vacate judgment is reviewed
on appeal for an abuse of discretion whether that motion is made pursuant to Civ.R.
60(B) or to the court’s inherent power at common law to vacate a void judgment.
GTE Automatic Elec., Inc., v. ARC Industries, Inc., 47 Ohio St.2d 146, 150, 351
N.E.2d 113 (1976) (“[h]aving found that the order of the trial court [granting the
motion to vacate judgment] was a final order, we may now proceed to the question of
whether the making of the order was an abuse of discretion”) and Terwoord v.
Harrison, 10 Ohio St.2d 170, 171, 757 N.E.2d 362 (1967) (because the trial court
order overruled a motion to vacate default judgment “the trial court had the inherent
right, founded upon the common law, to sustain or overrule the motion to vacate that
judgment” and the appellate court “in ruling on the propriety or impropriety of that
order, had only to rule upon the limited question of whether or not the trial judge
abused his discretion in refusing to vacate the order”). “It is axiomatic that for a court
to acquire jurisdiction there must be a proper service of summons or an entry of
appearance, and a judgment rendered without proper service or entry of appearance
is a nullity and void.” Lincoln Tavern, Inc. v. Snader, 165 Ohio St. 61, 64 (1956) “[A]
trial court is without jurisdiction to render a judgment or to make findings against a
person who was not served summons, did not appear, and was not a party in the
court proceedings. A person against whom such judgment and findings are made is
-10-
entitled to have the judgment vacated.” State ex rel Ballard v. O’Donnell, 50 Ohio
St.3d 182, 184, 553 N.E.2d 650 (1990). “The authority to vacate a void judgment is
not derived from Civ. R. 60(B) but rather constitutes an inherent power possessed by
Ohio courts.” Patton v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988), paragraph
four of the syllabus.
{¶15} Abuse of discretion connotes more than an error of judgment; it implies
that the court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “When applying the
abuse of discretion standard, a reviewing court is not free to merely substitute its
judgment for that of the trial court.” In re Jane Doe 1, 57 Ohio St.3d 135, 137-138,
566 N.E.2d 1181 (1991). “The term discretion itself involves the idea of choice, of an
exercise of the will, of a determination made between competing considerations. In
order to have an ‘abuse’ in reaching such determination, the result must be so
palpably and grossly violative of fact and logic that it evidences not the exercise of
will but perversity of will, not the exercise of judgment but defiance thereof, not the
exercise of reason but rather of passion or bias.” Huffman v. Hair Surgeon, Inc., 19
Ohio St.3d 83, 87, 482 N.E.2d 1248, 1252 (1985).
{¶16} The motion to vacate judgment in this instance was initially heard by a
magistrate. An appeal filed from a trial court’s decision adopting a magistrate’s
decision is also subject to the same abuse of discretion standard. Where, as here,
the “party objecting to a referee’s report has failed to provide the trial court with the
evidence and documents by which the court could make a finding independent of the
-11-
report, appellate review of the court's findings is limited to whether the trial court
abused its discretion in adopting the referee’s [decision].” State ex rel. Duncan v.
Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730, 654 N.E.2d 1254 (1995). A
party’s failure to provide the trial court with the transcript or other evidence prevents
this Court from considering any transcript submitted with the appellate record. Id.
“[W]here the objecting party fails to provide the trial court with the transcript of the
proceedings before the magistrate, the appellate court is precluded from considering
the transcript” submitted with the appellate record because “[a] reviewing court
cannot add matter to the record before it, which was not a part of the trial court's
proceedings, and then decide the appeal on the basis of the new matter.” State ex
rel. Duncan and State v. Ishmail, 54 Ohio St.2d 402, 337 N.E.2d 500 (1978),
paragraph one of syllabus. An appeal under these circumstances limits the appellate
court review to “whether the trial court's application of the law to its factual findings”
was an abuse of discretion. State ex rel. Duncan at 730.
{¶17} In order to meet the “standard of due process, first enunciated in
Mullane v. Central Hanover Bank & Trust Co.,” service of the summons and
complaint required to initiate a lawsuit must satisfy “[a]n elementary and fundamental
requirement of due process,” which is, “notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.” (Emphasis deleted.) Samson
Sales, Inc. v. Honeywell, Inc., 66 Ohio St.2d 290, 293, 421 N.E.2d 522 (1981) and
-12-
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94
L.Ed. 865 (1950).
{¶18} The mechanics of service to an out-of-state party is governed by Civ.R.
4.3: Process: Out-of-State Service
When service permitted. Service of process may be made outside of
this state, as provided in this rule, in any action in this state, upon a
person who, at the time of service of process, is a nonresident of this
state * * * ‘Person’ includes an individual, an individual’s executor,
administrator, or other personal representative, or a corporation,
partnership, association, or any other legal or commercial entity who,
acting directly or by an agent, has caused an event to occur out of
which the claim that is the subject of the complaint arose, from the
person’s:
***
Methods of service.
Service by certified or express mail. Evidenced by return receipt
signed by any person, service of any process shall be by certified or
express mail unless otherwise permitted by these rules. The clerk shall
place a copy of the process and complaint or other document to be
served in an envelope. The clerk shall address the envelope to the
person to be served at the address set forth in the caption or at the
-13-
address set forth in written instructions furnished to the clerk with
instructions to forward.
{¶19} In addition to the service specified by Civ.R. 4.3(B)(1), which prescribes
service by certified or express mail, but also allows service “otherwise permitted by
these rules,” Civ.R. 4.6 provides options where service is refused or unclaimed:
Service unclaimed. If a certified or express mail envelope is returned
with an endorsement showing that the envelope was unclaimed, the
clerk shall forthwith notify, by mail, the attorney of record * * * If the
attorney, or serving party, after notification by the clerk, files with the
clerk a written request for ordinary mail service, the clerk shall send by
ordinary mail a copy of the summons and complaint or other document
to be served to the defendant at the address set forth in the caption, or
at the address set forth in written instructions furnished to the clerk.
The mailing shall be evidenced by a certificate of mailing which shall be
completed and filed by the clerk. * * * Service shall be deemed
complete when the fact of mailing is entered of record, provided that the
ordinary mail envelope is not returned by the postal authorities with an
endorsement showing failure of delivery. If the ordinary mail envelope
is returned undelivered, the clerk shall forthwith notify the attorney, or
serving party, by mail.
{¶20} The significance of the service requirement cannot be understated and
it is clear that even if a defendant becomes aware of a suit against him through other
-14-
means or at some later stage in the suit, unless service has been properly made or
the party has otherwise waived service by appearing in the lawsuit, no judgment may
be entered against him. Maryhew v. Yova, 11 Ohio St.3d 154, 157, 464 N.E.2d 538
(1984). “Inaction upon the part of a defendant who is not served with process, even
though he might be aware of the filing of the action, does not dispense with the
necessity of service.” Haley v. Hanna, 93 Ohio St. 49, 52, 112 N.E. 149 (1915).
{¶21} As a preliminary matter, Appellant’s argument that service cannot be
perfected on an out-of-state party via regular mail is incorrect. Appellant attempts to
create an ambiguity in Civ.R. 4.3 that ignores the text of the rule, which explicitly
allows service “otherwise permitted by these rules.” Civ.R. 4.3(B)(1). When service
is unclaimed or refused, as opposed to undeliverable, the Civil Rules allow service by
regular mail, and deem service complete only where the regular mail is not returned
as undeliverable. Civ.R. 4.6(D). Challenges to the mechanics prescribed by the Civil
Rules for service by regular mail on an out-of state party are infrequent, but in the last
thirty years, every Ohio district court that has considered the issue has found service
via regular mail to be proper. Examples include, but are not limited to, J.R.
Productions, Inc. v. Young, 3 Ohio App.3d 407, 409 44d N.E.2d 740 (10th Dist.1982)
(“In other words, Civ. R. 4.6(D) is a specific provision applicable when a certified mail
envelope is returned with an endorsement of ‘unclaimed’” and is proper for out-of-
state service where the requirements of Civ.R. 4.6 are met); also State ex rel. Scioto
Cty. Dept. of Human Servs. v. Proctor, 2005-Ohio-1581, ¶13 (4th Dist.) (“service of
process on an out-of-state defendant can be perfected when certified mail is
-15-
unclaimed by either filing the affidavit described in Civ.R. 4.3(B) or serving the
defendant by ordinary mail as contemplated in Civ.R. 4.6(D)” (Emphasis deleted.));
and Ferrie v. Ferrie, 2 Ohio App.3d 122, 124, 440 N.E.2d 1229 (9th Dist.1981) (when
serving an out-of-state party after certified mail was unclaimed, “appellee’s use of
Civ. R. 4.6(D) is fully authorized by the Rules of Civil Procedure and was proper in
this case”).
{¶22} The Supreme Court has not explicitly ruled on the issue, but that
Court’s recent change to Civ.R. 4.3, effective July 1, 2012, comports with the
conclusion reached by the various district courts who have ruled on the issue. The
new version of the rule is not applicable to the current matter, but the consensus of
the various districts as to the interaction between the prior versions of Civil Rules 4.3
and 4.6 is persuasive. It is clear that the mechanics of service in this matter were
correct. Of note here, however, is the rule that, in order for service via regular mail to
satisfy due process, the address Appellant used for service must still be “reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their objections.” Mullane,
supra, at 314.
{¶23} According to the material that appears in the record, and to the findings
adopted by the trial court, Appellant and another man, Syed Nobahar, signed a
lease. Because no party has provided evidence of the complete terms of the
agreement, we are bound by the facts pertaining to the lease as they appear in the
magistrate’s decision adopted by the trial court on April 27, 2011. According to those
-16-
findings, the lease required that Appellant and Nobahar provide an address for
receipt of all communications pertaining to the lease. Service was not sent to this
address. According to Appellee’s own admission, a second address was provided to
Appellee by Nobahar, not Appellant, for communications pertaining to the lease. The
notice was apparently not provided pursuant to lease provisions for a change of
address. Appellee admits that the notice was signed by Nobahar, but not by
Appellant. Nothing in the record connects Appellant to the notice containing this
changed address. Nothing in the record connects Appellant to the address itself.
Nothing in the record before us provides evidence of what, if any, legal relationship
may exist between Nobahar and Appellant to allow service by proxy or to authorize
Nobahar to change the address on behalf of both parties. Although Appellee claimed
during oral argument that the terms of the lease made service on one party sufficient
for both, Appellee failed to produce any evidence of such a clause in the record
below. Service to the Fredericksburg address provided by only Nobahar was
unclaimed. Service was never attempted to any other address. Appellant never
responded to the lawsuit or appeared in the record. A default judgment motion was
filed, and Appellant never responded or appeared in the record. When Appellant
filed his motion to vacate on December 3, 2010, he attached a copy of an affidavit
averring that he never received service.
{¶24} It is not necessary to apply the rules governing service to a place of
business in this instance, because nothing in the record suggests that the
Fredericksburg address was Appellant’s, or in fact Nobahar’s, place of business.
-17-
While there is a suggestion that the changed address referred to the location of the
leased premises, Appellee has not produced, and the trial court did not find, a single
connection in the record between Appellant and the Fredericksburg address provided
by Nobahar. Even if there was evidence that the leased premises was located in
Fredericksburg, there is still no evidence that Appellant had any connection to this
address other than his apparent agreement to the terms of the lease. Nothing in the
record justifies a presumption that Appellant could be served at that address.
Appellee’s emphasis on Appellant’s subsequent behavior after default was granted
and denials of service at a third address when collection was later sought is
misplaced. Absent appropriate service of the complaint, a party is not obligated to
participate in or otherwise even acknowledge a legal proceeding is taking place.
Appellant’s subsequent behavior is irrelevant to Appellee’s burden to meet the
threshold requirement that initial service of process be made at an address
reasonably calculated to give the party notice. Appellee has failed to introduce any
evidence on the record that establishes a connection between Appellant and the
address where service was attempted that would support the conclusion that service
to that address was reasonably calculated to give notice pursuant to Civ.R. 4.
{¶25} Assuming Appellant was actively avoiding service of Appellee’s
collection attempts at the Potomac, Maryland address, nothing, short of waiver, can
excuse the basic due process requirement that Appellee was first required to obtain
service of the complaint. The lack of any evidence connecting Appellant in any way
to the Fredericksburg address coupled with the admitted facts surrounding the
-18-
attempts at service negate the presumption that service to Appellant was complete at
that address. The trial court’s finding that Appellant was not credible when he
claimed he did not receive service at the Fredericksburg address because he also
denied that he later received service of the motion for default judgment at his
(apparent) home address is unreasonable. Had the record demonstrated a sufficient
connection between Appellant and the Fredericksburg address, had service of the
complaint been made to the address provided in the lease, or had service of the
complaint been attempted at what may be Appellant’s home in Potomac, Maryland
that Appellee used when seeking to collect its judgment, Appellee would have a
stronger case that default judgment was appropriate. However, the record as it
comes to this Court offers no support for the conclusion that such judgment was
warranted, here. While the trial court may appropriately make findings as to
Appellant’s credibility, subsequent denial of service during collection procedures does
not effect failure of service on the underlying complaint. The facts before us do not
establish that service on the complaint was properly sought or obtained against
Appellant. The trial court’s decision to adopt the magistrate’s decision was an abuse
of discretion. Accordingly, Appellant’s assignment of error is sustained. The decision
of the trial court denying Appellant’s motion to vacate is reversed and the trial court’s
default judgment against him is vacated.
Conclusion
{¶26} Appellant’s single assignment of error is sustained. Because no
evidence of a connection between Appellant and the Fredericksburg address used
-19-
for attempted service of the complaint appears in the record, it was unreasonable for
the trial court to conclude that service had been perfected on Appellant. The trial
court’s decision denying Appellant’s motion to vacate is reversed and the trial court’s
judgment entry granting default judgment against Appellant is hereby vacated.
Donofrio, J., concurs.
DeGenaro, P.J., dissents; see dissenting opinion.
-20-
DeGenaro, P.J., dissenting.
{¶27} While I concur with the majority’s analysis regarding the propriety of the
mechanism of service used in this case, I dissent from the conclusion that service
was not perfected against Appellant. Given the scant nature of the record and the
procedural posture of this appeal, Appellant’s ability to make his case that it was error
as a matter of law to deny his motion to vacate the default judgment is constrained.
Moreover, these two factors dictate a very narrow issue to be tested by our standard
of review. Based upon the paucity of the record, we cannot adequately test whether
the trial court abused its discretion by overruling Appellant’s objections to the
Magistrate’s Decision. Rather, we must presume the regularity of those proceedings.
Accordingly, the judgment of the trial court should be affirmed.
{¶28} The majority and I differ on how to apply the United States Supreme
Court holding in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70
S.Ct. 652, 94 L.Ed. 865 (1950), to the facts of this case; specifically, whether the
address used by Appellee was “reasonably calculated” to provide Appellant with
notice of the Complaint. Resolution of this issue is fact-driven by necessity; what is
reasonable in one case may not be in another. This raises another analytical
distinction. As a matter of Ohio law, in the absence of a transcript the court of
appeals must presume sufficient evidence was presented to the trial court to support
its decision. Here, the majority has done the opposite, presuming insufficient
evidence was presented.
{¶29} The majority correctly notes the record is very limited here in the first
instance; for example, it is unclear from the record whether the lease was filed with
the trial court before default judgment was granted. That the lease was not properly
before the trial court was detrimental to Appellant’s argument contained in his
objections before the trial court and fatal to his argument on appeal, as will be
discussed below. However, the complaint was for money damages only, and the
absence of the lease, while sloppy litigation practice, was not fatal to Appellee here
as the majority has concluded. The record reveals there was a hearing before the
trial court on the motion for default judgment on July 9, 2008 where evidence was
-21-
presumably presented, including the lease. However, Appellant has failed to file that
transcript. We do know the lease was presented at the hearing before the magistrate
on Appellant’s motion to vacate; however, we cannot consider the substance of that
document, aside from what the magistrate notes in his findings of fact.
{¶30} But I differ with the majority in the presumptions that can be made in
light of this evidentiary gap. “When portions of the transcript necessary for resolution
of assigned errors are omitted from the record, the reviewing court has nothing to
pass upon and thus, as to those assigned errors, the court has no choice but to
presume the validity of the lower court's proceedings, and affirm.” Knapp v. Edwards
Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384, 385 (1980).
{¶31} The majority has done the opposite; in effect presuming from the lack of
a transcript that evidence in support of certain factual matters was not presented by
Appellee, and vacating the default judgment for that reason. Pursuant to Knapp’s
directive, we must presume sufficient evidence was presented to support the initial
default judgment as well as the Magistrate’s finding that Appellant was properly
served; that as a matter of law the Fredericksburg Virginia address was reasonably
calculated to provide notice. Mullane, supra.
{¶32} The procedural posture of the case controls from which party’s
perspective we review the record; specifically, which party bears the burden of proof.
The default judgment was not appealed. This matter is before us on Appellant’s
motion to vacate a judgment, first heard by a magistrate, and then by the trial court
hearing Appellant’s objections, and denying the motion. On appeal, Appellant argues
that the magistrate and the trial court abused their discretion by denying a motion to
vacate a judgment, not in granting judgment in the first instance. This is a subtle but
fundamental difference, because it dictates how broadly or narrowly this court
reviews the discretion exercised by the trial court. Coupled with the inadequacy of
the record filed with this court by Appellant, our standard of review is particularly
constrained in this case. The issue before us is a narrow one: whether the trial court
abused its discretion by overruling Appellant’s objections and denying the motion to
vacate. State ex rel. Duncan, supra.
-22-
{¶33} Appellant failed to provide the trial court with, at a minimum, the
transcript of the hearing before the magistrate, including admitted exhibits. The
transcript from the default judgment hearing has not been included in the record as
well. This makes it virtually impossible for this court to measure whether the trial
court abused its discretion in determining as a matter of law that service was proper
as contemplated by Mullane. Thus, Knapp dictates we presume the regularity of the
proceedings before the magistrate.
{¶34} Reliance on Appellant’s self-serving affidavit to find the trial court
abused its discretion is inapposite. There was a full evidentiary hearing on the
motion to vacate before the magistrate, who found Appellant’s testimony “not
credible.” We simply do not know what the other terms of the lease provided with
respect to notice; e.g., whether the notice provisions of the lease quoted in the
Magistrate’s Decision can be waived; or whether one co-tenant’s statement regarding
a change of address can bind the other. We do not know whether correspondence,
rent payments and the like between the parties originated from or were sent to the
Fredericksburg Virginia address, which would be another factual consideration
relevant to whether service was reasonably calculated pursuant to Mullane.
Moreover, counsel conceded that Appellant and the discharged defendant were
partners. This raises a whole host of factual and legal issues that need to be
resolved when considering the motion to vacate. Given Appellant’s failure to provide
a sufficient record for us to review, we must resolve ambiguities or gaps in the record
by presuming the regularity of the proceedings before the magistrate.
{¶35} What is properly in the record for appellate review are the various
exhibits filed by Appellee in opposition to Appellant’s Motion to Vacate Default
Judgment and a transcript of the hearing before the trial court on Appellant’s
objections. At that hearing, counsel for Appellant argued that Appellant’s affidavit (a
photocopy, no original was filed as a part of the record) denying service of the
complaint was uncontroverted, and pursuant to Russell v. Rooney, 7th Dist. No. 88
CA 80, 1989 WL 27779 (Mar. 23,1989), that alone defeats service. However, as
noted above, there was a full evidentiary hearing at which Appellee did challenge
-23-
Appellant’s claim that he did not receive the Complaint, and in fact, the magistrate
found that denial incredible. The trial court’s and our standard of review of factual
findings by the magistrate is limited precisely because neither court has the benefit of
viewing the testimony of the witnesses in the manner the trier of fact did, in this
instance the magistrate. Without the benefit of reading the transcript, neither the trial
court, nor this court can say the magistrate abused his discretion by concluding
service was proper. To let a one-dimensional, self-serving affidavit factually trump
live testimony subject to cross-examination is problematic. It would create case law
in this district permitting a defendant to collaterally attack and defeat a valid default
judgment, rather than defending it in the first instance, or filing a direct appeal of that
judgment. To permit this collateral attack would also negatively impact the principle
of the finality of judgments.
{¶36} In conclusion, it is incumbent upon Appellant to provide a sufficient
record to the trial court to address his objections, and to this court to address the
assigned error. Here, Appellant failed to do so. Further, the procedural posture of
the case placed the burden of proof on the motion to vacate upon Appellant.
Whether the Fredericksburg Virginia address was “reasonably calculated” to provide
Appellant with notice of the Complaint, as contemplated by Mullane, is necessarily
driven by the facts; what is reasonable in one case may not be in another. Given
Appellant’s failure to provide a sufficient record for us to review, we must resolve
ambiguities or gaps in the record by presuming the regularity of the proceedings
before the magistrate. Thus, the decision of the trial court should be affirmed. | 01-03-2023 | 08-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2763577/ | In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3054
DOROTHY J. EVANS, et al., individually and as Personal Repre-
sentative of the Estate of William Louis Evans, Jr., deceased,
Plaintiffs-Appellants,
v.
GREENFIELD BANKING COMPANY and JOANA SPRINGMIER,
Defendants-Appellees,
and
ROBERT A. MCDONALD, ∗ Secretary of Veterans Affairs,
Party-in-Interest.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 12 CV 01569 — Tanya Walton Pratt, Judge.
____________________
ARGUED APRIL 15, 2014 — DECIDED DECEMBER 22, 2014
∗Pursuant to Federal Rule of Appellate Procedure 43(c)(2), we have
substituted Robert A. McDonald for Eric K. Shinseki as the named party-
in-interest.
2 No. 13-3054
____________________
Before RIPPLE and WILLIAMS, Circuit Judges, and ST. EVE,
District Judge. **
WILLIAMS, Circuit Judge. After the United States Depart-
ment of Veterans Affairs determined William L. Evans, Jr.
was no longer competent to manage his veterans’ benefits, it
appointed his daughter as the federal fiduciary. The VA later
terminated her appointment and appointed the Greenfield
Banking Company. Evans’s wife and daughter filed this suit
asserting breach of fiduciary duty and conversion by the
Bank. They also seek the creation of a constructive trust. The
complaint alleges that the Bank complied with the terms of
its obligations to the VA as federal fiduciary but that doing
so meant it breached its fiduciary duty to Evans. The com-
plaint does not make any allegations of misuse of funds,
mismanagement depriving him of the use of any funds, em-
bezzlement, or the like. We conclude that the district court
properly dismissed this case for lack of jurisdiction because
the allegations made in the complaint are outside the scope
of state court review, and therefore ours as well. We affirm.
I. BACKGROUND
Because this is an appeal from the grant of a motion to
dismiss, we take the narrative that follows from the allega-
tions in the complaint and draw all reasonable inferences in
it in the plaintiffs’ favor. See Virnich v. Vorwald, 664 F.3d 206,
212 (7th Cir. 2011). Evans was a United States military veter-
an who received approximately $3,900 each month in bene-
**Of the Northern District of Illinois, sitting by designation.
No. 13-3054 3
fits from the VA. In July 2009, the VA determined that Evans
was no longer competent to manage his VA benefits and ap-
pointed Carolyn Stump, Evans’s daughter, as his “federal
fiduciary” to manage his VA benefits. The VA terminated
Stump’s federal fiduciary appointment in early October 2010,
and, on October 7, 2010, appointed the Bank as Evans’s fed-
eral fiduciary. Stump had not known that the Bank would be
appointed.
In the meantime, Stump had requested and received an
Indiana state-court order on October 1, 2010 appointing her
as Evans’s permanent guardian. She had already been his
attorney-in-fact since 2005 pursuant to a Durable Power of
Attorney. Although Stump was no longer Evans’s federal fi-
duciary in November and December 2010, she made expend-
itures on his behalf in those months. The Bank requested VA
approval in January 2011 to reimburse Stump for expendi-
tures she made on behalf of Evans in November and Decem-
ber 2010, but the complaint alleges that Stump was not fully
reimbursed.
On October 13, 2011, Evans’s wife and daughter filed a
complaint in Indiana state court against the Bank and one of
its employees with counts alleging breach of fiduciary duty
and conversion, and another seeking a constructive trust.
The complaint alleged among other things that the Bank had
breached its fiduciary duty to Evans or succumbed to a con-
flict of interest by complying with the terms of its federal fi-
duciary agreement with the VA. The Secretary of Veterans
Affairs moved to intervene as a party in interest and filed a
motion to dismiss the state court action for lack of jurisdic-
tion or in the alternative to stay the action pending resolu-
4 No. 13-3054
tion of Stump’s case that was then pending in the United
States Court of Appeals for the Federal Circuit. 1
In October 2012, the plaintiffs filed an “Emergency Mo-
tion for Hearing to Appoint a Replacement Fiduciary” which
stated in part that “[t]he underlying conflict concerned
whether [the Bank] and the VA’s actions were consistent with
the law.” Six days later, the Secretary removed the case to
federal district court, noting that prior to the emergency mo-
tion the plaintiffs had repeatedly asserted they were not pur-
suing claims against the VA in the case. The Secretary then
filed in federal court its pending motion to dismiss for lack
of jurisdiction or in the alternative to stay.
The Bank resigned as federal fiduciary for Evans’s VA
benefits in April 2012, and an attorney was appointed as the
replacement fiduciary. Evans passed away on December 23,
2012. Stump was appointed the personal representative of
Evans’s estate and continued the litigation on the estate’s be-
half. The district court granted the motions to dismiss with-
out prejudice, ruling that it lacked jurisdiction to decide the
1In May 2011, Stump had sought a writ of mandamus from the Unit-
ed States Court of Appeals for Veterans Claims for reasons including the
VA’s alleged refusal to reimburse Stump for expenses incurred and for
its refusal to acknowledge her authority as attorney-in-fact and guardi-
an. The Veterans Court rejected Stump’s request. She then appealed to
the United States Court of Appeals for the Federal Circuit. In January
2013, the Federal Circuit ruled that mandamus relief was not warranted
and directed the Evans family to seek relief regarding the Secretary’s
appointment of the Bank as federal fiduciary before the Board of Veter-
ans Appeals. The action before the Board ended due to Evans’s death in
December 2012.
No. 13-3054 5
claims in the complaint because the plaintiffs had not ex-
hausted their administrative remedies.
II. ANALYSIS
The question on appeal is whether the district court
properly dismissed this case for lack of jurisdiction. The
plaintiffs maintain that their claims for breach of fiduciary
duty, conversion, and constructive trust are state-law claims
cognizable in Indiana state court and therefore in the federal
district court on removal. The Bank and VA, on the other
hand, contend that the allegations the plaintiffs make in their
complaint demonstrate that the state court, and as a result
the federal district court on removal, lacked jurisdiction over
this case. 2 We review the grant of a motion to dismiss de
2The plaintiffs also suggest on appeal that this case should not be in
federal court because, they say, the Secretary’s removal hinged on the
plaintiffs’ motion to the state court for the appointment of a successor
fiduciary, an issue they argue was made moot by the appointment of
such a fiduciary and Evans’s later passing. First, the plaintiffs’ Emergen-
cy Motion asserted that “the underlying conflict in this case has to do
with whether Greenfield Banking Company and the VA’s actions were
consistent with the law” and requested mandamus relief from the state
court ordering the Secretary to release certain funds or make VA pay-
ments directly to certain individuals. The Secretary invoked 28 U.S.C. §
1442(a), the federal officer and agency removal statute, and removed
based on those assertions, which were not dependent upon the appoint-
ment of a successor fiduciary. Next, to the extent the plaintiffs contend
that removal was untimely, the plaintiffs’ failure to challenge removal in
the district court precludes them from doing so for the first time in their
appellate brief. See 28 U.S.C. § 1447(c) (“A motion to remand the case on
the basis of any defect other than lack of subject matter jurisdiction must
be made within 30 days after the filing of the notice of removal ….”). No
such motion was made here, and it is too late for a first-time challenge to
(continued …)
6 No. 13-3054
novo, accepting all of the factual allegations in the complaint
as true and drawing all reasonable inferences in the plain-
tiffs’ favor. Chasensky v. Walker, 740 F.3d 1088, 1093 (7th Cir.
2014).
But first we must discuss what this case does not involve.
This case does not present the broad question of whether
there can ever be a state-law cause of action for breach of fi-
duciary duty against one who is a “federal fiduciary” for
purposes of veterans’ benefits. The complaint here does not
allege, for example, that the federal fiduciary mismanaged
how Evans’s funds were used for him or that the fiduciary
misappropriated or embezzled his funds. Our case also does
not involve any allegation that the Bank was appointed a fi-
duciary or guardian by the state court, and it is not a case
where the plaintiffs have identified any source of state court
authority over a fiduciary relationship between the Bank and
(…continued)
a statutory defect in removal. See GE Betz, Inc. v. Zee Co., Inc., 718 F.3d
615, 625-26 (7th Cir. 2013).
In addition, although § 1442(a) allows for federal officer or agency
removal, “it is well settled that if the state court lacks jurisdiction over
the subject matter or the parties, the federal court acquires none upon
removal.” Arizona v. Manypenny, 451 U.S. 232, 243 n.17 (1981). (This is
true even in cases where the federal district court would have had juris-
diction if the suit had originally been brought there. Id.) That is, “[t]he
jurisdiction of the federal court upon removal, pursuant to 28 U.S.C. §
1442, is essentially derivative of that of the state court.” Edwards v. United
States Dep’t of Justice, 43 F.3d 312, 316 (7th Cir. 1994). That brings us, then,
to our question of whether the Indiana state court had jurisdiction over
the allegations in the complaint.
No. 13-3054 7
Evans. Rather, this case involves a complaint which alleges
that the Bank breached its fiduciary duties by complying
with the terms of its federal fiduciary agreement with the
VA. Our question is a narrow one, limited by the specific al-
legations made in this complaint.
Congress has given the Secretary of Veterans Affairs the
power to appoint a fiduciary to receive and disburse a bene-
ficiary’s VA benefits:
Where it appears to the Secretary that the interest
of the beneficiary would be served thereby, pay-
ment of benefits under any law administered by
the Secretary may be made directly to the benefi-
ciary or to a relative or some other fiduciary for
the use and benefit of the beneficiary, regardless of
any legal disability on the part of the benefi-
ciary….
38 U.S.C. § 5502(a)(1). The implementing regulations provide
that payment of benefits to a duly recognized fiduciary may
be made on behalf of a person who is mentally incompetent.
38 C.F.R. § 13.59(a). The VA is authorized to “select and ap-
point (or in the case of a court-appointed fiduciary, to rec-
ommend for appointment) the person or legal entity best
suited to receive Department of Veterans Affairs benefits in a
fiduciary capacity for a beneficiary who is mentally ill (in-
competent) or under legal disability by reason of minority or
court action, and beneficiary’s dependents.” 38 C.F.R.
§ 13.55(a).
Congress also provides the Secretary with authority for
supervising fiduciaries:
8 No. 13-3054
Whenever it appears that any fiduciary, in the
opinion of the Secretary, is not properly executing
or has not properly executed the duties of the trust
of such fiduciary or has collected or paid, or is at-
tempting to collect or pay, fees, commissions, or al-
lowances that are inequitable or in excess of those
allowed by law for the duties performed or ex-
penses incurred, or has failed to make such pay-
ments as may be necessary for the benefit of the
ward or the dependents of the ward, then the Sec-
retary may appear … in the court which has ap-
pointed such fiduciary, or in any court having
original, concurrent, or appellate jurisdiction over
said cause, and make proper presentation of such
matters. The Secretary … may suspend payments
to any such fiduciary who shall neglect or refuse,
after reasonable notice, to render an account to the
Secretary … or who shall neglect or refuse to ad-
minister the estate according to law.… The Secre-
tary may appear or intervene … in any court as an
interested party in any litigation instituted by the
Secretary or otherwise, directly affecting money
paid to such fiduciary under this section.
38 U.S.C. § 5502(b). The implementing regulations for
§ 5502(b) found in 38 C.F.R. § 13.100 are entitled “Supervi-
sion of fiduciaries” and further discuss the Secretary’s au-
thority to supervise the fiduciaries he appoints. When the
Secretary deems it necessary to protect the beneficiary’s in-
terests, the Secretary may require a fiduciary to provide an
accounting, 38 C.F.R. § 13.100(a)(1), or may terminate the
appointment of a fiduciary and appoint a successor fiduci-
ary, id. § 13.100(a)(2). If the federal fiduciary has “failed to
No. 13-3054 9
use Department of Veterans Affairs funds for the benefit of
the beneficiary or the beneficiary’s dependents” or “has oth-
erwise failed or neglected to properly execute the duties of
his or her trust,” and informal efforts to correct the situation
prove unsuccessful, then the matter will be referred to the
Regional Counsel. Id. § 13.100(c). The VA’s “supervisory au-
thority [ ] includes the ability to investigate claims of malfea-
sance and to take appropriate action.” Gossett v. Czech, 581
F.3d 891, 899 (9th Cir. 2009) (citing 38 U.S.C. § 5502(b); 38
C.F.R. § 13.100).
Another statute, the Veterans Judicial Review Act
(“VJRA”) of 1988, creates a remedial scheme regarding bene-
fit determinations. “Congress has made clear that the VA is
not an ordinary agency,” and the VJRA reflects that. Shinseki
v. Sanders, 556 U.S. 396, 412 (2009). The VA’s adjudicatory
“process is designed to function throughout with a high de-
gree of informality and solicitude for the claimant.” Hender-
son ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1200 (2011)
(quotation omitted). In fact, the VA has a statutory duty to
help the veteran develop his or her benefits claim. Sanders,
556 U.S. at 412; see 38 U.S.C. § 5103A(1) (requiring Secretary
to make “reasonable efforts to assist a claimant in obtaining
evidence necessary to substantiate the claimant’s claim for a
benefit”).
The relevant part of the VJRA for our case concerns re-
view of decisions, and it provides in relevant part:
The Secretary shall decide all questions of law and
fact necessary to a decision by the Secretary under
a law that affects the provision of benefits by the
Secretary to veterans or the dependents or survi-
vors of veterans. Subject to subsection (b), the de-
10 No. 13-3054
cision of the Secretary as to any such question
shall be final and conclusive and may not be re-
viewed by any other official or by any court,
whether by an action in the nature of mandamus
or otherwise.
38 U.S.C. § 511(a). Subsection (b) provides an exception to
the prohibition against judicial review in (a): certain of the
Secretary’s decisions may be appealed to the Board of Veter-
ans’ Appeals, 38 U.S.C. § 7104, and then reviewed exclusive-
ly by the United States Court of Appeals for Veterans Claims
(“Veterans Court”), 38 U.S.C. § 7252, and from there only by
the United States Court of Appeals for the Federal Circuit, 38
U.S.C. § 7292. The Supreme Court recognized in 2011 that
Veterans Court’s statistics reflect that the Veterans Court had
ordered some form of relief in about 79 percent of its “merits
decisions” in the previous decade. Henderson, 131 S. Ct. at
1201.
The Veterans Court has held that administrative actions
taken pursuant to § 5502 are subject to review through the
application of 38 U.S.C. §§ 511(a) and 7104, that is, judicial
review is exclusively by the Veterans Court and then the
Federal Circuit. Freeman v. Shinseki, 24 Vet. App. 404, 413
(Vet. App. Ct. 2011) (per curiam); see also Veterans for Common
Sense v. Shinseki, 678 F.3d 1013, 1016 (9th Cir. 2012) (en banc)
(“We conclude that we lack jurisdiction to afford such relief
because Congress, in its discretion, has elected to place judi-
cial review of claims related to the provision of veterans’
benefits beyond our reach and within the exclusive purview
of the United States Court of Appeals for Veterans Claims
and the Court of Appeals for the Federal Circuit.”); id. at
1025 (“This preclusion extends not only to cases where adju-
No. 13-3054 11
dicating veterans’ claims requires the district court to deter-
mine whether the VA acted properly in handling a veteran’s
request for benefits, but also to those decisions that may af-
fect such cases.”)
The Bank and VA maintain that jurisdiction over the alle-
gations in the plaintiffs’ complaint lies solely in the Veterans
Court and that the plaintiffs failed to exhaust their adminis-
trative remedies. The VA also argues that with respect to the
claims against it, Congress has not waived the sovereign
immunity of the United States to allow review of the claims
the plaintiffs bring against it. The plaintiffs argue that they
do not challenge the manner in which the Bank handled Ev-
ans’s benefits and do not challenge the VA’s appointment of
the Bank as fiduciary, and so their suit does not fall within
the veterans’ benefits adjudicatory scheme established by
Congress.
But the allegations the plaintiffs brought in this com-
plaint all concern the discretion of the Secretary to designate,
supervise, and remove a federal fiduciary. The complaint
makes allegations regarding whether the Bank was a proper
federal fiduciary and alleges that it was without authority to
administer veteran’s benefits for Evans. See, e.g., ¶ 17 (“The
rights conveyed to Ms. Stump by both the October 2005 Du-
rable Power of Attorney and the October 1, 2010, Order,
were trampled when [the Bank] exerted control over Mr. Ev-
ans’s funds.”), id. (“GBC did not conduct any investigation
or due diligence regarding the existence of any Power of At-
torney or Guardianship appointments before accepting the
federal fiduciary appointment”). The plaintiffs also allege
that the Bank failed to provide the plaintiffs with the legal
basis for holding itself out as Evans’s fiduciary in light of
12 No. 13-3054
Stump’s status as his guardian and attorney-in-fact. ¶ 38
(“Even if initial receipt of Mr. Evans’s funds was free from
wrongdoing, [the Bank]’s refusal to determine whether it
had authority after notice from Plaintiffs of the Power of At-
torney and Guardianship was a breach of GBC’s fiduciary
duties and was wrongful and thus constitutes conversion of
Mr. Evans’s assets.”).
Yet the only way to challenge the VA’s decision to appoint
the Bank as federal fiduciary is through the mechanism set
up by Congress, a mechanism that does not allow for review
by the state court or a federal court in our circuit. The Secre-
tary made the decision to appoint the Bank as federal fiduci-
ary. Any court ruling on the propriety of that appointment
would implicate the Secretary’s authority under 38 U.S.C.
§ 5502; Freeman, 24 Vet. App. at 413 (appointing a federal fi-
duciary affects the provision of benefits under § 5502). In-
deed, the plaintiffs had already taken the statutorily pre-
scribed route to challenge the Bank’s appointment as fiduci-
ary in litigation before the Veterans Court and Federal Cir-
cuit, though their mandamus action was unsuccessful. Their
arguments there included that the Secretary had unlawfully
refused to recognize Stump’s authority as attorney-in-fact
and guardian.
The plaintiffs also allege as misconduct in their complaint
that the terms of the Bank’s appointment as federal fiduciary
were unfair. See ¶ 18 (“[T]he terms of GBC’s appointment
leave little, if any discretion with GBC regarding manage-
ment of Mr. Evans’s funds.”). They allege that the Bank was
wrong to act at the VA’s direction and without independent
discretion. See ¶ 31 (“Defendants have failed to exercise any
independent discretion to do what is best for Mr. Evans, but
No. 13-3054 13
instead have acted only when VA allows them to do so.”); ¶
33 (The Bank “compromis[ed] the fiduciary relationship by
placing [its] self-interest in meeting the VA’s demands over
the best interests of Mr. Evans.”). The complaint asserts that
the Bank followed the VA’s instructions, but that doing so
was improper, and that it declined to release funds to the
plaintiffs without the VA’s approval. ¶¶ 30; 38-41.
In short, the allegations in this complaint are that the
Bank breached its fiduciary duty to Evans in managing his
benefits by complying with its obligations as a federal fiduci-
ary with the VA. Decisions by the Secretary under 38 U.S.C.
§ 502, including the appointment and supervision of fiduci-
aries, are matters “affect[ing] the provision of benefits.” See
38 U.S.C. § 511(a); Freeman, 24 Vet. App. at 413-14. As a re-
sult, they are subject to review only by the Board of Veterans’
Appeals and ultimately by the Veterans Court and Federal
Circuit. See 38 U.S.C. § 511(a). The complaint acknowledges,
and alleges as misconduct, that the Bank complied with its
agreement with the VA and followed the Secretary’s direc-
tions. The way this complaint is pled demonstrates that the
relief sought against the Bank impermissibly intrudes on the
Secretary’s discretion under 38 U.S.C. § 5502(a)(1) and 38
C.F.R. § 13.55(a) to designate, supervise, and remove a feder-
al fiduciary.
The plaintiffs complain that if this case is dismissed they
will be left without a remedy. But our decision does not
mean federal fiduciaries are left unchecked. The federal reg-
ulations provide that when a federal fiduciary fails to use VA
funds for the fiduciary’s benefit, the case can be referred to
the Regional Counsel, 38 C.F.R. § 13.100(c), and if the matter
is criminal also to the United States Attorney, 38 C.F.R.
14 No. 13-3054
§ 38.100(d). Complaints may also be submitted to the VA Of-
fice of Inspector General. See 5 U.S.C. App. 3 §§ 2, 4. And we
again emphasize that our decision is a narrow one. The gov-
ernment is clear that it is not arguing that a state-law breach
of fiduciary claim could never be brought against a federal
fiduciary. This case does not raise claims that the fiduciary
embezzled or mismanaged or misused funds, for example.
The government acknowledges such scenarios may give rise
to state-law causes of action against the fiduciary reviewable
in state court (or federal court if diversity jurisdiction is pre-
sent). Nor does our decision mean that a fiduciary could as-
sert compliance with its obligations as a defense to try to
keep the case out of state court. The complaint here, though,
does not even allege that the fiduciary acted in a way other
than in accordance with its obligations to the Secretary and it
also does not challenge any of the governing statutes or reg-
ulations.
The plaintiffs’ citation to a line in Hardcastle v. Shinseki,
No. 12-1867 (Vet. App. July 17, 2012) (unpublished), does not
result in a contrary result. It is a nonprecedential decision,
and the rules of the United States Court of Appeals for Vet-
erans Claims provide: “A party, intervenor, or amicus curiae
may not cite as precedent any action designated as nonprec-
edential by the Court or any other court, or that was with-
drawn after having been published in a reporter, except
when the cited action has binding or preclusive effect in the
case on appeal (such as via the application of the law-of-the-
case doctrine).” Vet. App. R. 30(a). Federal Rule of Appellate
Procedure 32.1 does provide that a court may not prohibit or
restrict the citation of federal judicial opinions designated as
non-precedential or the like that were issued after January 1,
2007. But while Federal Rule of Appellate Procedure 1 states
No. 13-3054 15
that the rules “govern procedure in the United States courts
of appeals,” the Federal Circuit has explained that the Fed-
eral Rules of Appellate Procedure govern appeals from Arti-
cle III district courts and do not apply in the Court of Ap-
peals for Veterans Claims, an Article I court which prescribes
its own rules. Bailey v. West, 160 F.3d 1360, 1367 (Fed. Cir.
1998) (en banc) (overruled on other grounds). In any event
nothing in the cursory Hardcastle decision indicates what
court would be “a court of competent jurisdiction” for a
breach of fiduciary duty claim against a federal fiduciary.
Furthermore, a lack of remedy does not allow us to exercise
jurisdiction where there is none. Paige v. Cisneros, 91 F.3d 40,
42-43 (7th Cir. 1996) (dismissing claim for lack of jurisdiction
because Congress gave exclusive jurisdiction over civil ser-
vice personnel disputes to Merit Systems Protection Board
even if that meant plaintiff’s action was not reviewable in
any court or administrative tribunal because he did not qual-
ify for Board review).
At bottom, this case is essentially an end-run around ex-
clusive jurisdiction that lies elsewhere for challenges to Sec-
retary decisions. Creative pleading does not create jurisdic-
tion. Cf. Bhatt v. Bd. of Immigration Appeals, 328 F.3d 912, 914-
15 (7th Cir. 2003) (directing dismissal for lack of jurisdiction
where plaintiff recharacterized district court claim to avoid
grant of exclusive jurisdiction to court of appeals). For ex-
ample, § 511(a) does not apply to suits challenging the con-
stitutionality of the statutes underlying veterans benefits
programs, so federal district courts have jurisdiction over
such claims. Johnson v. Robison, 415 U.S. 361, 367-74 (1974).
But “courts do not acquire jurisdiction to hear challenges to
benefits determinations merely because those challenges are
cloaked in constitutional terms,” and so the Second Circuit
16 No. 13-3054
affirmed the dismissal for lack of jurisdiction of a complaint
invoking the Fifth Amendment and styled in part as a consti-
tutional action that was really a challenge to a benefits de-
termination and therefore barred from review by § 511(a).
Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir. 1994); see also Czerk-
ies v. U.S. Dep’t of Labor, 73 F.3d 1435, 1439 (7th Cir. 1996).
The complaint here is really a challenge to a federal fidu-
ciary appointment and to veteran benefits distribution and
as such, we lack jurisdiction over it. Decisions made by the
Secretary regarding benefits about which the plaintiffs take
issue can be challenged in accordance with the statutorily
prescribed process. Indeed, the plaintiffs did just that in the
Veterans Court and Federal Circuit, and now recast allega-
tions made against the Secretary as allegations against the
Bank. The district court was right to grant the motion to
dismiss the case. This conclusion makes it unnecessary for us
to address the Secretary’s sovereign immunity argument.
III. CONCLUSION
The judgment of the district court is AFFIRMED. | 01-03-2023 | 12-22-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1048700/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 18, 2011
STATE OF TENNESSEE v. RICHARD LOWELL BLANCHARD
Appeal from the Circuit Court for Bedford County
No. 16812 Robert Crigler, Judge
No. M2010-01186-CCA-R3-CD - Filed June 24, 2011
A Bedford County Circuit Court jury convicted the defendant of one count of aggravated
robbery, see T.C.A. 39-13-402(a)(1) (2006), for which he received a sentence of 11 years’
incarceration. In addition to challenging the sufficiency of the evidence to support his
conviction, the defendant argues on appeal that the trial court erred by (1) denying his motion
to suppress the photographic lineup identification, (2) denying his motion to suppress
evidence, (3) allowing testimony concerning an officer’s identification of him as a suspect,
(4) denying his motion to recuse the trial judge, (5) denying his motions for mistrial, and (6)
ordering his sentence to be served consecutively to previously imposed sentences.1
Discerning no reversible error, we affirm the judgment of the trial court.
Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed
J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and J.C.M CL IN, JJ., joined.
Hershell D. Koger, Pulaski, Tennessee (at trial and on appeal);Michael J. Collins, Assistant
Public Defender (at trial), for the appellant, Richard Lowell Blanchard.
Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Charles Crawford, District Attorney General; and Richard Cawley, Assistant
District Attorney General, for the appellee, State of Tennessee.
1
Although the issues are not presented in this order in either party’s brief, we have rearranged and
renumbered the issues presented for consideration to ensure a logical, chronological analysis of the
defendant’s claims.
OPINION
In the early morning hours of March 8, 2009, Frank Dickerson was working
the night shift at the Kangaroo Express gas station and market in Shelbyville, Tennessee,
when an individual, later identified as the defendant, entered the market. The defendant
walked toward the beer cooler, but he then came around the counter to an area restricted to
employees only. Mr. Dickerson pushed the defendant away. The defendant approached the
counter area again, pulled a knife from behind his back, and told Mr. Dickerson to open the
cash register drawer. Mr. Dickerson backed away from the defendant, activated the silent
alarm, and opened the drawer. The defendant took money totaling less than $90 from the
drawer and attempted to leave quickly. Mr. Dickerson became “a little angry,” grabbed a can
of beer from the counter, and “flung it at” the defendant. The beer can hit the defendant as
he fled. The police arrived approximately two to three minutes later.
Mr. Dickerson recognized the defendant as a customer but added that the
defendant was not a “regular.” Mr. Dickerson went to the police station later, where he
immediately identified the defendant from a photographic array presented to him by
Detective Brian Crews of the Shelbyville Police Department (SPD).
Mr. Dickerson described the knife as a large, open, lock-blade knife. When
asked if he was fearful of the defendant, Mr. Dickerson replied, “If you open a knife, yes, I
think you might hurt me.” He added that he “was afraid that [the defendant] might cut [him]
if [he] didn’t comply with what [the defendant] wanted.”
SPD Officer Sam Jacobs responded to the call of a robbery at the Kangaroo
Express market on March 8, 2009. When he arrived, he spoke to Mr. Dickerson who
described the perpetrator as clean shaven with short brown hair wearing a black t-shirt and
blue jeans.
Karen Wells, a store manager of the market, retrieved the surveillance video,
copied it, and provided a copy to the police.
SPD Detective Brian Crews received the surveillance video from Ms. Wells.
The video, played for the jury at trial, shows a man wearing hiking boots walking into the
market. Detective Crews testified that when he watched the video, he recognized the
assailant as “someone that [he] knew,” the defendant, and assembled a photographic array
containing the defendant’s photograph. When presented the photographic lineup, Mr.
Dickerson immediately identified the defendant as the perpetrator.
Based upon this identification, Detective Crews determined the defendant’s
-2-
whereabouts and obtained an arrest warrant. The defendant was arrested on the front porch
of a house where he was staying. Wearing only a pair of shorts when arrested, the defendant
asked Detective Crews to get his shoes and t-shirt from inside the house. After returning to
the police station, Detective Crews realized the shoes that he had retrieved from the house
“were the same shoes that [the perpetrator] was wearing at the time of the robbery” as could
be seen in the video. Detective Crews recalled that the defendant, who was “somewhat
intoxicated” and “not very cooperative” at his arrest, did not make a statement. Investigators
did not search the house where the defendant was arrested, and they did not find the lock-
blade knife.
The defendant testified that he was a veteran of the United States Marine Corps
and the French Foreign Legion. He spent two years employed as a trooper for the Florida
Highway Patrol until he was forced to resign after a confrontation with another trooper who
had had an affair with the defendant’s then wife. The defendant also claimed to have spent
four years working as a contractor in Iraq for the Department of Defense until he, along with
16 other contractors, was asked to leave Iraq. The defendant denied owning a knife, and he
also denied that the surveillance video showed him at the Kangaroo Express market. He said
that he was in a hotel room at the Bedford Inn at the time of the offense. He did not,
however, produce a hotel receipt at trial to substantiate his alibi.
Based upon the evidence presented, the jury convicted the defendant of
aggravated robbery. At sentencing, the trial court imposed an 11-year sentence and ordered
it served consecutively to previously imposed sentences from Bedford County for which the
defendant was on probation at the time of the aggravated robbery offense. See T.C.A. §
4–35-115(b)(6); Tenn. R. Crim. P. 32(c). A timely motion for new trial was denied by the
trial court. The defendant filed a timely notice of appeal. This case is properly before the
court.
Photographic Lineup Identification
The defendant filed a pretrial motion to exclude evidence of the photographic
lineup identification made by Mr. Dickerson. At the pretrial hearing, the defendant conceded
that Detective Crews had not employed any suggestive measures to elicit Mr. Dickerson’s
identification, but the defendant argued that the photographic lineup was itself unduly
suggestive because the defendant’s photograph shows more of his torso and he is wearing
a black t-shirt. The trial court found that the photographic array was not unduly suggestive
and ruled the identification admissible. On appeal, the defendant contends that the
photographic array was unduly suggestive and, therefore, should have been suppressed. The
State argues that the trial court’s ruling was correct.
-3-
To be sure, “convictions based on eyewitness identification at trial following
a pretrial identification by photograph will be set aside on that ground only if the
photographic identification procedure was so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390
U.S. 377, 384 (1968). In Simmons, the Court observed that “improper employment of
photographs by police may sometimes cause witnesses to err in identifying criminals.” Id.
at 383. Noting that “[e]ven if the police subsequently follow the most correct photographic
identification procedures . . . , there is some danger that the witness may make an incorrect
identification,” the Court concluded that the danger of misidentification “will be increased
if the police display to the witness only the picture of a single individual who generally
resembles the person he saw, or if . . . the photograph of a single such individual recurs or
is in some way emphasized.” Id. The Court also observed that “[t]he chance of
misidentification is also heightened if the police indicate to the witness that they have other
evidence that one of the persons pictured committed the crime.” Id.
Following Simmons, the Court in Neil v. Biggers, 409 U.S. 188, 198-99 (1972),
established a two-part analysis to assess the validity of a pre-trial identification. First, the
trial court must determine whether the identification procedure was unduly suggestive. Id.
at 198. Next, if the trial court determines that the identification procedure was unduly
suggestive, it must then consider whether, under the totality of the circumstances, the
identification was nonetheless reliable. Id. at 198-99.
In the present case, the trial court found that the photographic array was in no
way suggestive. We have reviewed the array as it appears in the record, and we note that the
individuals in the six photographs presented are remarkably similar in physical appearance.
Three of the six photographs, including that of the defendant, include more of the person’s
shoulders and torso than the other three. Of the three photographs showing the person’s
torso, all are wearing black t-shirts. These minor differences in the photographs, however,
do not single out the defendant’s photograph in any way. On balance, we find nothing
suggestive about the array. We agree with the trial court that Detective Crews did a
“remarkable job” including individuals with similar physical characteristics in the array.
Accordingly, we hold that the trial court did not err by denying the defendant’s motion to
suppress the photographic identification evidence.
Suppression of Evidence
Next, the defendant claims that the trial court erred by denying his motion to
suppress evidence of the boots taken from the house where he was arrested. The State
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responds that the trial court correctly ruled that no search of the house had occurred and that,
therefore, the boots were admissible.
At a pretrial hearing, Detective Crews testified that when he arrived at the
house to arrest the defendant, which was actually a place of business where the owner
allowed the defendant to stay, the defendant was sitting on the back porch of the house
wearing only “lounging shorts.” Because the defendant quickly became belligerent,
Detective Crews did not allow the defendant to get dressed before taking him into custody.
He did, however, ask the defendant if he wanted a shirt and shoes to wear at the jail. The
defendant indicated that he would like shoes and a shirt. Detective Crews went into the
house and picked up the first shoes and shirt he saw. Later at the jail, he realized the shoes
were similar to those worn by the perpetrator in the surveillance video and kept the shoes as
evidence rather than allowing the defendant to wear them. Based upon this proof, the trial
court found that Detective Crews entered the house at the defendant’s request and not for the
purpose of conducting a search. Accordingly, the court ruled that the boots were admissible.
A trial court’s findings of fact made in relation to a suppression hearing are
binding upon this court unless the evidence contained in the record preponderates against
them. State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001). Moreover, the trial court, as the trier
of fact, is able to assess the credibility of the witnesses, determine the weight and value to
be afforded the evidence, and resolve any conflicts in the evidence. State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996). On appeal the prevailing party is entitled to the strongest
legitimate view of the evidence and all reasonable inferences drawn therefrom. State v.
Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The defendant, as the nonprevailing party, has the
burden of establishing that the evidence contained in the record preponderates against the
findings of fact made by the trial court. Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim.
App. 1975). However, this court is not bound by the trial court’s conclusions of law. State
v. Simpson, 968 S.W.2d 776, 779 (Tenn. 1998). We review de novo the application of the
law to the trial court’s findings of fact. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000).
“According to both the Fourth Amendment and [A]rticle I, § 7 of the
Tennessee Constitution, ‘a warrantless search or seizure is presumed unreasonable, and
evidence discovered as a result thereof is subject to suppression unless the State demonstrates
that the search or seizure was conducted pursuant to one of the narrowly defined exceptions
to the warrant requirement.’” See State v. Randolph, 74 S.W.3d 330, 334 (Tenn. 2002)
(quoting State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)). It is well settled that a search
conducted pursuant to a voluntary consent is an exception to the warrant requirement. State
v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996)(citing Schneckloth v. Bustamonte, 412 U.S.
-5-
218 (1973)). The burden of proof rests upon the State to show, by a preponderance of the
evidence, that the consent to a warrantless search was given freely and voluntarily. Bumper
v. North Carolina, 391 U.S. 543, 548 (1968); see also State v. Ashworth, 3 S.W.3d 25, 28-29
(Tenn. Crim. App. 1999). An examination of this issue requires a consideration of the
totality of the circumstances. Id. at 29.
In the instant case, we hold that the evidence does not preponderate against the
trial court’s determination that, in essence, no search occurred. The defendant was arrested
on the front porch after traveling through the house wearing “lounging shorts and nothing
else.” Detective Crews responded to the defendant’s request for shoes and a shirt by entering
the otherwise empty house and going to a room that contained only a sleeping cot and the
defendant’s overnight bag. Detective Crews retrieved the first pair of shoes that he saw, as
well as a t-shirt. The evidence does not reveal that Detective Crews searched through the
defendant’s belongings to any extent. The totality of circumstances reveal that the defendant
consented to the entry of the house for the limited purpose of Detective Crews’s obtaining
a shirt and shoes for the defendant. Accordingly, we affirm the trial court’s denial of the
motion to suppress.
Detective Crews’s Testimony Concerning Identification
Next, the defendant argues that the trial court should have excluded Detective
Crews’s testimony that he believed the person on the surveillance video was the defendant.
The defendant contends that this testimony was tantamount to an identification and that it
was made without a sufficient basis of familiarity. The State responds that Detective Crews’s
testimony at trial occurred in the context of questioning regarding the similarity of the boots
taken from the house where the defendant was arrested to those seen in the surveillance video
and how this similarity motivated Detective Crews to include the defendant in the
photographic array. Thus, the State argues the testimony was relevant to show how the
investigation became focused on the defendant.
In a pretrial hearing, Detective Crews testified that when he first reviewed the
surveillance video, he believed the perpetrator to be the defendant. He said that he was
familiar with the defendant because the defendant had recently been released from jail prior
to the robbery. He also had seen the defendant at church. More significantly, Detective
Crews was familiar with the defendant because “when [the defendant] was up here [in court],
there would always be some type of outbursts, and he would stand out in a crowd.” Based
upon this knowledge of the defendant, he said he immediately recognized the defendant in
the surveillance video.
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The trial court ruled that Detective Crews would not be allowed to testify that
the perpetrator seen in the video was, in fact, the defendant. The court further held, however,
that Detective Crews had a sufficient familiarity with the defendant so that he would be
allowed to explain how his investigation progressed to the defendant’s becoming a suspect.
At trial, Detective Crews testified that he received the surveillance video from
Ms. Wells. The trial court sustained the defendant’s objection to Detective Crews’s narration
of the video. When Detective Crews said that he confiscated the boots found at the
defendant’s arrest because they were similar to those seen in the video, the defendant again
objected to Detective Crews’s discussion of the video. This time, the trial court ruled the
testimony admissible as relevant to the investigation. Detective Crews further testified that
“[w]hen [he] watched the video, [he] believed the person in the video was someone that [he]
knew as [the defendant],” so he included the defendant in the photographic array.
The questions concerning the admissibility of this evidence rest within the
sound discretion of the trial court, and this court will not interfere with the exercise of this
discretion in the absence of a clear abuse appearing on the face of the record. See State v.
DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn.
1993); State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). An abuse of discretion occurs when
the trial court applies an incorrect legal standard or reaches a conclusion that is “illogical or
unreasonable and causes an injustice to the party complaining.” State v. Ruiz, 204 S.W.3d
772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn. 2006)); see State
v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).
In this case, the trial court ruled that the Detective Crews’s testimony
concerning the defendant’s resemblance to the perpetrator seen in the video and the similarity
between the shoes worn by the perpetrator in the video to those found at the house where the
defendant was arrested was relevant to show how the investigation progressed to the
defendant’s becoming a suspect. The question remains, however, whether the explanation
of the investigation was itself relevant to a material issue. See Tenn. R. Evid. 401 (defining
relevant evidence as “evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it
would be without the evidence”); id 402 (“Evidence which is not relevant is not
admissible.”). We conclude nonetheless that even if the espoused reason for admitting the
testimony was inapt, any error in admitting the testimony was harmless. See, e.g, State v.
Schiefelbein, 230 S.W.3d 88, 128 (Tenn. Crim. App. 2007) (ruling that error in admission of
irrelevant evidence that victim knew of her mother’s suspicions that defendant had sexually
abused the victim was harmless). In our view, because the jury had an opportunity to view
the video and make an independent determination concerning the similarities between the
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defendant and the perpetrator shown in the video, the risk of Crews’s testimony being
misleading or otherwise improper was minimal. Accordingly, we conclude that the trial court
did not commit reversible error by admitting the testimony.
Recusal of Trial Judge
The defendant argues that the trial judge erred by denying his pretrial motion
requesting that the trial judge recuse himself from the trial of this case. The record reveals
that following one pretrial hearing concerning counsel’s motion to withdraw which was
denied by the trial court, the defendant leveled threats to his attorneys and the trial judge
outside the presence of the court but within court officers’ hearing. Specifically, a court
officer reported to the court that the defendant told trial counsel, “If I am convicted you will
be sorry you ever defended me.” That same day, the defendant was also heard to say, “I will
shoot every mother f****** in here.” Also within officers’ hearing, the defendant stated that
the trial judge “need[ed] to be put on his knees and shot in the head.” Upon learning this
information, the trial court did not allow counsel to withdraw but did, however, appoint
additional counsel to assist at trial.
At the next pretrial hearing, the defendant asked the trial judge to recuse
himself. The defendant argued that the judge’s knowledge of the threats allegedly made by
the defendant created an appearance of impropriety and that a reasonable person would
question the trial judge’s partiality to preside over the trial. The trial court noted that the
defendant was “just unhappy with the fact that he’s charged with a crime . . . . that things
aren’t going his way and he’s not getting what he wants” concerning the removal of counsel.
The judge also said that “if the [c]ourt were to recuse itself . . . every defendant we’ve got
would make these same kind of threats at the judge.” The trial judge characterized what had
happened as “[j]ust an occupational hazard” and ruled, “I’m confident I can follow the law
in doing this case and there’s no need for me to recuse in the case.”
The issue of a trial judge’s recusal based upon alleged bias or prejudice rests
within the discretion of the trial court. Caruthers v. State, 814 S.W.2d 64, 67 (Tenn. Crim.
App. 1991). A judge should grant a motion for recusal whenever his or her “impartiality
might reasonably be questioned.” Code of Judicial Conduct, Canon 3(E)(1); see State v.
McCary, 119 S.W.3d 226, 260 (Tenn. Crim. App. 2003). This court will not interfere with
the trial court’s discretion unless clear abuse appears on the face of the record. Owens v.
State, 13 S.W.3d 742, 757 (Tenn. Crim. App. 1999); Caruthers, 814 S.W.2d at 67.
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In the present case, the trial judge described the defendant as “just unhappy.”
He stated that he did not take seriously the defendant’s statements and minimized their
impact by characterizing them as “an occupational hazard.” Furthermore, the trial judge said
that he could follow the law and remain impartial. The record is devoid of any showing that
the trial court committed a clear abuse of discretion in this case. Accordingly, we affirm the
ruling of the trial court denying the defendant’s motion to recuse.
Mistrial
The defendant contends that the trial court erroneously denied his requests for
mistrial made when (1) the State said in opening statements that Detective Crews reviewed
the surveillance video and believed the perpetrator to be the defendant, (2) Detective Crews
testified on direct examination that he reviewed the video and believed the perpetrator to be
the defendant, and (3) the State argued during its closing surrebuttal argument that Detective
Crews reviewed the video and believed the defendant to be the perpetrator seen in the video.
The State contends that the trial court properly denied the motions for mistrial because
Detective Crews’s testimony was properly admitted at trial.
The decision to grant or deny a mistrial is entrusted to the sound discretion of
the trial court. See State v. Nash, 294 S.W .3d 541, 546 (Tenn. 2009); State v. McKinney,
929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). Accordingly, this court will disturb the trial
court’s ruling in this regard only when there has been an abuse of the trial court’s discretion.
See Nash, 294 S.W.3d at 546; State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990). An abuse
of discretion occurs when the trial court applies an incorrect legal standard or reaches a
conclusion that is “illogical or unreasonable and causes an injustice to the party
complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185
S.W.3d 319, 337 (Tenn. 2006)); see also State v. Shirley, 6 S .W.3d 243, 247 (Tenn. 1999).
“Normally, a mistrial should be declared only if there is a manifest necessity
for such action.” State v. Saylor, 117 S.W.3d 239, 250 (Tenn. 2003) (citing State v.
Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991)). “‘In other words, a mistrial is
an appropriate remedy when a trial cannot continue, or a miscarriage of justice would result
if it did.’” Saylor, 117 S.W.3d at 250 (quoting State v. Land, 34 S.W.3d 516, 527 (Tenn.
Crim. App. 2000)). “The purpose for declaring a mistrial is to correct damage done to the
judicial process when some event has occurred which precludes an impartial verdict.” State
v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). The burden of establishing the
necessity for mistrial lies with the party seeking it. Id. “In making the determination whether
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a mistrial is warranted, ‘no abstract formula should be mechanically applied[,] and all
circumstances should be taken into account.’” Nash, 294 S.W.3d at 546 (quoting State v.
Mounce, 859 S.W.2d 319, 322 (Tenn. 1993) (internal quotation marks and citation omitted)).
We cannot discern any basis to conclude that the trial court committed an abuse
of discretion in denying the defendant’s requests for mistrial or that prejudice to the
defendant resulted from the comments made by the prosecutor. As such, the defendant failed
to show any manifest necessity requiring a mistrial in this case.
Sufficiency of the Evidence
The defendant argues that the evidence is insufficient to support his conviction
of aggravated robbery because identification was an issue in this case, and, the defendant
claims, all evidence concerning his identification was improperly admitted at trial. The State
contends that the evidence sufficiently established the defendant’s guilt beyond a reasonable
doubt.
We review the defendant’s claim attacking the sufficiency of the evidence to
support his convictions mindful that our standard of review is whether, after considering the
evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e);
Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn.
Crim. App. 2003). This standard applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of direct and circumstantial evidence. Winters,
137 S.W.3d at 654.
When examining the sufficiency of the evidence, this court should neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Winters,
137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the weight and
value of the evidence, as well as all factual issues raised by the evidence are resolved by the
trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court
must afford the State the strongest legitimate view of the evidence contained in the record
as well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.
A conviction for aggravated robbery requires proof that the defendant
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committed a robbery which is defined as “the intentional or knowing taking of property from
the person of another by violence or by putting the person in fear.” T.C.A. § 39-13-401. In
addition, as relevant to this case, the robbery must be “accomplished with a deadly weapon.”
Id. § 39-13-402(a)(1).
The proof presented at trial showed that the defendant entered the Kangaroo
Market, forced his way behind the counter, brandished a knife, and demanded money from
the cash register. Mr. Dickerson, the night clerk, testified that he was afraid when the
defendant pulled the knife from behind his back and demanded the money. Mr. Dickerson
identified the defendant from a photographic lineup within days of the incident. Mr.
Dickerson identified the defendant at trial as the perpetrator. Shoes brought from the home
where the defendant was arrested matched those worn by the perpetrator in the surveillance
video from the market. We conclude that the evidence is sufficient to support the conviction
of aggravated robbery in this case.
Sentencing
In his final issue, the defendant challenges the trial court’s imposition of a
consecutive sentence in this case. Citing State v. Wilkerson, 905 S.W.2d 933, 937 (Tenn.
1995), he argues that, although the trial court imposed a consecutive sentence based upon the
defendant’s probationary status at the time this offense was committed, the court
“[e]ffectively . . . imposed consecutive sentencing on the basis that the [d]efendant was a
dangerous offender, without having to make the appropriate findings for that category.” The
State responds that the trial court properly ordered the aggravated robbery sentence to be
served consecutively to the prior sentences for which the defendant was on probation, see
T.C.A. § 40-35-115(b)(6), and that this basis alone justified consecutive sentencing in this
case. Moreover, the State argues that the trial court did indeed make further findings
concerning the severity of the offense and the need to protect society from the defendant’s
criminal conduct, despite these considerations not being requisites to the application of Code
section 40-35-115(b)(6).
When considering challenges to the length and manner of service of a sentence
this court conducts a de novo review with a presumption that the determinations of the trial
court are correct. T.C.A. § 40-35-401(d)(2006). This presumption, however, “is conditioned
upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). The appealing party, in this case the defendant, bears the burden of
establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm'n
Comments; see also Ashby, 823 S.W.2d at 169. If our review of the sentence establishes that
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the trial court gave “due consideration and proper weight to the factors and principles which
are relevant to sentencing under the Act, and that the trial court’s findings of fact . . . are
adequately supported in the record, then we may not disturb the sentence even if we would
have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). In the event the record fails to demonstrate the required consideration by the trial
court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.
In making its sentencing decision, the trial court was required to consider:
(1) The evidence, if any, received at the trial and the sentencing
hearing;
(2) The presentence report;
(3) The principles of sentencing and arguments as to sentencing
alternatives;
(4) The nature and characteristics of the criminal conduct involved;
(5) Evidence and information offered by the parties on the
mitigating and enhancement factors set out in §§ 40–35–113 and
40–35–114;
(6) Any statement the defendant wishes to make in the
defendant’s own behalf about sentencing.
T.C.A. § 40–35–210(b). The trial court should also consider “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” Id. § 40-35-103(5).
In the instant case, the defendant conceded that he was on probation at the time
of the offense but asked the court to impose a concurrent sentence. The trial court,
unpersuaded by his plea, imposed a consecutive sentence based upon the defendant’s
probationary status at the time the aggravated robbery was committed. See T.C.A. § 40-35-
115(b)(6); Tenn. R. Crim. P. 32(c)(2). The trial court further found that “a consecutive
sentence is necessary to protect society and is reasonably related to the severity of the
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offenses.”
We agree with the State that the trial court was not required to make any
findings relative to the severity of the offenses and need to protect society as a prerequisite
to applying Code section 40-35-115(b)(6). Although these findings are required in the
context of a dangerous offender finding, see id. § 40-35-115(b)(4), they are not necessary to
the imposition of consecutive sentences based upon a defendant’s probationary status at the
time the sentencing offense was committed. Nevertheless, we conclude that the record
supports the trial court’s imposition of a consecutive sentence based upon the defendant’s
being on probation when he committed the aggravated robbery in this case. Any argument
raised by the defendant that the trial court “effectively” imposed the dangerous offender
consecutive sentencing factor found at Code section 40-35-115(b)(4) lacks merit.
Conclusion
Discerning no reversible error, the judgment of the trial court is affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
-13- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3410648/ | Appellant is a practicing attorney at law at Lewiston, Idaho. In January, 1932, he was employed by one Herman Wolff to prosecute a malpractice claim against a Dr. Carssow. It is claimed by the state that appellant Burns, under the contract of employment, agreed to collect the claim for ten per cent of the recovery, and it is the contention of appellant that the said contract of employment was modified to provide that he should have reasonable compensation for his services in lieu of the ten per cent. The sum of $5,000 was collected, without suit, by Burns and a *Page 420
Washington attorney. The promissory notes given in the settlement of the Wolff claim, amounting to $2,000, were delivered by Burns to Wolff, Burns retaining the sum of $1,500 in cash out of the sum of $3,000 paid in the settlement of the claim, for and as a reasonable attorney fee for services rendered Wolff in making the collection, tendering the balance of the cash received in the settlement to Wolff, who accepted it.
September 2, 1932 (after Wolff had accepted the balance of the cash tendered by Burns), a demand was made upon Burns by Wolff in the following words and figures:
"Lewiston, Idaho, September 2nd, 1932.
"Mr. Otto D. Burns, "Attorney, "Lewiston, Idaho.
"Dear Sir: —
"Whereas You were employed by the undersigned to affect a settlement of my claim against Dr. O.C. Carssow upon a contingent basis wherein you agreed to affect a settlement and retain from the same the sum of 10% of any amount of money realized or paid by the said Dr. O.C. Carssow in settlement of said claim; and
"Whereas Under and by virtue of said employment, you did, on or about the 17th day of August, 1932, affect a settlement with the said Dr. O.C. Carssow and the Insurance Company in which he was insured, and which settlement was in the sum of $5,000.00; and
"Whereas The said $5,000.00 was paid to you as follows: $3,000.00 in cash and $2,000.00 in notes, made and executed by the said Dr. Carssow, all of which were duly and regularly authorized by the undersigned; and
"Whereas You have delivered the said notes to me, aggregating in all the sum of $2,000.00, and $1,000.00, in cash, and have in addition thereto, in accordance with my instructions, paid to LeRoy LaFollette, due him for assisting you in affecting said settlement in accordance with my agreement with him; and *Page 421
"Whereas There is now due and owing by you to me the sum of $1,000.00 of said money procured by reason of said settlement, and which sum you have retained since the 17th day of August, 1932, and have refused to pay me;
"Now Therefore, DEMAND is herewith made upon you under the provisions of Section 8191 Idaho Compiled Statutes, and you are required under this demand to pay me the said sum of $1,000.00 which you still retain from the moneys collected from the said Dr. O.C. Carssow in the matter of said settlement, within twenty (20) days hereof.
"(Signed) HERMAN WOLFF."
September 27, 1932, a criminal complaint was filed in the probate court of Nez Perce county, a warrant of arrest was issued for Burns, he was arrested, given a preliminary hearing in that court and held to answer in the district court for that county on a charge of grand larceny.
December 6, 1932, an information was filed against appellant in the district court for Nez Perce county, the charging part of which is in the following words and figures:
"That the said Otto D. Burns is now and was at all times in this information mentioned, a duly qualified, licensed, acting and practicing attorney at law maintaining an office as attorney at law in the City of Lewiston, Nez Perce County, Idaho; that on or about the 15th day of January, 1932, Herman Wolff, employed the said Otto D. Burns as an attorney at law to represent him in collecting a certain claim and demand due the said Herman Wolff from one O.C. Carssow; that the said Otto D. Burns accepted said employment for the purpose of effecting a settlement and collecting said claim for the said Herman Wolff and agreed to accept ten per cent (10%) of any monies received in settlement of said claim as full compensation for his services rendered or to be rendered for the said Herman Wolff in the course of his employment as aforesaid; that the said Herman Wolff agreed to pay said Otto D. Burns ten per cent (10%) of any monies that might be realized on said claim by the said Otto D. Burns; that thereafter on or about the 17th day of August, 1932, at Lewiston, Nez Perce *Page 422
County, Idaho, a settlement was agreed upon and effected wherein and whereby the said Herman Wolff received the sum of Three Thousand Dollars ($3,000.00), in cash and promissory notes aggregating in all the sum of Two Thousand Dollars ($2,000.00), making a total settlement on said claim of Five Thousand Dollars ($5,000.00), which notes and monies were delivered to Otto D. Burns as attorney for Herman Wolff; that on the same day in Lewiston, Nez Perce County, Idaho, the said Otto D. Burns turned over and delivered to Herman Wolff the promissory notes in the sum of Two Thousand Dollars ($2,000.00) and Nine Hundred Ninety-Eight and no/100 ($998.00) Dollars in cash, and retained the sum of One Thousand Five Hundred Dollars ($1,500.00) out of said settlement in cash, and has failed, neglected and refused to pay over to the said Herman Wolff the balance due him under the terms of said employment as heretofore set forth; that the said Otto D. Burns was entitled to the sum of $500.00 by virtue of his contract of employment and for services rendered and that One Thousand Dollars ($1,000.00) of the One Thousand Five Hundred Dollars ($1,500.00) retained by the said Otto D. Burns is due and owing to the said Herman Wolff under the terms of said contract of employment.
"That on or about the 17th day of August, 1932, the said Herman Wolff orally made demand upon the said Otto D. Burns for all monies due the said Herman Wolff under the terms and conditions of said contract of employment and that thereafter on the 2nd day of September, 1932, the said Herman Wolff, in writing, made and served a demand upon the said Otto D. Burns under the provisions of Section 8191 of the Idaho Compiled Statutes for the payment of said One Thousand Dollars ($1,000.00) collected as aforesaid; that the said Otto D. Burns unlawfully, feloniously, knowingly and intentionally neglected and refused to pay over said money due the said Herman Wolff or any part thereof, and has continued to refuse and neglect to pay over the same or any part thereof and still refuses and neglects to pay over the same or any part thereof to the said Herman *Page 423
Wolff and that more than twenty (20) days have elapsed since the said demand for the payment of said money was made upon the said Otto D. Burns contrary to the form of the statute in such case made and provided."
The information was based upon and Burns was prosecuted under sec. 17-1014, I. C. A., reading as follows:
"Refusal of attorney or collector to pay over money. — Every attorney-at-law, agent, collector or other person who collects or receives any money or property on any debt, claim or demand due to another person, and, upon demand made by said person to whom such debt, claim or demand is due, for the space of twenty days refuses or neglects to pay over said money, or deliver up said property, so received, to such person making said demand, is guilty of grand or petit larceny according to the amount of the money or value of the property so refused to be delivered over."
At the January, 1933, term of said district court, Burns was tried, convicted and sentenced to serve from one to fourteen years in the state penitentiary, and from the judgment of conviction Burns prosecuted an appeal to this court.
Numerous serious errors are assigned by appellant, the most serious of which challenges the validity of sec. 17-1014, I. C. A., upon the ground of its alleged uncertainty.
In State v. Cochrane, 51 Idaho 521, 6 P.2d 489, this court had before it a case somewhat similar, in its facts, to the case at bar. Cochrane operated a collection agency at Lewiston, Idaho. Approximately 1,155 accounts were turned over to him for collection by The Clinic, under an undisputedagreement that Cochrane was to receive fifty per cent of all moneys paid to him and twenty-five per cent of all moneys paid to The Clinic. Among those accounts was one against William L. Pemberton for $240.00, which was paid by Pemberton to Cochrane. After collection, Cochrane paid The Clinic the sum of ten dollars of the amount collected from Pemberton. The Clinic demanded payment of the sum of $110, the sum it claimed to be due it. Cochrane failed to pay the balance within the time and as demanded. He was arrested, tried and convicted of grand larceny, and the judgment *Page 424
of conviction was affirmed by this court in State v. Cochrane,supra. A careful examination of the facts in the Cochrane case and the facts in the case at bar discloses a very substantial difference, in two important particulars, in this: First: In a written statement to The Clinic Cochrane stated that the amount due it was $115, which was an express acknowledgment that he had at least the sum of $115 in his possession which belongedto and was the property of The Clinic. And secondly: There wasno dispute between Cochrane and The Clinic concerning theterms and conditions of the contract of employment. Cochrane sought to justify his refusal to pay the demanded moneys over to The Clinic upon the claim that there had been no accounting between the parties concerning commissions he claimed to be due him from The Clinic. And upon the hearing of the Cochrane appeal in this court, he did not challenge the validity of section 17-1014, I. C. A., upon the ground that that statute is void for uncertainty. Therefore, and for the first time, this court has the duty to determine whether the statute is, or is not, void for uncertainty.
The statute in question provides that "every attorney . . . . who collects or receives any money . . . . on any debt, claim or demand due to another person, and upon demand made by said person to whom such debt, claim or demand is due, for the space of twenty days refuses or neglects to pay over said money . . . . to such person making said demand, is guilty of grand or petit larceny according to the amount of the money . . . . so refused to be turned over."
An analysis of this statute discloses that it is subject to a number of different constructions, among others, the following: 1. That any attorney who receives a claim for collection from another, and collects the claim, must, upon demand of the claimant, within twenty days from and after the date of the demand, "pay over said money," that is to say, the full amount collected, with no deduction for services or expenses in making the collection, "to such person making said demand," to wit, the claimant. Or 2. That any *Page 425
attorney who receives a claim from another for collection, and collects the claim, must, upon demand of the claimant, within twenty days from and after the date of the demand, pay the claimant the full amount collected, less the amount of the attorney fee agreed upon, and costs and expenses, if any, in making the collection. Or 3. That any attorney who receives a claim for collection from another, and collects the claim, must, where there is no express contract of employment, upon demand of the claimant, within twenty days from and after the date of the demand, pay the claimant the full amount collected, less costs and expenses and whatever sum the claimant considers a reasonable attorney fee for the service rendered by the attorney in making the collection. Or 4. That any attorney who receives a claim for collection from another, and collects the claim, must, even where a contract of employment has been made, and an honest dispute has arisen as to its terms and conditions concerning compensation for services and costs and expenses in making the collection, within twenty days from after the date of the demand, pay the claimant whatever balance he claims to be due to him according to his recollection of the terms and conditions of the contract of employment, touching compensation and costs and expenses.
And under a literal construction of the statute, an attorney who, for example, makes a collection of $500 for another, either refuses or neglects, upon demand, to pay that exact amount over to his client, within twenty days after the demand, is guilty of grand larceny. The statute does not even confer upon an attorney the right to contract concerning either compensation for or costs expended in making a collection, and if an attorney makes a deduction from a collection to cover compensation or costs or expenses, he is guilty of grand or petit larceny, depending upon the amount deducted. And if the right to contract for compensation or costs or expenses in making a collection exists, it must be read into the statute, which cannot be done, for obvious reasons. Thus the statute, literally construed, makes a crime of the perfectly innocent act of making a deduction for *Page 426
actual costs expended and compensation earned on account of time given and labor performed in making a collection.
It will be conceded that an attorney who makes a collection, and then either refuses or neglects to promptly pay over to his client the balance the client is entitled to receive, after deducting the actual costs and expense of collection, and the amount agreed upon as an attorney fee, where a contract has been made by the parties covering compensation for services in making the collection, is guilty of the most reprehensible conduct, but it is unreasonable to believe that the legislature intended to make it unlawful for an attorney to refuse to pay over the entire amount collected, upon demand of his client, without right to deduct actual costs and expenses, and in the event of a dispute or misunderstanding as to the terms and conditions of the contract of employment, if any, it is also unbelievable that the legislature intended to deny to an attorney the right to have any such dispute adjudicated in a civil action, without being subjected to a criminal prosecution on a charge of grand or petit larceny, depending upon the amount involved.
An act of the legislature creating a statutory offense should define the acts necessary to constitute such offense with such certainty that a person may determine whether or not he has violated the law at the time he does the act, which is charged to be a violation thereof. And the accused has a right to be informed, in all criminal prosecutions, not only by the law, but as well as by the information, what acts and conduct are prohibited and made punishable.
It is difficult, if not impossible, to determine with any certainty just what an attorney employed to make a collection, may lawfully do under the statute in question, and equally impossible to determine just what it is unlawful for an attorney to do. The most scrupulous lawyer, or collector, could easily be trapped in the net of uncertainties present in the statute. The liberty of the citizen cannot be so imperiled.
The information in the instant case reflects the uncertainty of the statute, among other things, in this: That it *Page 427
reads very much like a civil complaint for the recovery of a balance in the sum of $1,000 claimed to be due to Wolff from appellant Burns, but instead of praying for judgment for that amount, it seeks a conviction of the appellant upon a charge of grand larceny.
A few cases illustrating the principles discussed and applied to the case at bar are: Czarra v. Board of Medical Supervisors,25 App. D.C. 443, 450; State v. Parker, 183 Minn. 588,237 N.W. 409; Ex parte Bales, 42 Okl. Cr. 28, 274 P. 485; State v.Lantz, 90 W. Va. 738, 111 S.E. 766, 26 A.L.R. 694; UnitedStates v. Capital Traction Co., 34 App. D.C. 592, 598; Ex parteJackson, 45 Ark. 158, 164; State v. Diamond, 27 N.M. 477,202 P. 988, 992, 20 A.L.R. 1527.
We conclude that sec. 17-1014, I. C. A., is void for uncertainty. Accordingly, the judgment of conviction is reversed and the cause remanded, with instructions to the trial court to enter judgment exoneretur, discharge the appellant and dismiss the action.
Wernette, J., and Hunt, D.J., concur.
Givens, J., dissents.
Budge, C.J., took no part in the decision. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3861830/ | Argued October 3, 1930.
On the 11th day of April, 1928, the plaintiff presented his petition to the Court of Common Pleas of Erie County asking for the appointment of viewers to fix and determine the damages to the leasehold which he held in said city, resulting from a change of grade of the street on which the property in which the petitioner had a leasehold abutted. The matter arose through an ordinance of the City of Erie, under a contract between the said city and the Pennsylvania Railroad Company and the New York Central Railroad Company providing for the elimination of a certain grade crossing.
The viewers were appointed. On April 27, 1928, the City of Erie presented a petition to the court for the vacation of the appointment of viewers, alleging that the court had no jurisdiction; that the matter in the first instance was one for the Public Service Commission and that there was no authority for the appointment of the viewers. A rule to show cause was granted and on May 3, 1928, the court made the rule absolute without prejudice.
More than two years thereafter, on June 19, 1930, the court below entered the following order: "The order of May 3, 1928, is amended to read as follows: The rule, therefore, granted April 30, 1928, to show cause why the appointment of viewers should not be vacated is now, June 19, 1930, made absolute and the proceedings dismissed, without prejudice."
We are all of the opinion that the order first made *Page 134
was a final order and that the present appeal is too late. The petition to vacate was directed to the want of jurisdiction on the part of the court to appoint the viewers. The matter involved was definitely decided by the court and ended the proceedings. The subsequent order made, as we have already observed, more than two years thereafter changed nothing.
The appeal is quashed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1770740/ | 520 So. 2d 377 (1988)
STATE of Louisiana ex rel. Michael NICHOLAS
v.
STATE of Louisiana.
No. 86-KH-1753.
Supreme Court of Louisiana.
February 29, 1988.
*378 Francis Jones, Loyola Law Clinic, for applicant.
William J. Guste, Jr., Atty. Gen., Harry F. Connick, Dist. Atty., Brian Treacy, Asst. Dist. Atty., for respondent.
DENNIS, Justice.
The issues presented by this case are (1) whether the evidence was sufficient to justify a finding beyond a reasonable doubt of forgery by false making, (2) whether the trial court unconstitutionally deprived the defendant of his right to confront and cross-examine the witnesses against him as to forgery by false issuing, and (3) whether the state, which did not petition for review, may urge in support of defendant's conviction of forgery the evidence of false issuing appearing in the record, although this may involve an attack on the reasoning of the court of appeal or an insistence on matter overlooked or ignored by it.
Defendant, Michael Nicholas, was convicted by a jury of two counts of forgery, La.R.S. 14:72, adjudicated a quadruple offender, La.R.S. 15:529.1, and sentenced to serve forty years at hard labor. On appeal, the court of appeal reversed one forgery conviction because a defendant may not be convicted and punished twice cumulatively for the fabrication and transfer of a single false writing. State v. Smith, 475 So. 2d 331 (La.1985). Although the court of appeal affirmed the defendant's remaining conviction, it found the sentence to be excessive, vacated the sentence, and remanded the case for resentencing. The court of appeal rejected defendant's arguments that the trial court's rulings preventing his cross-examination of prosecution witnesses was reversible error. State v. Nicholas, 491 So. 2d 711 (La.App. 4th Cir.1986). This court granted certiorari in response to defendant's petition. The state did not apply.
Facts
A number of checks were stolen from Clearview Dodge, an automobile dealership, between December 9, 1983 and December 12, 1983. The defendant, who was an employee of Clearview Dodge until December 15, 1983, cashed one of these checks at the Paris Avenue Bar and Lounge in New Orleans on December 12, 1983. The check was made payable to "Michael Nicholls" in the amount of $550.00 and signed by "James P. Goulld" and "Bobby Shaw." Nicholas, who was well known to the owner of the bar, Noland Biagas, endorsed the check in the owner's presence. After paying Nicholas for the check, Biagas deposited the check into his bank account. Shortly thereafter, he was notified by the bank that the check was "not cashable." He then informed Clearview Dodge of the problem with its check. Clearview Dodge's manager in turn contacted the forgery division of the New Orleans Police Department. During the investigation of the matter, Biagas identified the defendant from a photographic lineup as the person who cashed the check on December 12, 1983.
*379 Kirk Tracy, the Vice-President and General Manager of Clearview Dodge, testified as to the theft of the dealership's checks and that the defendant was employed by the dealership until December 15, 1983. He also said that the amount of the check in question was not printed by the dealership check machine and that neither of the two signatures belonged to anyone associated with the dealership.
Bobbie Lindsey, the Secretary and Treasurer of Clearview Dodge, testified that she was in charge of the payroll at the dealership, that the last check drawn for Michael Nicholas was on January 6, 1984 in the amount of $30.34 and that, except for the $30.34, there was no outstanding payment due the defendant on December 12, 1983. She additionally testified that the only persons authorized to sign the dealership checks were herself, Mr. Kirk Tracy, Mr. David Tracy and Mr. Stubbs. She also said that the two signatures on the check in question were not those of authorized signers and that she had never heard of a Mr. Goulld or Shaw.
Officer James Dupuy, a handwriting expert with the New Orleans Police Department, testified that in his opinion the endorsement on the back of the check definitely matched the defendant's handwriting exemplar taken after his arrest, but that he could not express an opinion as to who had written the two signatures on the front of the check. On cross-examination, he additionally testified that the two signatures on the front of the check could have been made by someone other than Michael Nicholas.
False Making
The evidence is constitutionally insufficient to support a conviction of forgery by false making. In order to prove the forgery ground of false making the state must demonstrate defendant's guilt of "false making or altering, with intent to defraud, of any signature to, or any part of, any writing purporting to have legal efficiacy." La.R.S. 14:72 (para. 1). There was no evidence that the defendant falsely made or altered any signature or part of the check in question. The defendant affixed his own signature as his endorsement of the instrument. While this might be part of a forgery by false issuing, it does not constitute a false making or altering of a signature or part of a writing.
False Issuing
Although the evidence is constitutionally sufficient to support a conviction of forgery by false issuing, we conclude that the district court committed trial error by preventing the defendant from exercising his right to confront and cross-examine two of the prosecution witnesses, Kirk Tracy and Bobbie Lindsey, as to evidence tending to show whether defendant had intent to defraud or knowledge of forgery when he endorsed and issued the check. In order to prove forgery by false issuing, the state must show that defendant was guilty of "[i]ssuing or transferring, with intent to defraud, a forged writing, known by the offender to be a forged writing...." La. R.S. 14:72 (para. 2). The prosecution presented cogent evidence that the check in question was stolen from the automobile dealership while defendant was its employee, that the signatures of the makers did not belong to any employee of the dealership and that the dealership owed defendant only $30.34 at the time he endorsed and transferred the $550 check. In cross-examining the prosecution witnesses, defense counsel sought to overcome this evidence of defendant's intent to defraud and knowledge of forgery by asking such questions as whether the company ever paid its employees bonuses, whether defendant was owed a bonus, what were the company's methods and times of remunerating car salesmen, how many cars the defendant had sold in December, whether the company owed defendant any additional money, whether defendant had put up a deposit on a demonstrator which was due to be repaid to him, what were the company's procedures regarding employees' use of demonstrators, and what were the circumstances under which the dealership recovered the demonstrator automobile which had been assigned to defendant. In each instance the trial court sustained the prosecutor's objection to the question. With respect to *380 virtually every question, the prosecutor failed to state any grounds for his objection and the court failed to give any reason for its ruling. The trial court's rulings constituted error and misuse of discretion.
For two centuries Anglo-American judges and lawyers have regarded the opportunity of cross-examination as an essential safeguard of the accuracy and completeness of testimony, and they have insisted that the opportunity is a right and not a mere privilege. McCormick, On Evidence, § 19, at 47 (3rd ed. 1984); 5 J. Wigmore, Evidence, § 1367, at 32 (Chadbourn rev. ed. 1974).
The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." This right is secured for defendants in state as well as federal criminal proceedings. Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 1069, 13 L. Ed. 2d 923, 928 (1965). The confrontation clause of our state constitution directly affords each accused the right "to confront and cross-examine the witness against him, ..." La. Const. art. 1, § 16.
Confrontation means more than being allowed to confront the witnesses. Our state constitution expressly guarantees a defendant the right to cross-examine adverse witnesses. Id. The U.S. Supreme Court cases construing the Sixth Amendment's confrontation clause hold that a primary interest secured by it is the right of cross-examination. Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347, 353 (1974) (citing Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 1076, 13 L. Ed. 2d 934, 937 (1965)). Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject to the discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness's story to test the witness's perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness. Davis v. Alaska, supra, 415 U.S. at 316, 94 S.Ct. at 1110, 39 L.Ed.2d at 353; State v. Nash, 475 So. 2d 752, 754-755 (La.1985); State v. Hillard, 398 So. 2d 1057, 1059-1060 (La. 1981); State v. Toledano, 391 So. 2d 817, 820 (La.1980).
The three main functions of cross-examination are: (1) to shed light on the credibility of the direct testimony; (2) to bring out additional facts related to those elicited on direct; and (3) to bring out additional facts which tend to elucidate any issue in the case. McCormick, supra, § 29, at 63; See La.R.S. 15:280; Proposed Louisiana Code of Evidence, art. 611(B) and the comments thereto. See also Davis v. Alaska, supra, 415 U.S. at 415-417, 94 S.Ct. at 1110-1111, 39 L.Ed.2d at 353-354; State v. Nash, supra.
Defense counsel's questions were reasonably calculated to serve all of the main functions of cross-examination. First, the cross-examination was reasonably calculated to bring out additional facts related to those elicited on direct and to other issues in the case. Each question was designed to elicit relevant evidence, namely, evidence having a tendency to make the material fact of intent to defraud or knowledge of forgery more or less probable than it would have been without the evidence.
Second, the cross-examination was reasonably designed to shed light on the credibility of the state's witnesses. Generally, a party, to attack the credibility of a witness, may examine him concerning any matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony. State v. McClinton, 399 So. 2d 178, 181 (La.1981); State v. Weathers, 320 So. 2d 895, 898 (La.1975); see, e.g., Proposed Louisiana Code of Evidence art. 607. One of the main lines of attack upon the credibility of a witness is an attack by showing a defect of capacity in the witness to observe, remember or recount the matters testified about. McCormick, supra, § 33, at 73. Here the test of relevancy is not whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness and assessing the probative value of the *381 direct testimony. McCormick, supra, § 29, at 63-64. One of the recognized approaches to questioning for this purpose is the exploratory line designed to test by experiment the ability of the witness to remember detailed facts of the nature of those he recited on direct, or his ability accurately to perceive such facts, or his willingness and capacity to tell the truth generally, without distortion or exaggeration. A rule limiting this line of questions to those relevant to the main issues would cripple the usefulness of this kind of examination. Id. Consequently, we believe that the defense counsel's cross-examination inquiry as to defendant's possible entitlement to bonuses, repayment of deposits, or other additional remuneration was proper examination on matter having a reasonable tendency to disprove the truth or accuracy of the testimony on direct examination.
Although we recognize that the trial judge should have discretionary power to control the extent of examination, the court in the present case imposed much too tight a rein on the cross-examiner and unduly curbed the usefulness of the examination. From our examination of the record we see no threat of undue prejudice to a witness, waste of time from extended exploration, or substantial harm to the complaining party that would justify such a restraint. See Alford v. U.S., 282 U.S. 687, 694, 51 S. Ct. 218, 220, 75 L. Ed. 624, 629 (1931); McCormick, supra, § 29, at 64-65. Indeed, on the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in an inquiry into totally irrelevant evidence or that the court held the particular witnesses in such high esteem that they were to be considered beyond question or reproach. Moreover, it is evident that to make any legitimate effort to bring out additional facts relevant to the case and to shed light on the witnesses' credibility, defense counsel should have been permitted to expose to the jury the facts from which the jurors, as sole triers of fact and credibility, could appropriately draw inferences relating to whether the defendant was due additional sums from the dealership or reasonably could have believed that he was. These facts were crucial to the jurors' fair and impartial determination of whether the defendant endorsed the check with intent to defraud and with knowledge of forgery.
The defendant was thus denied the right of effective cross-examination which is a constitutional error of the first magnitude. State v. Nash, supra, 475 So.2d at 755; see Davis v. Alaska, supra, 415 U.S. at 318, 94 S.Ct. at 1111, 39 L.Ed.2d at 355; Smith v. Illinois, 390 U.S. 129, 131, 88 S. Ct. 748, 749-750, 19 L. Ed. 2d 956, 958-959 (1968); Brookhart v. Janis, 384 U.S. 1, 3, 86 S. Ct. 1245, 1246, 16 L. Ed. 2d 314, 316-317 (1966). It is well established that a substantial denial of the right to cross-examine for bias or interest cannot be regarded as harmless error, for it violates a right to confrontation fundamental to a fair trial. State v. Nash, supra, 475 So.2d at 755; State v. Senegal, 316 So. 2d 124, 126-127 (La.1975); State v. Elias, 229 La. 929, 933-934, 87 So. 2d 132, 134 (1956). Further, we see no reason to believe that only cross-examination directed at bias is sufficiently important to require this constitutional protection. Cross-examination involves discrediting a witness's perceptions and memory as well as his veracity. See Davis v. Alaska, supra, 415 U.S. at 316, 94 S. Ct. 1110, 39 L.Ed.2d 353-354. Other impeachment techniques often provide more effective means of attacking credibility. For example, evidence of prior inconsistent statements is highly damaging to a witness's credibility and has been thought to produce at least as much impact on a jury as cross-examination directed at bias. McCormick, supra, § 33, at 72-73; Note, Constitutional Restraints on the Exclusion of Evidence in the Defendant's Favor: The Implications of Davis v. Alaska, 73 Mich.L. Rev. 1465, 1471 (1975). In the present case, a demonstration that the dealership owed the defendant more money, or that he reasonably could have thought it did, would have been highly effective in discrediting the direct testimony. The existence of a constitutional violation should depend not upon the category of impeachment but upon whether the defendant was prevented *382 from using any impeachment that would have been potentially effective in his case.
Attacking or Defending the Judgment of Conviction
Although the court of appeal found the evidence sufficient to support forgery convictions based on both false making and false issuing, that court affirmed "one count of defendant's forgery conviction and vacate[d] the second count of this conviction," because La.R.S. 14:72 authorizes dual prosecutions but not cumulative penalities for making and transferring a single false writing. State v. Smith, 475 So. 2d 331 (La.1985). The state did not apply for certiorari from this decision.
Defendant argues that since his conviction for false issuing has been vacated by the court of appeal, and because he is entitled to have his conviction for false making set aside for lack of sufficient evidence, this court must not only reverse the court of appeal judgment but also order the defendant discharged and released. In essence, the defendant argues that the court of appeal vacated the wrong forgery conviction, affirming the conviction based on insufficient evidence and vacating the conviction flawed only by trial error, and that the state cannot urge this court to correct the error because that would call for a modification of the court of appeal judgment, a relief the state may not now request because it failed to apply for review.
However, we believe that the defendant is mistaken as to the nature and content of the court of appeal judgment. As a general rule, the decisions, opinions or findings of a court, do not constitute a judgment or decree, but merely form the basis or reasoning upon which the judgment is rendered. Fisher v. Rollins, 231 La. 252, 260, 91 So. 2d 28, 31 (1956); Delahoussaye v. D.M. Glazer & Co., Inc., 182 So. 146, 147 (La.App. 1st Cir.1938), modified on rehearing, 185 So. 644 (La.App. 1st Cir.1939); State v. Fleshman, 399 S.W.2d 56, 58 (Mo.1966); 49 C.J.S., Judgments, § 4, at 28 (1947); Calvert, Appellate Court Judgments or Strange Things Happen on the Way to Judgment, 6 Texas Tech L.Rev. 915, 920-921 (1975). Consequently, whether the defendant's forgery conviction should rest on the ground of false making rather than false issuing was merely part of the court of appeal's reasoning or basis for its judgment. The decree or judgment of the court of appeal was simply that the defendant shall be convicted of one count or conviction of forgery.
The state may properly argue in this court that we should take cognizance of the false issuing evidence in order to sustain the judgment of forgery conviction against total defeat under Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). It is well accepted, that without filing a cross-appeal or cross-petition, an appellee or respondent may rely upon any matter appearing in the record in support of the judgment below. Hankerson v. North Carolina, 432 U.S. 233, 240 n. 6, 97 S. Ct. 2339, 2344 n. 6, 53 L. Ed. 2d 306, 313-314 n. 6 (1977); Dayton Board of Education v. Brinkman, 433 U.S. 406, 417-419, 97 S. Ct. 2766, 2774-2775, 53 L. Ed. 2d 851, 862-863 (1977); Massachusetts Mut. Life Ins. Co. v. Ludwig, 426 U.S. 479, 480-481, 96 S. Ct. 2158, 2159, 48 L. Ed. 2d 784, 786-787 (1976); Roger v. Estate of Moulton, 513 So. 2d 1126, 1135-1137 (La. 1987); R. Stern, E. Gressman & S. Shapiro, Supreme Court Practice, § 6.35, at pp. 382-387 (6th ed. 1986); 9 J. Moore & B. Ward, Moore's Federal Practice, § 204.11[2] (2d ed. 1987). Mr. Justice Brandeis made the classic statement of this principle in United States v. American Railway Express Co., 265 U.S. 425, 435-436, 44 S. Ct. 560, 563-564, 68 L. Ed. 1087, 1093 (1924):
[A] party who does not appeal from a final decree of the trial court cannot be heard in opposition thereto when the case is brought here by the appeal of the adverse party. In other words, the appellee may not attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below. But it is likewise settled that the appellee may, without taking a *383 cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack on the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.
See also, Roger v. Estate of Moulton, supra. We think the contentions of the state that the court of appeal chose an incorrect premise for affirming the defendant's forgery conviction fall into this category. The state does not ask us to "modify" the court of appeal judgment simply because it urges us to sustain it against total invalidity under Jackson v. Virginia, supra, on a different basis than the court of appeal adopted. See Blum v. Bacon, 457 U.S. 132, 137 n. 5, 102 S. Ct. 2355, 2359 n. 5, 72 L. Ed. 2d 728, 783 n. 5 (1982). We therefore reject the defendant's argument that the court of appeal's mistake as to the proper reason or basis for its judgment requires his complete discharge and release.
Conclusion
For the reasons assigned, the court of appeal judgment is reversed, the defendant's conviction of forgery is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED TO THE TRIAL COURT. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2726535/ | Pursuant to Ind. Appellate Rule 65(D), this Aug 21 2013, 5:30 am
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY PRO-SE:
DUSTIN TROWBRIDGE
New Castle, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DUSTIN TROWBRIDGE, )
)
Appellant-Petitioner, )
)
vs. ) No. 48A02-1205-CR-453
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-9609-CF-328
August 21, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
The appellant-petitioner Dustin Trowbridge brings this appeal, challenging the
denial of his motion to correct erroneous sentence. In that motion—and in this appeal—
Trowbridge raised a number of double jeopardy concerns with regard to sentencing,
asserting that various felony convictions should not have been enhanced beyond a certain
class of offense. Trowbridge also asserts that his convictions for burglary and
confinement were “lesser included” offenses of his murder and/or robbery convictions,
and that he should not have been convicted and sentenced on those offenses. Certain
aspects of Trowbridge’s sentencing concerns that he set forth in his motion to correct
erroneous sentence had already been litigated in a prior petition for post-conviction relief.
Moreover, we subsequently denied Trowbridge’s request to file a successive petition for
post-conviction relief.
Concluding that the trial court properly denied Trowbridge’s motion to correct his
alleged erroneous sentence, and also finding that the trial court properly vacated the
hearing on that motion, we affirm the judgment of the trial court.
FACTS
The relevant facts, as reported in Trowbridge’s direct appeal to our Supreme
Court, are as follows:
Defendant was charged with ten counts including murder, rape, robbery,
burglary, aggravated battery, criminal confinement, theft, auto theft, abuse
of a corpse, and escape. He was convicted by a jury on all counts except
escape, to which he pleaded guilty. Defendant did not challenge his
sentence or conviction on appeal; we nevertheless address the
2
appropriateness of the sentences under our constitutional authority to
review and revise sentences. See Ind. Const. art. VII, § 4.
***
We find the enhanced sentences excessive in light of Trowbridge’s age and
comparisons to the sentences of other juveniles convicted of the same or
similar crimes. We therefore reduce Trowbridge’s sentences on all counts
to the presumptive sentence (i.e., murder at fifty years; robbery and
burglary at thirty years each; aggravated battery and criminal confinement
at ten years each; escape at four years; and abuse of a corpse, theft and auto
theft at one and one-half years each). We affirm the trial court’s decisions
regarding concurrent and consecutive service of these sentences.
Trowbridge’s combined sentence is therefore reduced to a total of ninety-
seven (97) years.
Trowbridge v. State, 717 N.E.2d 138, 148, 150-51 (Ind. 1999).
Trowbridge subsequently filed an amended petition for post-conviction relief in
October 2004,1 raising various sentencing errors, which resulted in the reduction of his
robbery conviction from a class A felony to a class B felony, with the imposition of a ten-
year sentence that was ordered to run consecutively to the murder conviction.
Appellant’s App. p. 13.2
On March 20, 2012, Trowbridge filed a motion to correct erroneous sentence,
again raising sentencing errors and double jeopardy concerns that pertained to his
sentences for robbery, burglary, and confinement.
The State objected, alleging that a motion to correct a sentence is appropriate only
where a sentence is “erroneous on its face” and extraneous information or evidence is not
1
Trowbridge has not included a copy of the petition for post-conviction relief in his appendix.
2
This citation is to page 13 of the trial court’s chronological case summary. Trowbridge has not included
the post-conviction court’s findings of fact and conclusions of law in his appendix.
3
required to ascertain whether the sentence was in error. Id. at 29. As a result, the State
asserted that Trowbridge should have filed a petition for post-conviction relief. However,
the State also observed that Trowbridge, indeed, had previously filed and litigated
sentencing claims in the above-mentioned petition for post-conviction relief. Therefore,
the State maintained that all of the alleged sentencing errors in Trowbridge’s motion to
correct erroneous sentence were available for review during the initial post-conviction
proceeding.
The State further pointed out that Trowbridge had already requested this Court to
authorize a successive petition for post-conviction relief. On March 8, 2011, we
observed that “Petitioner has filed a Successive Petition for Post-conviction Relief, the
Petitioner has failed to establish a reasonable possibility that he is entitled to post-
conviction relief and accordingly, the court declines to authorize the filing of the
petition.” Appellant’s App. p. 30. We also rejected Trowbridge’s request to reconsider
the denial of his request to file a successive petition for post-conviction relief. The trial
court subsequently denied Trowbridge’s motion to correct erroneous sentence and
vacated the hearing that had been set on the motion.
Trowbridge now appeals.
DISCUSSION AND DECISION
In addressing Trowbridge’s contention that the trial court erred in denying his
motion to correct erroneous sentence, our Supreme Court has observed that such a motion
is a statutory remedy that provides prompt, direct access to an uncomplicated legal
4
process for correcting the occasional erroneous or illegal sentence. Robinson v. State,
805 N.E.2d 783, 785 (Ind. 2004). It is “appropriate only when the sentence is erroneous
on its face.” Id. at 787. This statutory remedy is not available when the claim requires
consideration of “matters outside the face of the sentencing judgment” or “proceedings
before, during or after trial.” For sentencing claims that are “not facially apparent, the
motion to correct sentence is an improper remedy”; such claims “may be raised only on
direct appeal and, where appropriate, by post-conviction proceedings.” Id.
A defendant who seeks to attack his sentence for any reason other than that the
sentence is facially invalid must include in a petition for post-conviction relief, any other
alleged defect in the entire criminal proceeding, or thereafter face a closed door to post-
conviction remedies occasioned by the doctrine of waiver. Poore v. State, 613 N.E.2d
478, 479 (Ind. Ct. App. 1993).
In this case, the trial court correctly pointed out that Trowbridge’s alleged
sentencing errors were addressed on direct appeal and in a subsequent post-conviction
proceeding. Thus, we pointed out in the March 8, 2011 order that Trowbridge failed to
establish a reasonable possibility that he was entitled to post-conviction relief. Therefore,
we rejected his request to file a successive petition for post-conviction relief. Appellant’s
App. p. 30.
In sum, because Trowbridge has failed to demonstrate that he could prevail on his
motion to correct erroneous sentence, we conclude that the trial court properly denied
Trowbridge’s motion and vacated the hearing that was originally set on that motion.
5
The judgment of the trial court is affirmed.
FRIEDLANDER, J., and VAIDIK, J., confur.
6 | 01-03-2023 | 09-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/4523861/ | 19-549-cr
United States v. Marshall
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 9th day of April, two thousand twenty.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
JOSEPH F. BIANCO,
Circuit Judge,
VICTOR A. BOLDEN,
District Judge. *
UNITED STATES OF AMERICA,
Appellee,
v. 19-549-cr
TYRONE D. MARSHALL,
Defendant-Appellant.
*
Victor A. Bolden, United States District Judge for the District of Connecticut, sitting by
designation.
1
For Defendant-Appellant: James P. Egan, Assistant Federal Public
Defender, for Lisa A. Peebles, Federal Public
Defender, Syracuse, NY.
For Appellee: Michael S. Barnett, Paul D. Silver, Assistant
United States Attorneys, for Grant C. Jaquith,
United States Attorney for the Northern
District of New York, Albany, NY.
Appeal from a judgment entered December 13, 2018 in the United States District Court
for the Northern District of New York (D’Agostino, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Tyrone D. Marshall appeals his sentence insofar as it imposed upon
him a special condition of supervised release that prohibits contact with criminal gang members.
We assume the parties’ familiarity with the underlying facts, the procedural history of the case,
and the issues on appeal.
Marshall was indicted on one count of conspiracy to distribute cocaine, in violation of 21
U.S.C. § 846, and several counts of distributing cocaine, heroin, and fentanyl, in violation of 21
U.S.C. § 841(a)(1). The parties reached an agreement whereby Marshall would plead guilty to
the conspiracy count in exchange for dismissal of the remaining counts and a recommended
sentence of 92 months’ imprisonment and six years of supervised release. The district court
ultimately imposed the agreed-upon sentence. The court also imposed several conditions of
supervised release recommended by the Pre-Sentence Report (“PSR”), including one directing
Marshall not to “associate with any member, associate or prospect of any criminal gang, club or
organization.” App’x 73, 80.
2
Marshall’s principal contention on appeal is that this condition is impermissibly vague. 1
We disagree. In reviewing the imposition of a condition of supervised release, “we review for
plain error where, as here, the defendant had advance notice of the challenged condition and
failed to object during sentencing.” United States v. Bleau, 930 F.3d 35, 39 (2d Cir. 2019) (per
curiam); United States v. Dupes, 513 F.3d 338, 343 n.2 (2d Cir. 2008) (explaining that a PSR
recommendation offers adequate advance notice of a condition to warrant plain error review if
the defendant fails to object). 2 “To establish plain error, a defendant must demonstrate: (1) error,
(2) that is plain, and (3) that affects substantial rights. If all three conditions are met, we will then
exercise our discretion to rectify this forfeited error only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Bleau, 930 F.3d at 39.
“Due process requires that the conditions of supervised release be sufficiently clear to
give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so
that he may act accordingly.” United States v. Green, 618 F.3d 120, 122 (2d Cir. 2010) (per
curiam). “A condition of supervised release is unconstitutional if it is so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its application.”
United States v. MacMillen, 544 F.3d 71, 76 (2d Cir. 2008). However, conditions need not be
clear beyond any possible dispute; “[t]hey may provide the defendant sufficient notice of what
conduct is prohibited even if they are not precise to the point of pedantry.” Id.
1
Although judgment was entered on December 13, 2018, Marshall did not file a notice of
appeal until February 26, 2019. The time limits imposed by Federal Rule of Appellate Procedure
4(b) are not jurisdictional, however, see United States v. Frias, 521 F.3d 229, 233 (2d Cir. 2008),
and the government has expressly waived any timeliness objection.
2
Unless otherwise indicated, case quotations omit all internal quotation marks,
alterations, citations, and footnotes.
3
We conclude that a person of ordinary intelligence would understand what is meant by
“criminal gang, club or organization.” In Green, we rejected a vagueness challenge against a
condition that prohibited association with members of any “criminal street gang.” 618 F.3d at
123. In doing so, we noted that the term “is cabined by a clear statutory definition that would
permit Green to comply with the condition and permit officers to consistently enforce the
condition.” Id.; see also 18 U.S.C. § 521(a) (defining “criminal street gang”). Marshall correctly
notes that there is no analogous statutory definition of “criminal gang.” However, we have never
held that a term is impermissibly vague simply because it lacks a statutory definition. Cf. United
States v. Soltero, 510 F.3d 858, 866 n.8 (9th Cir. 2007) (per curiam) (noting statutory definition
of “criminal street gang,” but finding it not “crucial” to holding that term was not
unconstitutionally vague). Here, the only reasonable understanding of the challenged condition is
that it prohibits association with groups engaged in regular criminal activity. 3 Cf. United States v.
Washington, 893 F.3d 1076, 1081 (8th Cir. 2018) (concluding that prohibition on associating
with “any gang” was unconstitutionally vague, in part because “gangs are not necessarily tied to
criminal activity”). Although he claims the condition is vague, Marshall has not suggested any
alternative interpretation. And even if he had identified some arguable ambiguity, any alleged
error was at least not plain.
We further reject Marshall’s argument that it is unclear whether the use of the adjective
“criminal” in the condition applies only to “gang” or to the entire list. Typically, “a modifier at
the beginning . . . of a series of terms modifies all the terms.” United States v. Lockhart, 749 F.3d
3
Although the condition at issue does not specify any particular mens rea, we assume, as
we did in Green, that the condition complies with “constitutionally required limitations on the
breadth of ‘association,’ including that the prohibition only limits association with gang
members known to the probationer, and excludes incidental contacts.” 618 F.3d at 123.
4
148, 152 (2d Cir. 2014), aff’d, 136 S. Ct. 958 (2016). Moreover, as a matter of common sense, it
is implausible that the district court intended to forbid Marshall from associating with any
member of any club or organization.
Finally, we reject Marshall’s contention that the condition was not reasonably necessary.
Marshall admitted to past membership in the “Sex Money Murder Gang” during an April 2017
interview with the FBI. Although Marshall subsequently denied gang membership, “[a]
condition barring contact with an organization may be substantively reasonable even if the
defendant denies membership.” United States v. Evans, 883 F.3d 1154, 1161 (9th Cir. 2018). We
cannot say that the condition is so clearly unnecessary that its imposition was plain error.
Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5 | 01-03-2023 | 04-09-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3873671/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]DECISION
Ann McMaugh has asked the Superior Court to grant her a new trial on the charge that she shot to death Gregory Dube in front of a barroom in Smithfield, Rhode Island, in the early morning hours of August 15, 1980. The salient facts at the trial were these:
Ann McMaugh and Bernard McMaugh lived together as husband and wife beginning in 1973. They were married in 1981. Their daughter Sheila was about 10 years old at the time of trial. The McMaughs, at the time in question, were living in Johnston. Ann McMaugh worked as a cashier and bookkeeper at her father's movie theater, Apple Valley Cinema, in Smithfield, generally working from 6 p.m. to 10 p.m., although she frequently stayed beyond 10 p.m. On the night in question, she was picked up about 11 p.m. by her husband and a friend, Dennis O'Keefe, in O'Keefe's car. They went to Bernard's mother's house to pick up their daughter but when they arrived, Sheila was sleeping and they decided to let her sleep over. They were then driven to their home in Johnston where Ann McMaugh changed her clothes. She and Bernard then left in their own vehicle to go to the Causeway Lounge in Smithfield about 4 or 5 miles from their home.
While there, Ann, who described herself in the pre-sentence report as a "moderate drinker", sat at the bar with her husband Bernard and another friend. After they had been at the bar about an hour, and while Bernard briefly left the bar area, Gregory Dube came over to Ann McMaugh and asked her if she were related to Michael Moran; Ann McMaugh acknowledged that Michael was her brother and she and Dube spoke briefly. When Bernard returned, he quarreled with Dube, and both stepped outside to continue their argument. The argument was loud enough to be heard by Ann inside the bar.
Bernard returned to the lounge and he and his wife left shortly afterwards, with a friend whom they dropped off before going back to their Johnston home.
At home, according to Ann McMaugh's trial testimony, she put her purse on the table, where some of the contents spilled out, went to the bathroom, came out and saw her husband Bernard leaving the house. She gathered up the spilled contents, followed her husband and asked where he was going. He said he was returning to the Causeway to resume a conversation he had been having with an old friend named Joe Foster.
On direct examination, Ann McMaugh said she went with her husband back to the lounge because Bernard had a heart condition and she "didn't want him going anywhere by himself." On direct, she also claimed that the first time she saw the two guns was when she got into the car to return to the lounge and saw them on the console of the front seat.
Again, on cross examination, Ann McMaugh reiterated that the first time she saw the guns was when she got into the car with her husband to return to the Causeway.
The guns were a .41 caliber magnum, fully loaded and a .22 caliber semi automatic pistol. Ann also testified that while in the car, she looked into her pocketbook, found an item she did not recognize, asked her husband what it was, and when he said it was an ammunition case, she put it down on the seat with the guns.
They arrived at the Causeway at about closing, parked their car and waited outside the lounge in their vehicle. Robert Croft, Jr., a friend of the victim Gregory Dube testified that he and Dube left the lounge at about 2:10 a.m. He noticed the McMaugh vehicle parked on the street with Bernard and Ann McMaugh seated inside. Dube, Croft and some other young men went across the street to play cards on the hood or trunk of a car for a few minutes, and then, as they were all leaving, Bernard McMaugh called Dube over to his car. Croft also testified that Dube and Bernard had begun arguing a few days before the shooting, because of Bernard's belief that Dube was trying "to score his wife."
Another witness to the shooting, Jeffrey Mansi, substantiated the Croft testimony, and testified that when Dube approached the McMaugh car, an argument erupted. He heard a shot, saw Dube move a bit, and within a second or two heard a second shot, after which Dube fell to the ground mortally wounded by a bullet from the .22 caliber pistol. The McMaugh vehicle then raced from the scene of the shooting. They were apprehended by the police a short distance away.
Both guns, and most of the ammo case, had been wiped clean of fingerprints. Each gun had been fired once.
Ann McMaugh chose to testify at her trial; her husband did not. Each had separate trial attorneys at their joint trial.
Ann McMaugh's version of the events is as follows. She claimed, as did Bernard in his statement to the police that Dube approached their automobile and threatened Bernard, who fired a shot from the .41 magnum to frighten Dube. Dube then reached into the open driver's window in an effort to grab Bernard or to wrestle the gun from him. Ann also testified that she picked up the .22 caliber gun and while trying to throw the gun into the back seat out of Dube's reach, the gun accidentally discharged, killing Dube. The evidence disclosed that the .22 caliber gun was fired about a foot from Dube's face.
Several firearms experts testified to issues that had previously been disclosed in discovery to petitioner and her co-defendant. A "dead weight" test on the .22 caliber gun from which the fatal bullet was shot revealed that the trigger had a pull requiring 2 1/2 to 3 pounds of pressure, and that in other tests, the .22 caliber pistol could not be accidentally discharged. The weapon could not fire unless the trigger was manually pulled.
Both McMaughs were convicted of first degree murder, conspiracy to commit murder, and carrying a pistol without a license. Bernard was also convicted of assault with a dangerous weapon. Both were sentenced to a mandatory life sentence on the murder conviction. Bernard was sentenced to a consecutive ten year term on the conspiracy charge. Ann's ten year sentence on the conspiracy charge was imposed as a concurrent sentence.
Ann McMaugh appealed her conviction to the Rhode Island Supreme Court. State v. McMaugh, 512 A.2d 824 (1986). There, she conceded that she shot the fatal bullet, 512 A.2d at 830. Her appeal principally addressed the adequacy of the evidence to support a finding that she had a conscious design and intent to kill Dube. Ann McMaugh also claimed that the trial justice erred in not dismissing the case either under then-existing Rule 48(b) of the Superior Court Rules of Criminal Procedure or pursuant to the Sixth Amendment of the United States Constitution. In rejecting her claim of lack of speedy trial, the Supreme Court noted that Ann McMaugh was responsible for part of the delay when she twice changed trial counsel during the pendency of her case.
While her appeal to the Supreme Court was pending, Ann McMaugh filed a petition for post-conviction relief under R.I.G.L. 1956, § 10-9.1-1 et seq. (1985 Reenactment), alleging ineffective assistance of counsel at her trial. That petition was filed by her attorney, not as a separate petition, but within the original case numbered P1/83-203. That petition languished until July 11, 1986, less than two weeks after her Supreme Court appeal was denied, when she filed a separate petition for post-conviction relief also claiming ineffective assistance of counsel. That petition was filemarked as Providence County Miscellaneous Petition 86-2956, the within petition for post-conviction relief. On August 18, 1986 that petition was amended in minor particulars. The primary claim remained ineffective assistance of counsel infringing upon her Fifth Amendment rights. On June 18, 1987, new counsel entered for the petitioner and on August 27, 1987 a Second Amended Application for Post-conviction Relief was filed.
This petition raised a novel issue. Ann McMaugh, while not denying that she shot and killed Gregory Dube, alleged that owing to a long history of physical and mental abuse inflicted upon her by her husband, Bernard McMaugh, she was "psychologically and otherwise incapable of communicating relevant facts regarding her memory of the events surrounding Gregory Dube's death and her state of mind at the time either to the police, to the Court, to the jury or to her lawyer at her trial on Indictment No. P1/83-203."
The claim was thus raised that by virtue of her status as a "battered woman", Ann McMaugh "was unable to assist counsel in her own defense and was therefore deprived of her right to the effective assistance of counsel." Petitioner also included claims of newly discovered evidence of an exculpatory nature, and a claim that her pretrial statements and trial testimony were coerced by her husband and were therefor involuntary and given under duress.
After briefing, and a hearing on the state's motion to dismiss, this Court concluded that there were material issues of fact necessary to a determination of the application for relief and granted a plenary evidentiary hearing.
Ann McMaugh did not testify at the hearing on her petition for post-conviction relief. A number of her former attorneys, including her trial attorney, testified at the hearing, as did her husband's trial attorney. She also presented extensive expert testimony and introduced a number of reports into evidence relating to the so-called "battered woman syndrome".
ISSUES RAISED
Ann McMaugh claims that she was the victim of long-term physical and psychological abuse inflicted upon her by her husband Bernard, abuse that increased in intensity after the shooting death of Gregory Dube, and that lasted at least throughout their joint trial.
Implicit in her pleadings, memoranda and evidence presented at her hearing is the suggestion that Bernard, not she, fired the fatal shot, and that Bernard during the period between shooting and trial, concocted a story he coerced her into presenting to the grand jury and at her trial in order to exonerate him.1
Her fallback position is that if she did indeed fire the fatal shot, she was unable, by virtue of her status as a "battered woman", to present facts which might have militated against the existence of premeditation. She suggests that a form of duress defense or even a self defense issue could have been presented at her trial had she had the capacity to communicate her status to her trial attorney. She also claimed that her husband's attorney improperly represented her when she appeared before the grand jury.
Among the issues pressed by the petitioner is whether a person who is defined as fitting within the definition of a "battered woman" is incompetent to stand trial by virtue of that status, whether evidence of such abuse constitutes newly discovered evidence sufficient to warrant a new trial, and whether she was denied her right to a fair trial and to present a defense when that defense was "fixed" by certain pre-trial testimony given by her before the grand jury and to the police which was obtained, according to her, as a result of her husband's coercion. She claims that those coerced statements were involuntary and inadmissible.
Before the taking of testimony at the post-conviction hearing, certain pre-hearing memoranda of the petitioner suggested that among the facts she would prove would be these:
— The petitioner was suffering from the "battered woman syndrome", and was therefore unable to make her own decision as to whether she should testify before the grand jury.
— That grand jury testimony was false, invented by her husband to clear only himself, and she was coerced into telling that false story, a fiction that was readily contradicted by the physical and forensic evidence in the case, leading to her conviction.
— Had she not been the victim of spousal abuse, she would have been able to testify in a manner more consistent with the physical evidence.
— She would have been able to mount a better defense which at worst would have convicted her of a lesser offense than murder.
— Because she was the victim of spousal abuse and may also have experienced a dissociative reaction after the shooting, she was unable to remember what really happened on the night that Dube was shot, and was otherwise incompetent to stand trial.
ALLOCATION OF BURDEN OF PROOF
In deciding the various issues raised by the parties, this Court has applied the rule that with respect to the burden of proof, the proponent of any issue herein was required to establish the facts relating to that issue by a preponderance of the evidence. Palmigiano v. Mullen, 119 R.I. 363, 377 A.2d 242
(1977), State v. Duggan, ___ R.I. ___, 414 A.2d 788 (1980), cf., ABA Standards for Criminal Justice, Post-conviction Remedies, Standard 22-4.6(d).
RHODE ISLAND COMPETENCY TEST
Rhode Island General Laws 1956 (1990 Reenactment) §§40.1-5.3-3(a) (2) and (3) set out the definitions of competency and of incompetency in this state and read as follows:
40.1-5.3-3. Competency to stand trial. — (a) Definitions as used in this section:
* * *
(2) "Competent" or "competency" means mental ability to stand trial. A person is mentally competent to stand trial if he or she is able to understand the character and consequences of the proceedings against him or her and is able properly to assist in his or her defense;
(3) "Incompetent" or incompetency" means mentally incompetent to stand trial. A person is mentally incompetent to stand trial if he or she is unable to understand the character and consequences of the proceedings against him or her or is unable properly to assist in his or her defense:
* * *
Rhode Island case law on this point is unambiguous. When competency is in issue, the question is whether or not the accused had the intellectual and emotional capacity to perform the functions which are essential to the fairness and accuracy of a criminal trial, whether the accused was able to understand the nature and consequences of the procedure and the charges against the accused, and whether the accused possessed or lacked sufficient mental competence to consult with counsel with a reasonable degree of rational understanding. State v. Cook,104 R.I. 442, 244 A.2d 833 (1968). Properly assisting in one's defense includes such things as participating in those aspects of a defense as an accused usually assists in, such as recounting events or furnishing names of witnesses.
Nothing in the record of this case is in the least persuasive to this Court on this point. By all accounts, including evidence of the demeanor, behavior and testimony of the petitioner at trial, the petitioner was competent in every respect to stand trial.
According to the representation made by her trial attorney in open court when the case was reached for trial, he had consulted with his client with respect to her request for a severance of her trial from that of her co-defendant husband, and, in his words, ". . . we decided that motion also should be passed. We are not going to pursue that." This act of consultation with the client, a fact specially noted by the Supreme Court in State v.McMaugh, 512 A.2d at 828, speaks directly to the issue of her ability to assist counsel.
The opinions offered by the petitioner's experts on this issue were, plainly speaking, not worthy of any weight. The reasons offered by them in support of their opinions were not sound and were heavily outweighed by other evidence in their own testimony, in her accounts to them and by the evidence adduced at her jury trial, including her behavior at trial.
It is clear from the record that the petitioner had sufficient ability at the time of trial to consult with her lawyer with a reasonable degree of rational understanding. She consulted with him on various motions, and decided with him whether to continue to press those motions or abandon them. No suggestion of any kind was ever raised by her trial attorney, an experienced defense counsel, with respect to her ability to understand the nature of the proceedings. His testimony at the post-conviction hearing on this and other issues is detailed later.
There was no evidence of irrational behavior, no demonstration of any mental or emotional disorder affecting her ability to consult, and no manifested confusion in response either to direct examination by her attorney or to searching and penetrating cross-examination by the prosecutor. She was lucid, articulate and extremely well-oriented to the proceedings at trial.
Nor did her attorney complain at time of trial that she was refusing to consult with him or that she was impaired in any way. She may have made some bad tactical choices, but that alone fails to qualify as evidence of incompetency to stand trial.
Neither the testimony of Dr. Browne or Dr. Kaiser is at all persuasive on this point. Dr. Browne testified that in her opinion, based upon a reasonable degree of scientific certainty, the petitioner was unable adequately or rationally to assist her lawyer either in the preparation of a defense or in the presentation of a defense. Remarkably, Dr. Browne arrived at this conclusion without having attended the trial, without having read the grand jury transcript of Ann McMaugh's testimony, without having read a trial transcript of Ann McMaugh's testimony, and, most startling of all, without having interviewed her trial attorney, William Dimitri. The report of Dr. Kaiser was equally flawed.
Even a cursory review of the day-long testimony of the petitioner at her jury trial is clear evidence that the defendant was, in fact, competent by all criteria used to determine competence. She understood where she was; she knew that she was on trial for murder; she knew the function of the court, the jury, the prosecutor and her own attorney. She was not disoriented or out of touch with reality; she was able to understand the questions put to her by her attorney, and to answer them sensibly and rationally. She was also skillful enough to submit to intensive cross-examination. Nothing in her demeanor during the entire trial, including her long day on the witness stand, suggested in even the remotest way that she was not competent to stand trial.
The testimony of the expert witnesses, who reached a contrary result, was thus substantially outweighed by other more credible evidence.
Dr. Bauermeister's conclusion that the petitioner suffered a failure of memory, which he thought was likely evidence that "she experienced a dissociative reaction right after the shooting with psychogenic amnesia," was equally contradicted by the weight of the more convincing evidence. His conclusion was based upon information given him by the petitioner who used a process of selective memory, in which she was able to recount in florid and meticulous detail her life of abuse at the hands of her husband, including details of events in their married life going back some ten years, then pleading failure of memory on other issues.
Nor does a claim of amnesia, or "dissociative reaction" require the conclusion that she was therefore incompetent to stand trial. Amnesia, of itself, where a defendant had the ability to construct a knowledge of what occurred from other sources, as Ann McMaugh had, where she had some memory of what occurred and where she had the ability at the trial to follow what was happening at her trial and to discuss all matters rationally with her attorney does not constitute incompetency.United States v. Wilson, 263 F. Supp. 528 (1966); Wilson v. U.S.,391 F.2d 460 (1968).
Despite this recent claim of memory lapse for certain events, the petitioner had sufficient present ability at and near the time of trial to consult with her attorney with a reasonable degree of rational understanding and clearly had a reasonably rational as well as a factual understanding of the proceedings against her.
Moreover the conclusion of dissociative reaction was belied in other portions of Dr. Bauermeister's report. Ann McMaugh, according to Dr. Bauermeister, recounted in detail the methods she claimed her husband used to reconstruct and restructure the events from the point at which they first left the bar to return home for the guns. According to the petitioner's statements to Dr. Bauermeister, and others with whom she has been treating, her husband would insist that she had to say that she did not see him get the guns because she was in the bathroom at the time and the guns were on the table when she came out. But by her own admissions to the various experts, she knew that that version was not true, and in fact reported to Dr. Bauermeister that she contradicted her husband's version.
At her jury trial, at which Ann McMaugh freely made the decision to take the stand, she testified that she never saw the guns until she got into the car to return to the lounge with her husband and saw them on the console.
THE DEFENSE OF DURESS AND NEWLY DISCOVERED EVIDENCE
The law assumes that every defendant's actions were free from duress absent evidence to the contrary. The actions in question were those acts that resulted in Ann McMaugh shooting Gregory Dube. It is insufficient for an accused to show that, generally, he or she was subjected to various forms of physical and/or psychological abuse at the hands of the accused's captors. The defense of duress requires the person raising it to show that the actions relating to the crime, or the commission of the crime itself, flowed from and resulted from the intimidation of the captor. It is illogical to suggest, as petitioner here does, without any supporting facts, that because she was the victim of spousal abuse, discovered long after trial, she could have ipso facto raised the defense of duress to the murder charge. There was no evidence at all that Ann McMaugh at the times in question was the victim of coercion by Bernard McMaugh which was so immediate and of such a nature as to induce in her a well-grounded apprehension of death or serious bodily injury if she did not shoot Gregory Dube, or accompany her husband back to the Causeway Lounge.
At oral argument on the motion to dismiss, prior to the post-conviction hearing, the petitioner's counsel made a vigorous argument in support of proceeding to the evidentiary phase of the case when he urged that the most critical potential defense available to Ann McMaugh related to the issue of why Ann returned with her husband to the bar, knowing how violent he was. It was this failure to explain, according to her present counsel, that probably led the jury to conclude that husband and wife together set out to execute Gregory Dube. He suggested that a hearing would disclose that only if she went back to the bar with him could she avoid being beaten. That assertion was never supported by evidence at the post-conviction hearing. Indeed the record is totally devoid of evidence that Ann McMaugh was in fear of physical violence at that time and that she went back to the bar with her husband for fear of being beaten by him. Though petitioner has claimed that duress is relevant to the issue of malice, and that duress is a species of fear that can reduce first degree murder to manslaughter, the facts presented never supported those assertions.
United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977) in a footnote at 563 F.2d 1335, sets out the traditional rule on duress:
"A defendant who, without opportunity to escape, has a well grounded fear of imminent death or serious bodily injury unless he complies with his captor's wrongful commands entertains a mental state recognized as exculpatory with respect to most crimes. Compulsion or duress producing this state of mind is a defense to most criminal accusations."
In United States v. McClain, 531 F.2d 431 (9th Cir. 1976) the Ninth Circuit, noting that coercion by a third party can be a defense, underscored however that such coercion "requires more than threats." 531 F.2d at 438. Indeed, "the threat must be of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done". United Statesv. Gordon, 526 F.2d 406, 407 (9th Cir. 1975). In addition to a showing that the fear was well-grounded, it must be shown that there was no reasonable opportunity to escape.
This Court has approached the issue of duress and coercion recognizing that once some evidence raises such an issue, it is incumbent upon the State to prove the lack of duress and coercion and to establish beyond a reasonable doubt that the defendant was not acting under compulsion, as it also must when some evidence of insanity or of self-defense, is placed upon the record, in which case it is the burden of the state to prove legal sanity beyond a reasonable doubt, or that the act was not done in lawful self-defense beyond a reasonable doubt, as in the case of any essential element of the charged crime.
Testimony at the post-conviction hearing fell lamentably short of presenting any facts sufficient to raise the defense of coercion or duress or any fact relevant to the absence of malice. While it is true that the experts at the post-conviction hearing testified that the petitioner in her sessions with them painted an elaborate and richly detailed portrait of a very troubled marital life, there is a total absence of evidence that the petitioner believed that she would have been seriously hurt or killed if she did not shoot Dube, or even that she would have been seriously hurt if she did not accompany her husband back to the bar to confront Dube. There was furthermore no evidence that such fear, if it existed, was well grounded and that there was no reasonable opportunity for her to escape.
This Court must take note of the fact that the petitioner did not testify at the post-conviction hearing. While no evidentiary inference against her will be drawn by this Court, such failure did remove any opportunity she may have had to establish facts sufficient to show that she was coerced.
In determining whether the evidence labeled newly discovered has the potential for a different verdict, this Court has reviewed the entire trial transcript. That review convincingly demonstrates that there was substantial credible evidence, quite apart from the testimony of Ann McMaugh, to warrant her conviction for the crime of murder. Eyewitnesses testified to the dispute between the McMaughs and Dube earlier in the evening at the bar. They also testified that they saw the McMaughs sitting outside the bar after closing, that Dube was called over to the car, that two shots were fired, one of them killing Dube almost instantly. After the McMaughs fled the scene and were arrested while driving away, two guns, wiped clear of fingerprints and an ammunition case, partially wiped clear of fingerprints were found in the car. The guns were a .41 caliber Magnum and a .22 caliber semi-automatic. Each gun had been fired once. The real issue was whether or not Ann McMaugh and Bernard McMaugh were equally culpable in Dube's death. The jury concluded on sound, credible evidence that his murder was effected by a pas de deux.
In addressing this issue, reference must be made to the testimony presented by the petitioner in support of her claim made through her witnesses that she was not only abused and coerced by her husband, but that he exerted an almost Svengali-like influence on her that has persisted virtually to the present time, and that she was thus unable to make her own choices and decisions.
While Ann McMaugh was incarcerated and awaiting a hearing on her appeal from her conviction by the jury for the murder of Dube, she conferred with attorney Ira Schreiber with respect to her first post-conviction appeal. One of the associates in Mr. Schreiber's office, Sumner Stone, testified to a deteriorating relationship between Ann McMaugh and Schreiber. Stone testified at the post-conviction hearing that McMaugh would "quiz" Schreiber about her case, and would become dissatisfied with him when he would, in Stone's words, "dance around the issues". Ann McMaugh's dissatisfaction resulted in her firing Schreiber and retaining new counsel for her post-conviction issues. During this period of time, up to and including her post-conviction hearings, petitioner continued to assert to her psychiatrist, to her psychologist and to her attorneys that she was still in fear of her husband, Bernard, to whom she is still married, and who is incarcerated at the Adult Correctional Institutions.
This assertive behavior by Ann McMaugh, behavior that contradicts the portrait of a battered woman presented by Drs. Browne, Bauermeister and Kaiser, was evident even at the outset immediately after Dube's death, as well as during the time she testified before the grand jury and during her trial. That she was able to make her own choices and take matters into her own hands, free of the dominance of her husband, was clearly evident.
Immediately after the shooting, only Bernard McMaugh was arrested and charged, not Ann McMaugh. Despite the fact that she was neither arrested nor charged, she hired a noted and experienced criminal defense attorney, John F. Cicilline, to represent her. Her husband, charged with murder, had retained Joseph Capineri. From the outset, Ann McMaugh was making choices for herself. She felt entirely free, while her husband was under arrest for murder, to hire a different attorney from the one her husband had retained. She also felt free to discharge that attorney when she disagreed with his advice and to retain new trial counsel.
Her contacts with Cicilline need to be further detailed at this point.
In August of 1980, shortly after Dube's murder, and while Bernard McMaugh was being held awaiting a bail hearing, John F. Cicilline received a phone call about Ann McMaugh from a Massachusetts attorney named Crowley, with whom he later met. Cicilline later also met with Ann McMaugh and other persons, in all likelihood relatives of Ann.
This meeting occurred a few days before Bernard's scheduled District Court bail hearing wherein that court would determine whether Bernard would be held without bail pending his trial. Cicilline attended the bail hearing at which Joseph Capineri represented Bernard. The latter was released on bail. Thereafter, both Bernard and Ann would together confer with Cicilline, who throughout his representation of Ann McMaugh steadfastly maintained that Ann should not speak to the police or be a witness or go before the grand jury.
If Bernard was a batterer, he was an extremely ineffectual one as he tried over a period of nearly two years to persuade Ann to testify before the grand jury. Over the course of some ten to fifteen conferences with Ann and Bernard, Cicilline, according to his testimony, argued often and violently, that Ann ought not to say or do anything whatsoever. In Ann's presence, Cicilline told Bernard that it was an unwise course of action for her to testify. Cicilline's appraisal of Ann at that time was that she sat passively, had no real input in their conferences, merely shaking her head or saying yes at certain points. Meanwhile, plea negotiations were being conducted by Bernard's attorney in an attempt to reach an agreement under which the husband would receive a three year sentence, according to Cicilline, who also advised Bernard to "take his medicine," and do his time in jail, because he, Cicilline, did not want his client Ann to take the stand.
In 1983, Cicilline learned through published newspaper reports that his client Ann McMaugh had testified before the grand jury and had been indicted. He met again with Ann and Bernard, with whom he had another violent argument. Some time later, he learned that Ann McMaugh had fired him. She had hired William Dimitri.
Mr. Cicilline's initial interviews were with Ann McMaugh alone, while Bernard was at the Adult Correctional Institutions awaiting his bail hearing. At some of those interviews, Attorney Crowley and family members were present. The so-called "accident" version of the events seemed to have surfaced early in their conferences, although Cicilline was not certain when he first heard the version that included the gun being tossed into the back seat of the car. Whenever he spoke to Ann by telephone, he always asked her to come in alone, but after Bernard's release from jail, Bernard accompanied Ann to Cicilline's office. He testified that he would ask Bernard to leave, but Bernard would counter with an accusation that Cicilline was trying to separate them. Bernard would then, according to Cicilline say "we're in this together, right, Ann?", and Ann would answer yes. Cicilline felt that they were really seeing him to get his approval for her to go to the police. He felt that her story was illogical, and insisted she not go to the police.
When the attorney-client relationship further deteriorated, he felt that Ann no longer trusted him, and in fact she accused him of having other interests. "We didn't get along" was his characterization of their attorney-client relationship.
In the meantime, Crowley would telephone Cicilline at the latter's home, saying that the McMaughs were thinking of going to the police. The source of Crowley's knowledge was Ann McMaugh's family, or Ann herself. Cicilline would then call Ann McMaugh and tell her not to go to the police, but to come in to see him.
Cicilline also testified that Ann McMaugh never exhibited fear in his presence, that Bernard was never violent to her in his presence, that her behavior never changed, and that Ann did not indicate that she had a loss of memory. Ultimately, Ann McMaugh chose to testify before the grand jury.
The petitioner claims that she was subjected to extreme pressure by her husband, both mental and physical pressure, to tell a story before the grand jury that would take him off the hook. But the record is replete with references to Bernard's attorney, Joseph Capineri, frequently beseeching Cicilline to convince Ann to testify before the grand jury. This, of course, flies in the face of Ann's subsequent claims that she went to the police and the grand jury because she was subjected to intense abuse by Bernard. It is hardly logical or consistent for a husband who is given to the demonic behavior latterly ascribed to him by Ann to have to resort to his attorney speaking to his wife's attorney to get her to do his bidding. Abusing husbands are not known to use interlocutors.
With respect to the conclusion by the experts that the petitioner was a victim of spousal abuse who exhibited the "battered woman syndrome", certain contradictions to that finding, in addition to those already cited, must be noted.
Even evidence that is on its face apparently free from contradiction and inconsistency may be rejected when that testimony contains inherent improbabilities or contradictions which either alone or in connection with other evidence shows that testimony to be wrong or false. State v. Duggan, 414 A.2d at 792, citing with approval Correia v. Norberg, ___ R.I. ___,391 A.2d 94 at 98 (1978). Such is the case here.
As the evidence disclosed, Ann McMaugh was not economically isolated by her husband, nor financially dependent upon him. She worked and earned her own money. She was not socially isolated nor kept from her family. In fact, she actually worked for her father at his movie theater. She also had outside social contacts, both with and without her husband.2
But in an effort to show the "dominance" of Bernard McMaugh over Ann McMaugh, Dr. Browne cited the seating arrangement at the defense table during trial, noting that Ann McMaugh and Bernard McMaugh were seated side by side in the middle of the table, with their respective lawyers at each end, next to his client. This, according to Dr. Browne, was additional evidence of Bernard's "dominance" and of the fact that Ann McMaugh was never alone with her attorney, even at counsel table. (Browne, Tr. 124, 125). This naive conclusion was drawn by the witness without considering the fact that the petitioner and her attorney throughout the trial were actually elbow to elbow Nor was Dr. Browne aware that mere chance may have determined seating arrangements, or that seating arrangements are sometimes the result of custom, or perhaps a trial judge's suggestion to make it easier for each defense attorney to rise and move freely around the courtroom. At the hearing, Dr. Browne admitted she did not consider those factors. She chose to see an innocuous seating arrangement as another clever ploy by a brutal and dominating Bernard McMaugh to force his wife to sit next to him so that he could continue to exert control over her.
Ann McMaugh's demeanor at trial was also the subject of speculative and unfounded conclusions by her experts, none of whom as noted earlier had sat in on the trial, or indeed had even read the transcript of her trial. These experts noted that in fairly recent conversations with unnamed family members, they described Ann McMaugh as acting "like a zombie" at her trial. While statements by family members are useful sources of information for psychiatrists and psychologists, the reliability of those statements was never tested by the experts against the backdrop of Ann McMaugh's actual behavior or — most significant — of her testimony while she was on the witness stand.
Even a cursory review of the day-long testimony of the petitioner at her jury trial is clear evidence that Ann McMaugh was very verbal and intact during both direct and cross-examination, skillfully parrying cross questioning by a seasoned prosecutor. During the course of that day, Ann McMaugh responded in appropriate ways, never displaying evidence of a person brainwashed into parroting a story concocted for her by her husband. With respect to the suggestion that Ann McMaugh was in unwilling lock-step with her husband's defense, the closing argument by her trial attorney must be referenced at this point.
During his closing argument for Ann McMaugh, defense counsel repeatedly pointed the finger of blame at Bernard McMaugh as the force majeur in the events leading up to Dube's death. He also repeatedly suggested to the jury that his client, Ann McMaugh, was a subservient and obedient wife, that she found herself at the scene of the shooting "through no doing of her own", and that she was "propelled", presumably by her husband, into a situation "beyond her control." He further argued forcefully to the jury that the hand of responsibility was Bernard's and Bernard's alone, arguing "I think you can get the impression that Ann McMaugh is the kind of person, if Bernie says `Let's go for a drink', she goes for a drink."
This strong attempt to disengage the actions and motivation of Bernard McMaugh in returning to the bar to confront Dube from the actions and motivation of Ann McMaugh, and to portray Ann as the unwilling "victim" of a domineering husband, to depict her as having no control over the events of that evening may very well have succeeded, but for the day-long tour de force accomplished by Ann McMaugh when she testified. Far from being the battered, coerced and brainwashed witness she is now portrayed as, her performance on the stand was bravura; virtuosic, self-assured and also self-defeating.
Both in her direct testimony, and more especially on cross-examination, her self-confidence and independence were evident in the substance and cadence of her responses to questions. She even turned to the trial justice at one point to ask whether she had to pick up the gun and hold it, as the prosecutor had asked her to do on cross-examination. Indeed, her insistence that she knew nothing about guns, although she was forced finally to admit that she knew how to load them, was characterized by the prosecutor in her closing as Mrs. McMaugh's "Little Miss Muffet Act". Her range of understanding, and her verbal skills, her ability to parry questions and the strong assertive manner in which she responded on cross-examination, including the speed and dexterity with which she picked up the .22 caliber semi-automatic death weapon to demonstrate a point, were all indicia of an independent minded, strong willed, intelligent, intact person, a person totally at variance with the portrait of herself she has since painted during her post-trial meetings with her mental health professionals.
So strong was her performance on the stand that the Court specifically referred to the effect of her demeanor upon the jury. (Trial tr. 754).
Ann McMaugh's trial attorney, William Dimitri, testified at the post-conviction hearing about the way he had been retained. He recalled that he received a call from Ann McMaugh, who told him that she had been indicted, that her attorney had been John F. Cicilline, that she had a conflict with her attorney and that she was seeking new counsel. When William Dimitri first saw Ann McMaugh at his office, she was accompanied by her husband. Dimitri testified that Ann McMaugh did most of the talking, principally explaining why she no longer wanted John F. Cicilline as her attorney; he had given her certain legal advice which she chose not to take, resulting in a dispute between her and Cicilline.3
Dimitri testified that during the course of preparation for trial, he discussed with her those statements she made to the police, as well as her testimony before the grand jury. Dimitri explained to her that there were "serious problems" with her grand jury testimony. He also testified that although Bernard McMaugh always accompanied Ann to his office, Bernard never interfered with his talking to her, and never led the conversation with her. Dimitri detected nothing odd about the situation. He testified that although he felt that her grand jury testimony had "locked in" a defense based upon a claim that the gun accidentally discharged, hitting Dube, as she tried to throw the gun into the back seat out of Dube's range, he felt that the forensic evidence against her was not insurmountable. He testified that he saw "nothing wrong" with her defense.
He also testified that her instructions were that a joint defense had to be conducted. Ann McMaugh, according to Dimitri, was insistent that it was a "joint thing . . . we fall together."
He further testified that the instructions from her were to drop the motion to sever; he also decided, after interviewing her, that they had no basis for moving to suppress her statements.
Dimitri testified that he was never aware that Ann McMaugh was being physically or psychologically abused by her husband and that had he been, he could have mounted a different defense. In his words, "I could have implied that she was forced to go (back to the bar with Bernard)." This, however, is precisely what he, an astute defense attorney, argued to the jury. Indeed, his well-developed trial antennae made him question whether the event happened the way she described, but, as Dimitri testified, his hands were tied because Ann McMaugh "was insistent" that the incident happened the way she described it, adding that she didn't think it would be fair for Bernard to go to jail even for a day for something she had done. Plainly, she wanted to take the stand for that reason.
It was clear to Dimitri that her obvious purpose was to exculpate Bernard. He also said that their relationship seemed amicable, that each expressed concern for the other's welfare, that he never heard or saw anything to the contrary.
Dimitri's testimony concerning Ann McMaugh's demeanor and competency is in stark contrast to the conclusions expressed by Drs. Bauermeister, Browne and Kaiser, as well as members of her family who of late have reported to Ann's doctors that she appeared to be like a "zombie", and in a "trance" during her trial.
Dimitri recalled that Ann McMaugh knew the functions of the various components of a trial, she was communicative to him, she was able to respond appropriately to his questions, she was polite, refined and verbal, and not overly talkative. He also stated, under cross-examination, that he had no reason to believe she was incompetent. Moreover, the claim that the grand jury and police statements "locked" in an improbable defense is undercut by the fact that she chose to testify at her trial.
The record in this case is barren of evidence to suggest that Ann McMaugh's husband coerced her into accompanying him back to the bar or that she was physically, emotionally or psychologically forced to shoot Gregory Dube. The so-called "campaign of physical and psychological torture" reported in the testimony of Dr. Browne had no factual relevance to the events that occurred that evening. Ann McMaugh's own reporting to her experts of what occurred that evening suggests quite a contrary conclusion. The premise adopted by the petitioner's experts that Ann McMaugh was coerced by her husband into telling a false story in order to exculpate her husband is simply unsupported by the facts. Because the experts chose to conclude that she was a "battered woman", they also assumed that Bernard's efforts at rehearsing Ann McMaugh on the so-called "accident" defense was a coercive effort to clear him. It is more probable, however, based upon Ann McMaugh's trial testimony and the forensic testimony, including Bernard's statements immediately after the shooting and the fact that both guns were wiped clean while Bernard was busy driving away from the scene of the murder, that Ann McMaugh leaned across her husband, aimed, and deliberately fired the .22 caliber semi-automatic weapon within inches of Dube's face. The bizarre rehearsals of an "accident" story could be nothing more than Bernard's inept efforts to insulate his wife from a murder charge.
The petitioner has argued that "[the] fulcrum of this claim for relief is the unanimous expert opinion that Ann McMaugh was systematically brutalized and battered for nearly a decade by her husband . . ." The petitioner also urges that the testimony of experts on battered woman's syndrome is relevant and probative on intent issues in criminal cases, citing cases from nine jurisdictions in which expert testimony on battered woman's syndrome was admitted as being relevant and probative to those issues.
None of the cited cases is precedent for a holding that such testimony is admissible in the precise circumstances here. In the cited cases, and in other jurisdictions where such testimony has been admitted, the evidence has been held to be relevant to the issue of the intent, or state of mind, of defendants who are accused of the murder of their batterers. No known reported case has considered whether such evidence is probative of any fact in issue where a battered person is accused of the murder of a stranger. The relevance of such testimony depends on whether the evidence proffered tends to prove or disprove a point provable in the case, that is to say whether the evidence has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without such evidence.
None of the evidence presented at the hearing either newly discovered or newly available has the potential for changing the verdict, or for calling for a lesser included instruction to a jury. In sum, the evidence, if believed, paints a picture of a dismal marriage and a cruel husband. But however much one may sympathize with a person who claims to be the victim of such brutality, this Court can find utterly no connection between the petitioner's claimed status as a battered woman and a defense to this charge of murder. Petitioner's status as a battered woman in the circumstances presented here is as much happenstance as is her height or the color of her hair and is totally irrelevant to the charge that she murdered not her husband batterer, but Gregory Dube, a person she barely knew.
This Court has exhaustively reviewed the trial exhibits, trial testimony, closing arguments to the jury, arguments on the motion for a new trial, decision on the motion for a new trial and the sentencing hearing, as well as the testimony, exhibits, and depositions presented at the post-conviction hearing, and concludes that there is not the faintest possibility that the evidence petitioner seeks to address and present at a new trial will give rise to a reasonable doubt as to the petitioner's guilt on any of the charges.
The petition for post-conviction relief is denied.
1 The petitioner's husband filed a motion to intervene in the post-conviction hearing. That request was denied after a hearing.
2 In addition, according to the pre-sentence report, Ann and Bernard together went to a psychologist for counselling sessions, unusual in most abusive relationships of the kind described here.
3 Despite petitioner's pre-hearing claim, there was no evidence that Capineri acted as attorney for Ann McMaugh when she appeared before the grand jury. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/45395/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 15, 2006
No. 05-12416 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20367-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRY SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 15, 2006)
Before BLACK, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Jerry Smith was convicted by a jury for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g).1 Smith appeals his conviction
and sentence, arguing that the district court erred by: (1) denying his motion to
suppress physical evidence allegedly obtained in violation of the Fourth
Amendment; (2) not allowing him to call a state’s attorney as a witness to testify as
to why the state decided not to prosecute him; (3) denying his motions for
judgment of acquittal; and (4) sentencing him as an Armed Career Criminal. For
the reasons that follow, we affirm.
I. Background
At the hearing on Smith’s motion to suppress, testimony reflected that on
January 1, 2004, Officer Alton Martin of the Miami-Dade Police Department drove
through the parking lot of a Motel 7 when a particular car caught his attention
because it was parked directly in front of room 133 and not in an actual parking
space, and it was unoccupied, unlocked and had the windows rolled down. Martin
suspected that the car may have been stolen because, in addition to the manner in
which it was left, it had an altered, or otherwise improper, temporary license tag.
Martin went to room 133 to ascertain if anyone in that room knew the owner
of the vehicle. He knocked and announced. When Smith opened the door, Martin
detected marijuana smoke and observed a woman standing behind Smith.
1
Smith’s indictment also included a forfeiture count, though the government ultimately
dismissed that charge.
2
Martin asked Smith if he knew the owner of the vehicle parked in front of
the room, and Smith stated that it belonged to the woman standing behind him,
who confirmed that the vehicle was hers. Martin asked Smith and the woman for
their names and birth dates. Then, using his hand-held radio, Martin asked his
dispatcher to run a check on the information Smith and the woman had provided.
Martin asked Smith whether he had been smoking marijuana; Smith
admitted to having smoked marijuana and indicated that there was only a small
amount left in the room. Martin then asked if there was anything else in the room
that he should be concerned about, such as weapons, and Smith said no.
Martin’s dispatcher advised him that there was an outstanding warrant for
Smith, and Martin requested backup. Smith did not hear what the dispatcher had
said. As Martin waited for backup to arrive, Smith asked if he could use the
bathroom and put on a pair of pants. Martin allowed Smith to do so, but the officer
entered the motel room and accompanied Smith while he performed both tasks.
When Martin’s partner arrived, Martin requested that Smith come to the
doorway and asked Smith for permission to search the room, which Smith granted.
Martin searched the room, finding some marijuana and, between the mattress and
the box spring of the bed, a firearm. Martin then arrested Smith.
Martin described his conversation with Smith as “conversational” and “not
3
unpleasant.” Martin observed that Smith seemed “a little high” but did not appear
to be impaired in any way. Another police officer determined that Smith had
rented the motel room in which the marijuana and firearm had been found.
Smith filed a motion to suppress, alleging that none of the exceptions to the
warrant requirement applied to Martin’s warrantless search. Smith argued that the
evidence should be suppressed because he did not freely and voluntarily consent.
Specifically, Smith asserted that he did not provide valid consent because: (1) he
had been under the influence of marijuana; (2) Martin did not discuss the details of
the potential search, inform Smith of his right to refuse consent or provide Smith
with a written consent to search form; and (3) Smith was in custody and had not
been provided with Miranda warnings at the time Martin sought his consent.
The magistrate judge recommended that Smith’s motion to suppress be
denied because Smith was competent enough to understand what he was being
asked and to give his consent to the search, despite his use of marijuana. The
district court adopted the magistrate judge’s recommendations, finding that, in
light of the totality of the circumstances, Smith had been competent to consent to
the search and had otherwise provided valid consent.
Smith submitted his witness list for trial, indicating his intent to call an
assistant state’s attorney from the Miami-Dade County State Attorney’s office.
4
The government responded with a motion in limine asking the court to prohibit
Smith from mentioning, either in argument or testimony, that the state charges
arising from the foregoing events had been “no actioned, dismissed, or declined for
prosecution by the Office of the State Attorney.” Smith responded that the state’s
attorney’s screening of the case and the directions given by the state’s attorney to
the officer involved in the case were highly relevant to his defense. He argued that
the quality of the police investigation was a key factor in the jury’s determination
of his guilt and that the state’s attorney’s testimony would be helpful to the jury.
The district court determined that the state’s decision not to prosecute Smith was
not relevant to whether Smith possessed a firearm, that the state’s attorney’s
testimony would be inadmissible hearsay for which there was no exception under
the rules of evidence and that it would confuse and mislead the jury.
At trial, Martin provided testimony consistent with the above facts. In
addition, Favona Boston, the woman who had been with Smith in the motel room,
testified that she had lived with Smith in the room for a week or two and that
during that period she had seen Smith with a firearm. She testified that Smith
would carry the firearm to work and, upon returning home, would place the firearm
under the bed. Boston testified that Martin had been polite and courteous, that he
had not drawn his weapon, and that Smith consented to the search. Boston
5
identified the firearm seized from the motel room as that belonging to Smith.
Smith stipulated to the fact that prior to his indictment in the instant case, he
had been convicted of a felony, and he never applied for nor received a restoration
of his federal firearms privilege. An agent with the Bureau of Alcohol, Tobacco
and Firearms testified that the firearm had traveled in interstate commerce.
Smith moved for a judgment of acquittal at the close of the government’s
case, contending that the government had not proved all elements of the offense,
particularly the element of possession. Smith argued that the government had
proved neither actual nor constructive possession of the firearm. Specifically,
Smith argued that only Boston’s testimony had connected him to the firearm and
that her testimony had been impeached. The court denied Smith’s motion, finding
that there was sufficient evidence to warrant sending the case to the jury. Smith
renewed his motion for judgment of acquittal at the close of all the evidence, and
the court again denied his motion. The jury found Smith guilty.
The presentence investigation report (“PSI”) gave Smith a base offense level
of 24. As Smith qualified as an armed career criminal under 18 U.S.C. § 924(e),
however, his offense level was increased to 33 pursuant to U.S.S.G. § 4B1.4(b)(3).
Smith’s prior convictions include: (1) 1988 convictions for racketeering,
conspiracy to commit racketeering, and conspiracy to traffic in illegal drugs; (2)
6
1993 convictions for possession and sale of cocaine; and (3) 1998 convictions for
second degree murder with a firearm, armed burglary, and robbery using a firearm.
Given his criminal history category of VI and his offense level, Smith’s guideline
range was 235-293 months’ imprisonment. Among other things, Smith objected to
being classified as an armed career criminal and asserted that the PSI did not
identify which convictions were used to determine that § 924(e) applied.
At Smith’s sentencing hearing, the court indicated that the government was
relying on the three prior convictions set forth above to establish the applicability
of § 924(e). Smith did not object to the government’s reliance on the second
degree murder charge but objected to the government’s classification of the 1993
conviction as involving a serious drug offense, arguing that he had received only a
sentence of probation. Smith also objected to the government’s use of the 1988
conviction, as he had been a youthful offender at that time. The district court
found, as a matter of law, that in 1992, the sale or delivery of cocaine in Florida
was a second degree felony, punishable by a term of up to 15 years’ imprisonment
and that, therefore, Smith’s 1993 conviction was for a serious drug offense under
§ 924(e). Accordingly, the court found that Smith’s three convictions qualified
him as an armed career offender and sentenced him to 235 months’ imprisonment.
7
II. Discussion
Motion to Suppress
On appeal, Smith argues that his consent to the search was obtained through
coercion and that, therefore, the district court erred in denying his motion to
suppress. Smith contends that he was in police custody, or the equivalent of police
custody, at the time Martin requested permission to search the motel room. Smith
argues that the fact that he required the officer’s permission to use the restroom and
to put on his pants demonstrates that Smith did not feel free to terminate the
encounter. Smith further contends that during the search, he was placed in
handcuffs2 and made to wait outside of the motel room.
“The denial of a motion to suppress presents a mixed question of law and
fact.” United States v. Barbour, 70 F.3d 580, 584 (11th Cir. 1995). In determining
whether consent to search was voluntary, we defer to the district court’s findings of
fact unless clearly erroneous, and we review the court’s application of law to the
facts de novo. Id.
The Fourth Amendment protects an individual’s reasonable expectation of
privacy in his motel room. See Stoner v. California, 376 U.S. 483, 490 (1964).
Nevertheless, police may conduct a warrantless search of the motel room so long
2
Martin’s testimony at the suppression hearing indicates that Smith was not placed in
handcuffs until after Martin searched the motel room and found the firearm.
8
as the occupant voluntarily consents. United States v. Butler, 102 F.3d 1191, 1197
(11th Cir. 1997). “The question of voluntariness is one of fact to be determined
from the totality of the circumstances, and the trial court’s voluntariness
determination must not be reversed unless clearly erroneous.” United States v.
Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir. 2002) (quotation and citation
omitted). To determine whether consent was given voluntarily, we consider: (1)
whether the defendant was free to leave; (2) whether coercive police procedures
were employed; (3) the extent of the defendant’s cooperation or awareness of a
right to refuse consent; (4) whether the defendant could refuse to consent; (5) the
extent of the defendant’s education and intelligence; and (6) the defendant’s belief
that no incriminating evidence would be found. Id.
The fact of custody does not necessarily vitiate the defendant’s valid consent
to a search. See United States v. Jones, 475 F.2d 723, 730 (5th Cir. 1973).3
Because “[i]n any arrest there is present a degree of duress, . . . [t]he question is
whether the officers used coercive tactics or took unlawful advantage of the arrest
situation to obtain consent.” Id. “[T]he absence of intimidation, threats, abuse
(physical or psychological), or other coercion is a circumstance weighing in favor
of upholding what appears to be a voluntary consent.” Id.
3
In Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981.
9
The record indicates that Martin did not attempt to coerce or intimidate
Smith into consenting to the search. On the contrary, Martin and Smith’s
interaction appears to have been polite and cooperative. Nor did Martin
misrepresent the situation to Smith. Moreover, Smith appears to have understood
what was happening; it does not appear that he was impaired during the encounter.
Finally, Smith was not asked to step outside the motel room or to sit in the patrol
car until after he had consented to the search. Thus, in light of the totality of the
circumstances, the district court did not err in denying Smith’s motion to suppress.
State’s Attorney as Witness
Smith next argues that the district erred by prohibiting him from calling a
state’s attorney as a witness because that prevented him from presenting the
defense of his choice. Smith contends that the state’s attorney’s testimony may
have been relevant depending on the reason the state chose not to prosecute him.
We review evidentiary decisions for an abuse of discretion. United States v.
Brown, 415 F.3d 1257, 1264-65 (11th Cir. 2005), cert. denied, 126 S.Ct. 1570
(2006) (quotation and citation omitted).
Evidence must be relevant in order to be admissible. Fed. R. Evid. 402.
Moreover, even relevant evidence may be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
10
or misleading the jury . . .” Fed. R. Evid. 403.
Here, the district court did not abuse its discretion in determining either that
the state’s attorney’s decision not to prosecute Smith was not, in itself, relevant to
the question of Smith’s guilt for the instant offense or in determining that the
state’s attorney’s testimony would have confused the issues or misled the jury.
Motions for Judgment of Acquittal
Smith argues that the district court erred in denying his motions for
judgment of acquittal because the government failed to establish that he was in
actual possession of a firearm and this court has never held that the conditions for
constructive possession are met when a firearm is found in a motel room, as
opposed to the defendant’s home.
“We review the denial of a motion for judgment of acquittal de novo.”
United States v. Peters, 403 F.3d 1263, 1268 (11th Cir. 2005). Likewise, when
such a motion challenges the sufficiency of the evidence, “we review the
sufficiency of the evidence de novo, drawing all reasonable inferences in the
Government’s favor.” Id. (quotation and citation omitted). We will uphold the
district court’s denial so long as “a reasonable fact-finder could conclude that the
evidence established the defendant’s guilt beyond a reasonable doubt.” Id.
(quotation and citation omitted). “Moreover, we are bound by the jury’s credibility
11
determinations, and by its rejection of the inferences raised by the defendant.” Id.
To establish criminal liability under 18 U.S.C. § 922(g)(1), the government
must show: (1) Smith was a convicted felon; (2) Smith knew he was in possession
of a firearm; and (3) the firearm affected or was in interstate commerce. United
States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004) (citation omitted). “The
firearm need not be on or near the defendant’s person in order to amount to
knowing possession, . . . [and] [p]ossession can be shown by circumstantial as well
as direct evidence.” Id. “In order to establish constructive possession, the
government must produce evidence showing ownership, dominion, or control over
the contraband itself or the premises. . .” United States v. Smith, 591 F.2d 1105,
1107 (5th Cir. 1979) (quotation and citation omitted).
To establish that Smith knowingly possessed the firearm, the government
presented the testimony of both Chiahsin Chen, the owner of the Motel 7, and
Boston. Chen testified that Smith was the registered occupant of the motel room
between October 15, 2003 and January 1, 2004. Boston testified that she lived
with Smith in the motel room for a short period, during which she saw Smith carry
a gun, which he hid under the bed while in the motel room. Boston testified that
the gun she saw Smith carrying matched that which Martin discovered in Smith’s
motel room. Although Smith questions Boston’s credibility, credibility
12
determinations are the exclusive province of the jury. United States v. Calderon,
127 F.3d 1314, 1325 (11th Cir. 1997). In light of the government’s evidence, the
district court did not err in denying Smith’s motion for judgment of acquittal
because the government presented sufficient evidence for a reasonable fact-finder
to conclude that he was guilty of the offense beyond a reasonable doubt.
Sentencing Smith as Armed Career Criminal
Finally, Smith argues that the district court erroneously sentenced him as an
armed career criminal because the government failed to establish that his cocaine
conviction was punishable by a term of at least ten years.4
We review de novo whether a conviction is a serious drug offense within the
meaning of 18 U.S.C. § 924(e). United States v. Wilkerson, 286 F.3d 1324, 1325
(11th Cir. 2002). The Armed Career Criminal Act (“ACCA”) provides that a
person who violates 18 U.S.C. § 922(g) by having three prior convictions for a
“violent felony” or “serious drug offense” shall be imprisoned for not less than 15
years. 18 U.S.C. § 924(e). The ACCA defines a serious drug offense as that
“involving manufacturing, distributing, or possessing with intent to manufacture or
4
To the extent that Smith is arguing that the district court should have submitted his prior
convictions to a jury for determination of whether they qualified him for a sentence enhancement
under ACCA, his argument is meritless. Courts may look to charging documents to make that
determination, and the charging document relating to Smith’s 1993 cocaine convictions indicates
that he committed a serious drug offense. See Taylor v. United States, 495 U.S. 575, 599 (1990)
(providing for courts’ consideration of charging documents, among other things); Shepard v.
United States, 544 U.S. 13, 16, 27 (2005) (same).
13
distribute, a controlled substance . . . for which a maximum term of imprisonment
of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).
Because Smith did not argue in the district court that the cocaine offenses
did not carry a maximum sentence of 10 years’ imprisonment or more, we review
his argument for plain error, which requires an: “(1) error, (2) that is plain, and (3)
that affects substantial rights . . . [and] (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Shelton,
400 F.3d 1325, 1328-29 (11th Cir. 2005) (quotation and citations omitted).
The charging document relating to Smith’s 1993 cocaine convictions
indicates that Smith was charged with a second degree felony, carrying a
maximum term of 15 years’ imprisonment under Florida law at the time of his
conviction. Accordingly, the district court did not err in classifying the 1993
convictions as involving a serious drug offense.
For the foregoing reasons, the district court is AFFIRMED.
14 | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/45441/ | United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 3, 2006
Charles R. Fulbruge III
Clerk
No. 05-61036
Summary Calendar
KATHRYN DILEO,
Plaintiff-Appellant,
versus
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
(No. 5:04-CV-208)
--------------------
Before SMITH, WIENER and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Kathryn Dileo appeals the adverse summary
judgment of the district court. That judgment dismissed with
prejudice her Title VII1 suit in which she claimed that her
employer, the United States Department of Justice, Federal Bureau
of Prisons, had discriminated against her on the basis of her sex
when it suspended her for one day based on acknowledged misconduct.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
Title VII of the Civil Rights Act of 1964, as amended,
prohibits employers from discriminating against their employees
based upon race, color, religion, sex, or national origin. See
42 U.S.C. § 2000e-2(a)(1).
Having carefully reviewed the parties’ briefs, the applicable case
law, and the record on appeal, we affirm the district court’s grant
of summary judgment dismissing Dileo’s complaint for failure to
establish a prima facie case of discrimination.
On de novo review we conclude, as did the district court, that
Dileo failed in her effort to establish a prima facie case of sex
discrimination. She relied solely on “comparator evidence,” yet
none of the three male employees whom Dileo offered as comparables
were in fact “similarly situated.” The relevant aspects of their
employment were not “nearly identical” to hers.2 As Dileo did not
present any other evidence sufficient to raise a genuine issue of
material fact, summary judgment was proper. Based on our
determination of this threshold issue, we do not reach the other
arguments presented in the parties’ briefs.
The district court’s grant of summary judgment in favor of
Dileo’s employer is, in all respects,
AFFIRMED.
2
See Okoye v. Univ. of Texas Houston Health Sci. Ctr., 245
F.3d 507, 514 (5th Cir. 2001); Smith v. Wal-Mart Stores, 891 F.2d
1177, 1180 (5th Cir. 1990).
2 | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3870471/ | This cause is before us on complainant's appeal from the entry of a decree of the superior court denying and dismissing the bill of complaint and dissolving the preliminary injunction previously entered therein.
The bill alleges that on October 1, 1945 and for a long time prior thereto the complainant was and had been a tenant of two certain stores owned by the respondent and located at 219 and 221 Plainfield street, Providence, under a month-to-month tenancy, at a rental of $20 a month for both stores; that on October 1, 1945 the parties entered into a written lease of said premises for the period of ten years from October 1, 1945, at the rate of $20 per month payable in advance on the first business day of each month; that complainant continued to occupy the premises until February 1, 1947; and that during the month of January 1947 he entered into negotiations with respondent for the purpose of securing permission to sublet one of the two stores referred to in the written lease.
The bill further alleges that on or about February 3, 1947 the respondent orally agreed, in consideration of a monthly rental of $34 payable in advance, that he would execute and deliver a new lease of the demised premises for the balance of the term of the then existing lease, which new lease should give the privilege of subletting one of the *Page 454
two stores to a suitable tenant, with the permission of the respondent; that respondent agreed that a sublessee of the two stores as proposed by the complainant would be acceptable to him; that, in accordance with the terms of said agreement and relying upon the respondent's promise to execute a new lease, complainant proceeded to make valuable and permanent improvements to the premises by installing a plate glass window, two new front doors, two lavatories, and a partition, and by repairing and repainting certain portions of the premises, all at an expense of over $500.
The bill also alleges that respondent refuses to execute a new lease, claiming that complainant is now in default under the terms of the original lease; that he has broken his covenant in said lease; that he has forfeited the same by subletting one of the two stores without the permission in writing of respondent; and that respondent has commenced an action of trespass and ejectment, then pending in the superior court, to eject complainant from the premises, which action then stood assigned for trial in that court.
The bill prayed for the entry of a decree enjoining and restraining respondent from further prosecuting his action at law and from otherwise attempting to eject complainant from said premises and ordering and directing respondent to execute and deliver to complainant a lease of the premises in accordance with the agreement alleged in the bill of complaint.
[1] The undisputed testimony showed that no permission inwriting to sublet any portion of the leased premises was ever given under the original written lease, as required by the terms thereof. Since an oral agreement to execute and deliver the new written lease would be unenforceable by reason of the statute of frauds, the complainant sought to overcome this obstacle by showing a substantial part performance of said agreement and presented evidence tending to prove that he had made extensive alterations and improvements in the leased premises in reliance upon *Page 455
the promise and agreement of respondent to execute a new written lease as set forth in the bill of complaint.
No witnesses were present at the time of such alleged oral agreement. Upon the question as to whether that agreement was actually made, the evidence was in direct conflict. The respondent emphatically denied making such agreement and presented evidence to show that some of the repairs and alterations claimed by the complainant were never actually made; that others were made by the latter as a tenant and under the terms of his existing lease before the date of the alleged oral agreement; that secondhand fixtures and lumber were used in making replacements and repairs, some of which were made in the store used and occupied by the complainant and not by his tenant; and that the value and expense of such replacements and repairs were grossly exaggerated by complainant.
While complainant claimed that the agreement to execute the new lease was made on February 3, 1947, the new tenant testified he paid his first month's rent to complainant on January 31, 1947 and received a receipt therefor, marked as an exhibit in this cause, which reads on the date line: "Feb 1st to Feb 28-1947." The tenant further testified that after the trespass and ejectment suit had been started, complainant came into his shop and said to him: "Well, it looks like we are in trouble, have to move. * * * I have got an eviction notice and the only way we can beat that is by telling him we are in partners."
The respondent, a clergyman, who lived in Connecticut and made occasional visits to Providence, mainly to collect rents, testified that he did not know of the new tenant until he came to Providence on March 10. 1947, saw the new sign on the store, and went in and talked to the tenant. The same day he visited the office of his Providence attorney and through him started the trespass and ejectment suit on March 31, 1947.
The evidence shows that although complainant alleged that the rental under the new lease was to be $34 per *Page 456
month, payable in advance, and that this agreement was made on February 3, 1947, the rent paid by the complainant on March 3, 1947 for the month of March was not $34, but $20, as provided for under the original written lease. The trial justice, as appears from the language of his decision, specifically found that no new lease had been promised to complainant by respondent.
[2] Where the evidence is conflicting, as in this cause, the findings of fact by the trial justice sitting without a jury are entitled to great weight and will not be set aside unless they clearly fail to do justice between the parties. Preble v.Higgins, 43 R.I. 10; Simeone v. Antonelli, 52 R.I. 41;Troia v. Leone, 74 R.I. 271.
After a careful reading of the entire transcript we find nothing therein that would warrant us in saying that the decision of the trial justice is clearly wrong, and therefore we see no reason to disturb it.
The complainant's appeal is denied and dismissed, the decree appealed from is affirmed, and the cause is remanded to the superior court for further proceedings. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4523867/ | Case: 17-12410 Date Filed: 04/09/2020 Page: 1 of 29
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12410
________________________
D.C. No. 3:16-cr-00060-BJD-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MATTHEW BRIAN CANIFF,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 9, 2020)
Before, NEWSOM, MARCUS, and EBEL,∗ Circuit Judges.
PER CURIAM:
∗The Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
Case: 17-12410 Date Filed: 04/09/2020 Page: 2 of 29
Upon reconsideration, this Court sua sponte VACATES its prior opinion,
published at 916 F.3d 929 (11th Cir. 2019), and substitutes the following in its
place.
In this direct criminal appeal, Defendant Matthew Caniff challenges his
convictions for three federal child sex offenses. After careful review of the record,
and with the benefit of oral argument, we REVERSE Caniff’s conviction under 18
U.S.C. § 2251(d)(1) and AFFIRM his convictions under § 2422(b) and § 2251(a).
In doing so, we hold, among other things, that Caniff’s private, person-to-person
text messages asking an individual he thought was a minor to send him sexually
explicit pictures of herself cannot support a conviction for “mak[ing]” a “notice” to
receive child pornography in violation of 18 U.S.C. § 2251(d)(1).
I. BACKGROUND
The evidence at trial, viewed in the light most favorable to the jury’s verdict,
see United States v. Dixon, 901 F.3d 1322, 1335 (11th Cir. 2018), cert. denied sub
nom. Portela v. United States, 139 S. Ct. 854 (2019), established the following: St.
John’s County, Florida law enforcement initiated an operation to locate individuals
who have a sexual interest in children and who were willing to act on that interest.
As part of the operation, FBI Special Agent Abbigail Beccaccio posed as
“Mandy,” a thirteen-year-old girl, on “Whisper.” Whisper is an online website and
cellphone application “that allows users to text or communicate anonymously with
2
Case: 17-12410 Date Filed: 04/09/2020 Page: 3 of 29
other users.” (Aplt. Br. 3.) Whisper’s “terms of use” provide that “individuals
who use Whisper must be at least 13 years of age . . . and that if you are between
the ages of 13 and 18, that you should be supervised by a parent.” (Doc. 79 at
35-36.)
On the afternoon of March 31, 2016, Agent Beccaccio posted on Whisper a
photo of another FBI employee taken when that employee was in her early
twenties. The FBI had “age regress[ed]” that photo to make the person in it look
“more childlike and youthful.” (Id. at 37-38.) The photo showed “Mandy”
dressed in a heavy sweatshirt or coat worn over another shirt; Mandy was not
dressed or posed in any sexually suggestive manner. Agent Beccaccio posted this
picture with the words: “Spring Break! And I’m BORED!!!!!!” superimposed over
the photo. (Gov’t ex. 1.)
Caniff, a thirty-two-year-old pharmacy technician, responded, stating “Let’s
do something then,” followed by a “winky smiling face.” (Doc. 79 at 41, Gov’t ex.
2 at 1.) Mandy asked if Caniff was on spring break too; he responded that he was
“[t]otally off today.” (Doc. 79 at 42-43; Gov’t ex. 2 at 2.) Caniff wanted to “do
something water related.” (Gov’t ex. 2 at 3.) Mandy asked Caniff if he was old
enough to drive; Caniff said he was; Mandy responded: “Sweet!! I’m not old
enough too [sic].” (Id. at 4.) Caniff then asked Mandy if she had a bikini and was
3
Case: 17-12410 Date Filed: 04/09/2020 Page: 4 of 29
it cute. (Id. at 5.) Caniff soon agreed with Mandy to leave Whisper and instead
text message each other.
Caniff and Mandy exchanged text messages the rest of that afternoon and
evening. Although Mandy told Caniff several times at the outset of their text
messaging that she was thirteen years old, Caniff’s text messages to Mandy turned
sexual and eventually became quite explicit and graphic. Caniff also sent Mandy
several pictures of his penis and asked her to send him pictures of her genitalia and
of her masturbating. When Mandy asked if she could get in trouble, Caniff
responded that “[t]he only one of us the [sic] could get in trouble would be me.”
(Gov’t ex. 3 at 3.) Eventually, Mandy agreed to have sex with Caniff.
Before driving an hour and a half to meet Mandy, who said she was home
alone, Caniff asked Mandy if she was a cop. She responded, “[l]ike 13 year old
[sic] are cops!” (Id. at 14.) Caniff said Mandy “could be pretending to be 13.”
(Id.) Mandy said she was not. Mandy asked Caniff what he was bringing her; he
said he had Xanax to share with her. Fate almost intervened for Caniff when his
car broke down on his drive to Mandy. But he was able to get his car working
again and arrived at Mandy’s home at approximately 1:30 a.m. where he was
arrested.
After his arrest, Caniff consented to agents searching his computer, cell
phone and other electronic devices, as well as his vehicle. Agents found only adult
4
Case: 17-12410 Date Filed: 04/09/2020 Page: 5 of 29
pornography on Caniff’s phone, and no child pornography anywhere. Caniff also
gave agents information that would enable them to access his social media
accounts; officers found nothing incriminating there, either. There was Xanax in
Caniff’s wallet, which Caniff said he found in the trash at the pharmacy where he
worked.
After giving Caniff Miranda 1 warnings, officers interviewed him. During
that interview, Caniff acknowledged that Mandy had told him she was thirteen, but
he stated that on the Whisper “application, it says that you have to be at least 17 or
18 to download,2 so I assumed that that was the age. I thought that there was some
kind of role-playing going on.” (Gov’t ex. 27A at 5 (footnote added); see also id.
at 9-10 (“I thought we were role-playing . . . because . . . the site says that you have
to be an adult . . . , so I believe that you have to be an adult. . . . I assumed that she
was role-playing. . . . I assumed that I wasn’t meeting a juvenile.”).)
The United States charged Caniff with three offenses: 1) attempting to entice
a minor to engage in illegal sexual conduct, in violation of 18 U.S.C. § 2422(b);
2) advertising for child pornography, in violation of 18 U.S.C. § 2251(d)(1)(A) and
(2)(B); and 3) attempted production of child pornography, in violation of 18 U.S.C.
§ 2251(a). For these federal offenses, a minor is defined as “any person under the
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
As noted previously, Whisper only requires users to be thirteen years old or older. There is no
evidence about how, or if, that age restriction is enforced.
5
Case: 17-12410 Date Filed: 04/09/2020 Page: 6 of 29
age of eighteen years.” 18 U.S.C. § 2256(1). Count 1 relied on Florida law, which
defines a minor to be under sixteen years of age. These offenses required the
Government to prove, not that there was an actual child victim, but that Caniff
believed he was texting with a minor. See United States v. Rothenberg, 610 F.3d
621, 626 (11th Cir. 2010) (§ 2422(b)); United States v. Lee, 603 F.3d 904, 913
(11th Cir. 2010) (§ 2251(a)). At trial, Caniff’s primary defense was that he
believed he was, instead, communicating with an adult who was role playing as a
thirteen-year-old. The jury rejected that defense and convicted Caniff of each of
the three charged offenses. The district court imposed three concurrent fifteen-
year sentences, followed by five years’ supervised release.
II. DISCUSSION
A. Caniff’s text messages requesting that Mandy send him sexually explicit
photos cannot support an 18 U.S.C. § 2251(d)(1)(A) conviction for making a
“notice” seeking to receive child pornography
Caniff challenges his Count 2 conviction for violating 18 U.S.C.
§ 2251(d)(1)(A) and (2)(B), which provides:
(d)(1) Any person who, in a circumstance described in paragraph (2),
knowingly makes, prints, or publishes, or causes to be made, printed,
or published, any notice or advertisement seeking or offering—
(A) to receive, exchange, buy, produce, display, distribute,
or reproduce, any visual depiction, if the production of
such visual depiction involves the use of a minor engaging
in sexually explicit conduct and such visual depiction is of
such conduct;
6
Case: 17-12410 Date Filed: 04/09/2020 Page: 7 of 29
....
shall be punished as provided under subsection (e).
(2) The circumstance referred to in paragraph (1) is that—
....
(B) such notice or advertisement is transported using any
means or facility of interstate or foreign commerce or in
or affecting interstate or foreign commerce by any means
including by computer or mailed.
(Emphasis added.)
The trial court, without objection, used the statutory language to instruct the
jurors that the Government had to prove beyond a reasonable doubt, among other
elements, “that the defendant knowingly made, printed, or published or caused to
be made, printed, or published any notice or advertisement,” and “that such notice
or advertisement sought or offered to receive . . . any visual
depiction . . . that . . . involved . . . a minor child engaged in sexually explicit
conduct.” (Doc. 80 at 132-33.) The jurors deliberated for thirty minutes before
they sent the court a question, inquiring: “What is the definition of the term
‘notice’ in Count Two, or should we determine that definition?” (Id. at 144.) The
district court discussed the jury’s question with counsel and then, without
objection, responded to the jury: “You should determine the definition based upon
the instructions you have.” (Id. at 145.) The jury deliberated another half hour and
then returned a verdict convicting Caniff of Count 2, as well as the other two
7
Case: 17-12410 Date Filed: 04/09/2020 Page: 8 of 29
counts.
On appeal, Caniff contends that there was insufficient evidence for a
reasonable jury to find that the text messages he sent just to Mandy asking her to
send him sexually explicit photos of herself were a “notice or advertisement” for
purposes of § 2251(d)(1). We review that argument de novo. See Dixon, 901 F.3d
at 1335 (reviewing de novo whether evidence was sufficient to support
conviction); see also United States v. Jim, 891 F.3d 1242, 1250-51 (11th Cir. 2018)
(addressing statutory construction de novo), cert. denied, 139 S. Ct. 2637 (2019).
The parties agree that, because the statute does not define the terms “notice”
or “advertisement,” those terms must be given their ordinary or common, everyday
meanings. This is consistent with the approach taken by other circuits addressing
similar questions under § 2251(d)(1), see, e.g., United States v. Gries, 877 F.3d
255, 260 (7th Cir. 2017); United States v. Franklin, 785 F.3d 1365, 1367-68 (10th
Cir. 2015), as well as with the rules of statutory interpretation generally, see
Sebelius v. Cloer, 569 U.S. 369, 376 (2013).
We begin with what we consider to be the easier question—namely, whether
the ordinary meaning of the term “advertisement” is broad enough to encompass
Caniff’s private, person-to-person text messages. We think it clear that it isn’t.
Standard English-language dictionaries confirm what we all know to be true—that,
at least as used in modern parlance, an “advertisement” entails a public, and
8
Case: 17-12410 Date Filed: 04/09/2020 Page: 9 of 29
typically commercial, statement. Webster’s Second, for instance, defines
“advertisement” (in the only entry not marked either “[o]bs[olete]” or “[a]rchaic”)
to mean “[a] public notice, esp. in some public print, as a newspaper, periodical,
book, poster, or handbill . . . .” Webster’s Second New International Dictionary 39
(1944). Webster’s Third echoes that definition, adding only that an advertisement
is typically “paid” and may also be disseminated “over radio or television.”
Webster’s Third New International Dictionary 31 (2002). The Oxford English
Dictionary likewise defines “advertisement” (in its non-obsolete, non-archaic
sense) to mean “a public notice or announcement, now esp. one advertising goods
or services”—originally “on a placard, poster, etc., or in a journal or newspaper,”
and more recently “on a broadcast medium, [such] as radio, television, etc.”
Advertisement, Oxford English Dictionary, www.oed.com/view/Entry/2978 (last
visited March 25, 2020). In Black’s, more of the same: “[a] commercial
solicitation”—“an item of published or transmitted matter made with the intention
of attracting clients or customers.” Black’s Law Dictionary 65 (10th ed. 2009).
Caniff’s text messages to Mandy were neither public nor commercial. They were
private requests for sexually explicit material. Accordingly, they were not
“advertisement[s].”
The more difficult question, we think—and the question to which the lion’s
share of our analysis is devoted—is whether the ordinary meaning of the term
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“notice” can fairly be understood to encompass Caniff’s private, person-to-person
text messages. Dictionaries define “notice” in various ways. Some definitions
suggest that the word is broad enough to capture purely private communications.
Dictionary.com, for instance, suggests that “notice” can include targeted
communications, defining the term simply to mean “a note, placard, or the like
conveying information or a warning.” Notice, Dictionary.com,
www.dictionary.com/browse/notice (lasted visited March 25, 2020). Along the
same lines, the Seventh Circuit noted in its opinion in Gries that Webster’s Third
defines “notice” to include a “warning or intimation of something,” as does the
New Oxford American Dictionary (3d ed. 2010). 877 F.3d at 260. And in its
opinion in Franklin, the Tenth Circuit cited a host of definitions of “notice” taken
from a different version of Webster’s Third, observing that none of them required
“a public component.” 785 F.3d at 1368 (citing Webster’s Third New
International Dictionary 1544 (1993)).3
Other definitions, though, indicate that “notice” refers only to public
communications. Webster’s Second, for instance, defines “notice,” as “[a] written
or printed sign . . . communicating information or warning”—as in “to put a notice
on a door.” Webster’s Second at 1669. So too Webster’s Third: “a written or
3
In Franklin, the Tenth Circuit, nevertheless, assumed for purposes of its analysis, without
deciding, that 18 U.S.C. § 2251(d)(1)’s use of the term “notice” had a public component. 785
F.3d at 1369.
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printed announcement or bulletin”—like “insert[ing] a [notice] in the newspaper.”
Webster’s Third at 1544. And the OED: “[a] displayed sign or placard giving
news or information” (such as, for example, “notices on the bulletin board at your
grocery store, describing your product and giving a price”) or “[a] short
announcement or advertisement in a newspaper, magazine, etc.” Notice, Oxford
English Dictionary, www.oed.com/view/Entry/128591 (last visited March 25,
2020). And Black’s, as well: “[a] written or printed announcement”—as in “the
notice of sale was posted on the courthouse bulletin board.” Black’s Law
Dictionary at 1227.
In the end, these contrasting dictionary definitions serve mainly to tee up the
issue before us—namely, whether the word “notice,” as used in § 2251(d)(1),
refers only to public communications, or whether it is instead broad enough to
encompass private, person-to-person text messages between two individuals. The
definitions that we’ve cited demonstrate that either meaning is plausible. To help
to determine which (if either) of these two competing interpretations is the better
one, we turn to statutory context. See, e.g., Tyler v. Cain, 533 U.S. 656, 662
(2001) (emphasizing that courts should not “construe the meaning of statutory
terms in a vacuum”); Deal v. United States, 508 U.S. 129, 132 (1993) (observing
that the meaning of a statutory term should not be “determined in isolation,” but
instead “must be drawn from the context in which it is used”).
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Recall that, in relevant part, § 2251(d)(1) makes it a crime for anyone to
“knowingly make[], print[], or publish[], or cause[] to be made, printed, or
published, any notice or advertisement seeking or offering [child pornography].”
In mining the context, we’ll begin at the beginning—with the verb phrase “make[],
print[], or publish[].” On its own, the term “make” would seem, on balance, to
support an expansive interpretation of “notice”—one that could be read to cover
purely private communications. Black’s, for instance, defines “make” broadly as
“caus[ing] (something) to exist,” as in “to make a record.” Black’s Law Dictionary
at 1099; see also Random House College Dictionary 808 (1982) (“to write or
compose, as a poem”). Thus, as the Supreme Court has said, “[w]hen ‘make’ is
paired with a noun expressing the action of a verb, the resulting phrase is
‘approximately equivalent in sense’ to that verb.” Janus Capital Grp., Inc. v. First
Derivative Traders, 564 U.S. 135, 142 (2011) (internal quotation marks omitted).
In other words, on its face, “to make any notice” simply means “to notify”—a
phrase that ostensibly includes both public and private forms of “notice.”
For two reasons, though, we are reluctant to read the term “make[]”—and
with it the phrase “make[] . . . any notice”—for all it might possibly be worth.
First, the phrase “make[] . . . any notice” does not—at least “in [its] ordinary and
usual sense,” Caminetti v. United States, 242 U.S. 470, 485-86 (1917)—naturally
signal the private-communication variant of the word “notice.” When invoking the
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person-to-person understanding, the average speaker of American English would
typically refer to giving “notice”: a utility company might give an individual
customer “notice” that it is going to turn off the customer’s service; an employee
might give “notice” to his boss that he won’t be at work tomorrow; and a parent
might give “notice” to a child that if he doesn’t turn down his music, there will be
consequences. In none of these situations, however, would it be natural to think of
the speaker “mak[ing]” a “notice”—it would be odd, for instance, to say that a
landlord made “notice” to a tenant that he had to vacate the premises.
Second, we must contend with the words that follow “make[]”—“print[]”
and “publish[].” Both of these terms clearly denote public communication.
Webster’s Second, for instance, defines “publish” to mean “[t]o make public
announcement of” or “to make known to people in general”—or, alternatively,
“[t]o bring before the public, as for sale or distribution.” Webster’s Second at
2005. Webster’s Third similarly defines the term to mean “to declare publicly” or
to “make generally known”—or, alternatively, “to call to the attention of the
public: advertise,” “to place before the public (as through a mass medium),” or to
“disseminate.” Webster’s Third at 1837. “Print” is similar. The most pertinent
definition in Webster’s Second defines “print” to mean “[t]o publish a book,
article, music, or the like,” Webster’s Second at 1967, and the successor in
Webster’s Third treats the term as a subset of publishing generally, defining it to
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include “to publish in print”—as in “all the news that’s fit to [print],” Webster’s
Third at 1803. On balance, then, we think that the context provided by the terms
“print[]” and “publish[]” operates to cabin the meaning of the word “make[]” as
used in § 2251(d)(1). The interpretive canon noscitur a sociis, after all, instructs
that “words grouped in a list should be given related meanings.” Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 195 (2012)
(internal quotation marks omitted). Applying that rule here, the words “print[]”
and “publish[],” which clearly contemplate only public communication, would
seem to similarly limit the word “make[].”
When we shift our focus from the verb phrase “make[], print[], or publish[]”
to its object—“any notice or advertisement”—we find contextual clues pointing in
opposite directions. On one side of the ledger, there is the fact that § 2251(d)(1)
uses the capacious term “any.” Typically, when Congress intends to restrict the
scope of a particular word, it introduces that word with a limiting adjective or
adverb. See, e.g., Wisconsin Cent. Ltd. v. United States, 138 S. Ct. 2067, 2071-72
(2018). Accordingly, had Congress wanted to limit the word “notice” to mean
only “public notice,” it could easily have added the adjective “public.” Instead,
Congress did just the opposite: it modified “notice” with the encompassing
adjective “any.” See Gries, 877 F.3d at 260 (“The phrase ‘any notice or
advertisement’ in § 2251(d) casts a wide net for this offense.”). As we have often
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had occasion to say, when interpreting a statute, “any” means “all.” Merritt v.
Dillard Paper Co., 120 F.3d 1181, 1186 (11th Cir. 1997) (“[T]he adjective ‘any’ is
not ambiguous; it has a well-established meaning . . . . Congress did not add any
language limiting the breadth of that word, so ‘any’ means all.” (internal quotation
marks omitted)); see also Laperriere v. Vesta Ins. Grp., Inc., 526 F.3d 715, 726
(11th Cir. 2008) (“[T]he term ‘any’ in a statute has a ‘broad,’ ‘powerful,’ and
‘expansive’ meaning; it does not mean ‘some’ or ‘all but a few,’ but instead means
‘all.’” (internal quotation marks omitted)). Congress’s use of “any” in
§ 2251(d)(1) obliges us to give the word “notice” the broadest interpretation that it
will reasonably bear.
There is, though, contextual evidence that cuts the other way—most notably,
Congress’s juxtaposition of the terms “notice” and “advertisement.” As we’ve
already explained, see supra at 8-9, the word “advertisement” clearly connotes a
public communication. Applying the noscitur a sociis canon—which, again, holds
that words grouped together should be given a similar meaning—would suggest
that “notice,” too, should be limited to public communications. Cf. Gustafson v.
Alloyd Co., 513 U.S. 561, 573-76 (1995) (interpreting the phrase
“any . . . communication” to refer only to public communications, in part because
the adjacent inclusion of the terms “notice, circular, [and] advertisement” made it
“apparent that the list refer[red] to documents of wide dissemination” (emphasis
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added)). Having said that, noscitur a sociis is no trump here, for two reasons.
First, some courts—including at least one interpreting § 2251(d)(1)—have posited
that that the canon is of limited utility where the statutory term whose meaning is
being sought is one of a group of only two, rather than one of three or more. See,
e.g., Franklin, 785 F.3d at 1369 (rejecting application of noscitur a sociis to define
“advertisement” and “notice” under § 2251(d) because “a list of two words” is “too
short for the canon”); but cf. MBIA Ins. Corp. v. FDIC, 708 F.3d 234, 241-42, 245
(D.C. Cir. 2013) (declining to accept a party’s argument that “a list of two words is
an inappropriate occasion for application of noscitur a sociis”). Second, for
noscitur a sociis to apply, “the terms must be conjoined in such a way as to indicate
that they have some quality in common.” Scalia & Garner, supra, at 196. And
here, although the terms “notice” and “advertisement” undoubtedly share
similarities, Congress’s decision to separate them by the disjunctive term “or”
might indicate that it intended their meanings to be different. See Loughrin v.
United States, 573 U.S. 351, 357 (2014) (stating that the “ordinary use” of “or” “is
almost always disjunctive, that is, the words it connects are to be given separate
meanings”).
As our back-and-forth, tennis-match-ish analysis indicates, neither
dictionary definitions nor the traditional canons of statutory interpretation neatly
resolve the question we face here—whether, as used in 18 U.S.C. § 2251(d)(1), the
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phrase “make[] . . . any notice” refers only to public communication, or instead is
broad enough to encompass private, person-to-person texts messages between two
individuals. To resolve this seemingly intractable ambiguity, therefore, we turn to
a traditional interpretive tiebreaker: the rule of lenity. See United States v. Rivera,
884 F.2d 544, 546 (11th Cir. 1989) (“The rule of lenity is merely a canon of
statutory construction.”).
The rule of lenity holds that if at the end of the interpretive road—having
exhausted the applicable semantic and contextual canons of interpretation, and thus
“seiz[ed] everything from which aid can be derived,” Ocasio v. United States, 136
S. Ct. 1423, 1434 n.8 (2016) (internal quotation marks omitted)—meaningful
doubt remains about the application of a criminal statute to a defendant’s conduct,
then the doubt should be resolved in the defendant’s favor. See Scalia & Garner,
supra, at 296-302. The rule is born of the principle that the law “must speak ‘in
language that is clear and definite’ if it is to render something a crime,” United
States v. Phifer, 909 F.3d 372, 383 (11th Cir. 2018) (quoting United States v. Bass,
404 U.S. 336, 347 (1971)), and serves the twin aims of (1) ensuring that the public
is given a “fair warning” that punishment will follow when “a certain line is
passed” and (2) preserving the “separation-of-powers doctrine, [which] requires
[that] legislatures, not courts . . . define crimes,” id.
We have serious doubts about whether the phrase “make[] . . . any notice” in
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§ 2251(d)(1) is broad enough to cover the private, person-to-person text messages
that Caniff sent—doubts that we find cannot be adequately resolved by reference
to the traditional tools of statutory interpretation. In this instance, therefore, the
rule of lenity requires us to resolve our doubts in Caniff’s favor. Accordingly, we
hold that 18 U.S.C. § 2251(d)(1)—and specifically, its prohibition against
“knowingly mak[ing] . . . any notice . . . seeking or offering [child
pornography]”—does not apply to a private text message sent from one individual
to another.
We think it important to note that our interpretation does not, as the
government warns, “thwart” 18 U.S.C. § 2251’s “purpose.” (Aple. Br. 39.) It may
be true that Congress intended § 2251 to be a “comprehensive regulatory scheme”
aimed at “criminalizing the receipt, distribution, sale, production, possession,
solicitation and advertisement of child pornography.” United States v. Parton, 749
F.3d 1329, 1330 (11th Cir. 2014) (internal quotation marks omitted) (addressing
§ 2251(a)). Noble as that purpose may be, though, we can’t serve it by making one
of that scheme’s constituent provisions—§ 2251(d)(1)—say something it doesn’t,
or by ignoring an ambiguity within it that we think is inescapable. See United
States v. Wiltberger, 18 U.S. 76, 95-96 (1820) (Marshall, C.J.) (stating that “[t]he
intention of the legislature is to be collected from the words they employ” and
elaborating that “[t]o determine that a case is within the intention of a statute, its
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language must authorise us to say so”).
Nor does our interpretation, as the government insists, “circumvent federal
law” by “creat[ing] a one-on-one advertisement exception for persons interested in
child pornography.” (Aple. Br. 39.) Regardless of what we decide today about the
scope of § 2251(d)(1), Title 18 gives the government ample—and clear— authority
to punish those, like Caniff, who solicit child pornography through private text
messages. Perhaps most on point, 18 U.S.C. § 2251(a) prescribes a 15-years-to-
life sentence for anyone “who employs, uses, persuades, induces, entices, or
coerces any minor to engage in . . . any sexually explicit conduct for the purpose of
producing any visual depiction of such conduct.” That prohibition extends not
only to those who solicit minors for sex, but also to those, like Caniff, who ask for
nude photos—the surest proof being that Caniff was charged and convicted under
§ 2251(a) and that (as we will explain momentarily) we affirm that conviction
today. See also United States v. Mathis, 767 F.3d 1264, 1279-80 (11th Cir. 2014)
(rejecting a sufficiency-of-the-evidence challenge to a § 2251(a) conviction of a
defendant who sent a text message to a minor “offer[ing] to pay [the minor] for a
picture of [his] genitalia” and “direct[ing the minor] to take sexually explicit
pictures”), abrogated on other grounds by Lockhart v. United States, 136 S. Ct.
958, 961 (2016).
Then there’s 18 U.S.C. § 2252(a)(2), which makes it a crime—punishable by
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five to 40 years in prison—to “knowingly receive[] . . . any visual depiction” of a
minor engaging in “sexually explicit conduct” by “using any means or facility of
interstate or foreign commerce.” So too § 2252A(a)(2), which makes it a crime—
also punishable by five to 40 years—to knowingly receive any “child
pornography” that has been mailed or “using any means or facility of interstate or
foreign commerce . . . by any means, including by computer.” Notably, wholly
apart from the act of soliciting nude photos, § 2252(a)(2) and § 2252A allow the
government to separately charge an individual if he receives pictures via “any
means or facility of interstate or foreign commerce.”
As these provisions (and the balance of our opinion) make clear, our
interpretation of § 2251(d)(1) does not prevent or inhibit the government from
prosecuting those who solicit child pornography through private text messages—
far from it. 4
* * *
4
We also reject the government’s suggestion that our interpretation of § 2251(d)(1) departs from
the approach taken by our sister circuits. As the government notes, other courts have held that
§ 2251(d)(1) makes it a crime to post offers to buy and sell child pornography in computer “chat
rooms.” See, e.g., United States v. Grovo, 826 F.3d 1207, 1211-12 (9th Cir. 2016) (messages
visible to 40-45 people); Franklin, 785 F.3d at 1367 (messages visible to 108 people). These
decisions are perfectly consistent with the reasoning we have articulated here: Posts in chat
rooms or to online message boards are just the contemporary successors to the signs, posters, and
placards to which pre-internet dictionaries refer. See supra at 10-11. That an online message
board might be password-protected does not make the “notice[s] or advertisement[s]” posted
there any less public—it is merely the equivalent of a bulletin board in a college dorm that
requires keycard access to enter.
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Relying on the rule of lenity, we hold that there was insufficient evidence for
the jury to find that Caniff’s private, person-to-person text messages to “Mandy”
requesting sexually explicit photos were “notice[s]” “ma[de]” within the meaning
of 18 U.S.C. § 2251(d)(1). Accordingly, we reverse Caniff’s conviction on that
ground.
B. There was sufficient evidence for a jury to find that Caniff believed Mandy
was thirteen
Caniff next challenges his remaining two convictions, arguing that, in light
of his defense that he believed that he was text messaging with an adult woman
who was role playing the part of a thirteen-year-old, there was insufficient
evidence for the jury to find that he believed he was texting a minor.5 “We review
de novo the sufficiency of the evidence[,] . . . view[ing] the evidence in the light
most favorable to the government and draw[ing] all reasonable inferences and
credibility choices in favor of the jury’s verdict.” Dixon, 901 F.3d at 1335
(internal quotation marks and citation omitted).
We will not reverse unless no reasonable trier of fact could find guilt
beyond a reasonable doubt. It is not our function to make credibility
choices or to pass upon the weight of the evidence. Instead, we must
sustain the verdict where there is a reasonable basis in the record for it.
United States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010) (internal quotation
5
Caniff raises this same challenge to his conviction under 18 U.S.C. § 2251(d)(1). Because we
reverse that conviction on other grounds, however, we needn’t consider this argument.
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marks and citations omitted).
There is a reasonable basis in this record to support the jury’s finding that
Caniff believed Mandy was a minor. During their exchange of text messages,
Mandy expressly told Caniff several times that she was thirteen. See United States
v. Rutgerson, 822 F.3d 1223, 1228-30, 1232-33 (11th Cir. 2016) (holding there
was sufficient evidence for jury to find defendant believed he was electronically
conversing with fifteen-year-old because she told him in her emails and text
messages that she was fifteen); United States v. Yost, 479 F.3d 815, 819 (11th Cir.
2007) (per curiam) (holding there was sufficient evidence for jury to find that the
defendant acted with specific intent to persuade a minor to engage in criminal
sexual activity where “both girls told Yost they were under-age multiple times”).
In addition, a jury could find that many of Mandy’s text messages suggested that
she was thirteen—being on spring break, not being old enough to drive, and being
sexually inexperienced. Furthermore, there was nothing in their text messages that
expressly or even inferentially suggested that Mandy was an adult or that either
Caniff or Mandy were only role playing.
To be sure, there was some other evidence from Caniff after his arrest where
he professed to believe Mandy was an adult who was role playing to be a minor—
Caniff’s statements to police, for example, during his interview immediately after
his arrest—from which the jury could have found instead that Caniff thought
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Mandy was an adult role playing as a thirteen-year-old. But at the very most, that
sets up conflicting evidence. However, we must on this appeal take the evidence
in the light most favorable to the government and ask only if there was enough, if
that evidence was believed, to cause a reasonable jury to convict. In light of that,
we must uphold Caniff’s convictions. See Farley, 607 F.3d at 1300, 1333-34
(holding evidence was sufficient for trial court conducting bench trial to find that
defendant who believed he was texting a mother about having sex with her and her
ten-year-old daughter “was ‘for real,’ and to disbelieve his insistence at trial that it
was all a fantasy”); Yost, 479 F.3d at 819 (holding there was sufficient evidence
for jury to find that defendant had specific intent to persuade minor to engage in
criminal sexual activity, despite his assertion that “he believed he was
communicating with adult women role-playing as minors”).
C. The district court did not abuse its discretion in permitting Detective
Greene’s challenged testimony
Lastly, Caniff challenges Detective Greene’s testimony regarding the
contents of Caniff’s cell phone. After Caniff’s arrest, Detective Greene
interviewed Caniff and searched his cell phone. On direct examination, the
detective testified that on Caniff’s cell phone he found pictures of a penis and the
text messages that Caniff and Mandy exchanged. During cross-examination,
defense counsel asked Detective Greene if he found anything else on Caniff’s cell
phone:
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Q. . . . Other than that, there was nothing else in the phone of any
evidentiary value, correct?
A. In reference to this case, no -- or, I mean --
Q. In reference to anything.
A. -- any other case that I knew of, yes.
Q. There was no other illegal activity - - even if that’s illegal activity,
there was no illegal activity in the phone, correct?
A. Correct.
Q. Okay. There was no child pornography in his phone, correct?
A. Correct.
Q. There were no chats on his phone that were inappropriate or illegal,
correct?
A. Correct.
Q. Okay. The only thing found on his phone was adult pornography,
correct?
A. To the best of my knowledge, yes.
Q. Okay. And nothing illegal with what he had, correct?
A. Correct.
(Doc. 80 at 23.) On redirect, the prosecutor asked:
Q. Okay. Now [defense counsel] asked you if there was evidence of
any -- I think she said there was no -- she said there was no evidence of
any illegal activity in the phone.
Is it your understanding that the text messages are evidence of
illegal activity that is what brings us here today?
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A. Yes.
[Defense counsel]: Objection, Your Honor. He’s asking for an
opinion. That’s the whole issue in this courtroom today.
THE COURT: Give me just a moment.
I’ll overrule the objection. You may answer the question,
Detective.
THE WITNESS: Thank you.
I assumed aside from what we were here to discuss today, but
yes, I found nothing else that was apparent -- apparently illegal in the
phone outside of this.
BY [Prosecutor]:
Q. But you gathered the evidence of the text messages.
A. Yes.
Q. And based on the judge’s ruling, you can answer. Was that, in your
opinion --
A. Yes.
Q. -- evidence of illegal activity.
A. Yes.
Q. And the same question for the photos of the penises that were sent
to Agent Beccaccio.
Is it -- based on your training and --
[Defense counsel]: Your honor, same objection.
THE COURT: Same ruling.
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BY [Prosecutor]:
Q. Based on your training as a law enforcement officer, did you deem
those to be evidence of illegal activity?
A. Yes.
(Id. at 25-26.)
“We review the district court’s evidentiary ruling[] for an abuse of
discretion.” United States v. Augustin, 661 F.3d 1105, 1123 (11th Cir. 2011) (per
curiam). Caniff argues primarily that this testimony violated Federal Rule of
Evididence 704(b), which “[i]n a criminal case,” precludes an expert’s “opinion
about whether the defendant did or did not have a mental state or condition that
constitutes an element of the crime charged or of a defense. Those matters are for
the trier of fact alone.” 6 But Detective Greene was never offered or qualified as an
expert witness. “[J]ust because a lay witness’s position and experience could have
qualified him for expert witness status does not mean that any testimony he gives
at trial is considered ‘expert testimony.’ Lay witnesses may draw on their
6
Rule 704 provides:
(a) In General – Not Automatically Objectionable. An opinion is not
objectionable just because it embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about
whether the defendant did or did not have a mental state or condition that constitutes
an element of the crime charged or of a defense. Those matters are for the trier of
fact alone.
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professional experiences to guide their opinions without necessarily being treated
as expert witnesses.” United States v. Jeri, 869 F.3d 1247, 1265 (11th Cir. 2017)
(citation, internal quotation marks, alterations omitted) (holding police officer did
not testify as expert even though his testimony “showed [his] familiarity with
narcotics investigations and his experience interviewing drug couriers”), cert.
denied, 138 S. Ct. 529 (2017).
Moreover, even if Detective Greene did give expert testimony, Rule704(b)
only precludes an expert from “expressly stat[ing] a conclusion that the defendant
did or did not have the requisite intent” and from stating “an opinion as to the
defendant’s state of mind at the time of the offense.” Id. at 1266 (internal
quotation marks omitted). But Rule 704(b) does not preclude even “expert
testimony that supports an obvious inference with respect to the defendant’s state
of mind if that testimony does not actually state an opinion on this ultimate issue,
and instead leaves this inference for the jury to draw.” Augustin, 661 F.3d at 1123
(internal quotation marks and alteration omitted). Detective Greene’s challenged
testimony may be ambiguous, but it clearly did not expressly address Caniff’s
mental state. Detective Greene’s testimony did not at all address whether Caniff
believed Mandy was thirteen. Detective Greene, on rebuttal, testified only that he
found “evidence of illegal activity” on the phone. Indeed, he did not even say what
that evidence was or whether it related at all to Caniff’s state of mind. “Evidence
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of illegality” could as easily have referred to other elements of illegality other than
the mens rea element.
But even if we could say that the district court abused its discretion in
permitting Detective Greene’s challenged testimony, any error was harmless
because there is no “reasonable likelihood that it affected [Caniff’s] substantial
rights.” Id. (internal quotation marks and alteration omitted). It was defense
counsel, not the Government, who first asked the detective if there was “illegal
activity” on the phone. The Government, on redirect, was merely attempting to
clarify any confusion the detective’s responses on cross-examination may have
created, and to explain why he gathered the text messages as evidence. We cannot
conclude the district court abused its discretion in admitting this testimony but
even if the district court did so, any error was harmless.
III. CONCLUSION
For the foregoing reasons, we REVERSE Caniff’s conviction under 18
U.S.C. § 2251(d)(1) and AFFIRM his convictions under § 2422(b) and § 2251(a).
28
Case: 17-12410 Date Filed: 04/09/2020 Page: 29 of 29
NEWSOM, Circuit Judge, concurring:
I concur in the Court’s revised opinion. For reasons that I’ve already
explained at length and needn’t repeat here, I am convinced that 18 U.S.C. §
2251(d)(1) is best (if unfortunately) interpreted not to reach Caniff’s conduct. It
has always seemed pretty obvious to me that when Caniff sent private, person-to-
person text messages requesting explicit photos, he didn’t “make[]” a “notice” for
them. See United States v. Caniff, 916 F.3d 929, 940–48 (11th Cir. 2019)
(Newsom, J., concurring in part and dissenting in part). Having said that, because,
at the very least, § 2251(d)(1) doesn’t clearly cover Caniff’s conduct, I am satisfied
with the Court’s lenity-based resolution.
29 | 01-03-2023 | 04-09-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3873678/ | DECISION
This matter is before this Court on Petitioner William Del Santo's ("Del Santo") appeal from the Law Enforcement Officer's Bill of Rights Hearing Committee's ("Committee") August 16, 2005 decision, sustaining the six charges the Town of Bristol Police Department had brought against Del Santo for violating the Department's Rules and Regulations ("Rules and Regulations"). The Committee held that as a result of his misconduct, Del Santo should be terminated from his employment with the Department. Jurisdiction is pursuant to G.L. 1956 § 42-28.6-12. For the reasons set forth below, the Committee's decision is hereby affirmed.
Facts and Travel
This controversy began in or around June, 2002 when Del Santo, a seventeen and one-half year veteran of the Bristol Police Department, first began to have a sexual relationship with Lisa Zimmerman ("Zimmerman"), a single mother of three. At the time, Del Santo was assigned as a D.A.R.E. officer and had met Zimmerman through Zimmerman's son, a student in the D.A.R.E. program. (Tr. V.I at 28.) At the onset of his relationship with Zimmerman, Del Santo would periodically go to Zimmerman's apartment and help her with her children who were having behavioral problems. (Tr. V.I at 28.) Thereafter, though, in June of 2002, their relationship became sexual. Id. at 30.
Zimmerman testified that Del Santo first attempted to progress their then-existing platonic relationship into a sexual relationship on June 20, 2002, when, while on-duty as a D.A.R.E. officer, Del Santo made a comment to Zimmerman implying his desire to have sex with her. Id. at 53.1 Despite having rejected his advances at that time, Zimmerman stated that the relationship soon became sexual and that Del Santo would come to her home to engage in sexual relations about three times a month, for a period of nine months, while working the third shift. Id.
at 30. During the summer, Del Santo would visit Zimmerman between the hours of 12:00 and 1:00 and engage in sexual activity, yet he informed Zimmerman that he would record in his log book that he had come over to help with the children in his capacity as D.A.R.E. officer. Id. at 31. Zimmerman and Del Santo also engaged in sexual activity in the D.A.R.E. office at the Walley School. Id. at 32, Tr. V.II at 88. On one particular occasion, Del Santo called Zimmerman at 2:00 a.m. and asked her to meet him at the D.A.R.E. office. (Tr. V.I at 32.) On her way to meet Del Santo, Zimmerman fell down her stairs, injuring herself. When she arrived at the D.A.R.E. office, Del Santo, although on-duty at the time, did not offer to render medical attention; instead, Del Santo sent Zimmerman home with the suggestion that she take some pain medication. Id. at 33; Tr. V.II at 99-100.
Thereafter, in March 2003, the Zimmerman-Del Santo relationship fizzled. On March 16, 2003, while at Zimmerman's apartment, a heated argument ensued between Del Santo and Zimmerman. (Tr. V.I at 34; Tr. V.II at 104-06.) At one point during the argument, Zimmerman screamed that she was "going to jump [off] the bridge" and stormed out of her apartment. Id. In response, Del Santo called the Bristol Police Department and informed them to be on the lookout for a woman who might be jumping off the Mt. Hope Bridge. The Bristol Police did search the bridge but did not find Zimmerman. Later that evening, the police went to Zimmerman's apartment where Zimmerman, who at that point had returned, told the police that Del Santo had forced her to have sex with him. (Tr. V.I at 35.) Zimmerman, however, later admitted that she had lied to the police when she told them she had been forced to have sex, because at the time she was angry with Del Santo.2Id. at 55. Sergeant Cotente then told Del Santo to go back to the Police Station. (Tr. V.II at 109.) At the station, Del Santo testified that he told Cotente that nothing was going on other than that he and Zimmerman were having an argument and that he was embarrassed to admit that he was having an affair with her.Id. at 110.
The following morning, March 17, 2003, Del Santo was called into a meeting with Lieutenant Canario and Lieutenant Ursini.Id. at 112. At the meeting, Del Santo was told not to have any contact with Zimmerman. According to Del Santo, he specifically asked if he was being ordered not to talk to her and was told that it was not an order but only a suggestion. Id. Canario, to the contrary, testified that he directly ordered Del Santo not to have any contact with Zimmerman or anyone else pertaining to the investigation. (Tr. V.I. at 94.) According to Canario, Del Santo clearly understood his instructions. Id. Despite this order, however, Zimmerman testified that Del Santo contacted her on March 17 and asked her to lie to any officers who may question her, because Del Santo was afraid he might lose his pension.3 (Tr. V.I at 36.) Zimmerman also stated that Del Santo contacted her on March 18, 19, and 20. Furthermore, on March 19, 2003, Del Santo went to Zimmerman's son's school, removed her son from class, and told him not to talk to anyone regarding the relationship between Zimmerman and Del Santo. Id.
at 40. Del Santo contends, though, that he did not know that had he been ordered not to contact Zimmerman, and that once he realized he was under an order, he stopped all communication with her. (Tr. V.II at 120.)
On March 21, 2003, this matter intensified when Zimmerman bumped her vehicle into Del Santo's vehicle, while Del Santo was sitting in his car at a stop sign. (Tr. I. at 40-42; Tr. V.II at 126-28.) Thereafter, Del Santo drove to the Bristol Police Department, followed by Zimmerman. Id. Zimmerman was again interviewed by the internal affairs investigators and revealed that she had previously lied to them because Del Santo had asked her to do so. (Tr. V.II at 47.) She then stated that Del Santo and she had been having sexual relations for the previous nine months and that Del Santo had contacted her several times since his March 17 meeting with Canario and Ursini.
As a result of the internal investigation, on April 4, 2003, the Department formally charged Del Santo with violating the Department's Rules and Regulations for engaging in conduct unbecoming a police officer and for willfully disobeying orders, rules, and regulations. (Town's Ex. 3.) The Department recommended that Del Santo be suspended for sixty days without pay, be placed on eighteen months probation, and be removed from the D.A.R.E. position. Id. Del Santo appealed those charges and thereafter entered into a settlement agreement with the Department pursuant to which the matter was held in abeyance and the time limits in the statute of limitations were waived.
While the charges stemming from the Zimmerman relationship were still outstanding, Del Santo continued to serve as an officer for the Department. As a member of the Department, Del Santo had the opportunity to patrol the campus of Roger Williams University. On several occasions, Del Santo made contact with Kathleen Souza, a female security officer at the University. Souza testified that in September, 2004, Del Santo was called to assist in the investigation of a criminal matter involving one of the University's students. (Tr. V.I at 113-14.) According to Souza, while she and Del Santo were driving to the dormitory, Del Santo suggested that they go behind one of the campus' buildings and take pictures of one other. Id. Souza responded by telling Del Santo that he "had the wrong girl." Id. Several months later, in the fall of 2004, Souza testified that she was sexually harassed for a second time by Del Santo when he remarked that Souza probably did not like to wear seat belts because of the size of her breasts. Id. at 114-15. Souza further testified that in February 2005, while at the University's security station, Del Santo told her that if she "pulled out a boob" she could win a prize at a local bar's hot body contest, and that if she "took it all off," she could possibly make several hundred dollars. Id. at 117-18. When interviewed by Bristol Police Lieutenant Guercia in March 2005, Del Santo stated that he remembered talking to Souza about pulling out a breast for the hot body contest but did not remember the remaining comments.4 (Tr. V. III at 48.)
In response to those comments, Souza contacted the Bristol Police Department and informed Sergeant Motta of Del Santo's behavior. (Tr. V.I at 159.) Souza thereafter submitted a report to her supervisor, Roger Williams University Security Director Brendan Doherty, who forwarded the report to the Bristol Police Department. (Tr. V.I at 144, 159.) After investigating the allegations regarding the Souza incident, Del Santo was charged with four additional counts of violating the Department's Rules and Regulations, in addition to those charges which stemmed from the Zimmerman affair. The Department requested that Del Santo be terminated. (Joint Ex. 1.)
Consequently, Del Santo made a timely request for a hearing before a Hearing Committee pursuant to the Law Enforcement Officer's Bill of Rights, § 42-28.6-1 et seq. The Committee held hearings on July 19, 21, and 22, 2005, wherein they heard testimony from several witnesses and received documentary evidence for review. On August 16, 2005, the Committee issued its decision, sustaining the charges against Del Santo and affirming the recommendation to terminate his employment from the Department. Del Santo has timely filed his appeal of that decision to this Court.
Standard of Review
"The Law Enforcement Officer's Bill of Rights . . . is the exclusive remedy for permanently appointing law enforcement officers who are under investigation by a law enforcement agency for any reason that could lead to disciplinary action, demotion or dismissal." City of East Providence v. McLaughlin,593 A.2d 1345, 1348 (R.I. 1991). Under the Law Enforcement Officer's Bill of Rights, an officer facing departmental charges may request a hearing before a Hearing Committee composed of three active or retired law enforcement officers who have had no part in the investigation or interrogation of the law enforcement officer. §§42-28.6-1 and 42-28.6-4. The charging law enforcement agency has the burden of proving to the Hearing Committee by a fair preponderance of the evidence that the law enforcement officer is guilty of the offenses of which he or she is accused. §42-28.6-11(c). The Hearing Committee has broad discretion to modify in whole or in part the sanctions that the charging authority recommends and is not bound by the recommendations of the officer's departmental superiors. Culhane v. Denisewich,689 A.2d 1062, 1064 (R.I. 1997). If an officer is aggrieved by a decision of the Hearing Committee, the officer may appeal the decision to the Superior Court pursuant to § 42-28.6-12, which provides that the Hearing Committee "shall be deemed an administrative agency and its final decision shall be deemed a final order in a contested case within the meaning of §§42-35-15 and 42-35-15.1"
Accordingly, the Superior Court's review of a Hearing Committee decision is governed by § 42-35-15(g), which provides:
"The Court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
When reviewing agency decisions, this Court is precluded from substituting its judgment for that of the agency with respect to the credibility of witnesses or the weight of evidence concerning questions of fact. Center for Behavioral Health, R.I., Inc. v.Barros, 710 A.2d 680, 684 (R.I. 1998). This is true even in those cases where this Court, after reviewing the certified record and evidence, might be inclined to view the evidence differently than the agency. Berberian v. Dep't of EmploymentSec., 414 A.2d 480, 482 (R.I. 1980). This Court's review is limited to determining whether substantial evidence exists to support the decision. Newport Shipyard, Inc. v. Rhode IslandComm'n for Human Rights, 484 A.2d 893, 897 (R.I. 1984)). Substantial evidence is "such relevant evidence that a reasonable mind might accept as adequate to support a conclusion, and means an amount more than a scintilla but less than a preponderance."Center For Behavioral Health, R.I., Inc., 710 A.2d at 684
(quoting Newport Shipyard, Inc., 484 A.2d at 897). This Court will "reverse factual conclusions of administrative agencies only when they are totally devoid of competent evidentiary support in the record." Milardo v. Coastal Resources Management Council,434 A.2d 266, 272 (R.I. 1981). "Legally competent evidence is marked `by the presence of "some" or "any" evidence supporting the agency's findings.'" State v. R.I. State Labor RelationsBd., 694 A.2d 24, 28 (R.I. 1997) (quoting EnvironmentalScientific Corp. v. Durfee, 621 A.2d 200, 208 (R.I. 1993)). Agency decisions on questions of law, however, are not binding upon the Court and may be reviewed to determine the law and its applicability to the facts. Narragansett Wire Co. v. Norberg,118 R.I. 596, 607, 376 A.2d 1, 6 (1977).
The Committee DecisionA) Rules and Regulations and The Mission Statement
Del Santo first argues that the Committee's decision should be overturned pursuant to § 42-35-15(g) because the decision was based upon unlawful procedure and that if the lawful procedures had been followed, the Department could not have sustained its burden of proving that Del Santo had acted in violation of the Rules and Regulations. Namely, Del Santo argues that the Committee erred when it failed to exclude from evidence the Department's Rules and Regulations and the Department's Mission Statement. This Court finds, however, that while a complete version of the Rules and Regulations and the Mission Statement should not have been allowed into evidence, the specific Rules and Regulations for which Del Santo was provided notice of violating were properly admitted into the record as the Department complied with § 42-28.6-5, as it pertains to those rules.
The conduct of a hearing before the Hearing Committee is governed by § 42-28.6-5. As it pertains to the submission of evidence, that statute provides:
"(c) Not less than ten (10) days prior to the hearing date, the charging law enforcement agency shall provide to the law enforcement officer: . . .
(iii) A list of all documents and other items to be offered as evidence at the hearing. . . .
(e) Failure by either party to comply with the provisions of subsections (c) and (d) of this section shall result in the exclusion from the record of the hearing of testimony and/or evidence not timely disclosed in accordance with those sections."
The Court is aware that the Department's Rules and Regulations "are evidentiary facts which must be proved and are not susceptible to judicial notice by a court of general jurisdiction." Hooper v. Goldstein, 104 R.I. 32, 37,241 A.2d 809, 811 (1968). See also, Town of Lincoln v. Cournoyer,95 R.I. 280, 284, 186 A.2d 728, 730 (1962) ("It is generally held that the doctrine of judicial notice will not be extended to the enactment of specific municipal ordinances or to the specific provisions of such municipal ordinances"). While not a court of general jurisdiction, the Hearing Committee does not stand in a peculiar relationship with the Bristol Police Department, the entity which promulgated the Rules and Regulations, so that judicial notice of the Rules and Regulations would be proper.See Hooper, 104 R.I. at 37, 241 A.2d at 812.5
Accordingly, the Committee was prohibited from taking judicial notice of the Rules and Regulations and the Mission Statement, and the Department was required to prove those documents as evidentiary facts. Thus, the Department was required to submit the Rules and Regulations and Mission Statement into the record as evidence pursuant to the procedural guidelines set forth in the Law Enforcement Officer's Bill of Rights, § 42-28.6-1 et seq.
Del Santo contends that neither he nor his counsel ever received a list of the documents that the Department intended to introduce at the hearing; instead, they were only provided with two packages of documentation, with neither package containing the Rules and Regulations or the Mission Statement. Accordingly, Del Santo claims, pursuant to § 42-28.6-5(e), the Rules and Regulations and the Mission Statement should have been kept out of the record, and consequently, by failing to exclude those document, the Committee's decision is based upon reversible procedural error. Furthermore, Del Santo argues that because the Rules and Regulations should have been excluded from evidence, it follows that the Department failed to satisfy its burden of demonstrating that Del Santo violated the Rules and Regulations as those Rules and Regulations had not been proven to exist in the form that was submitted to the Committee.6 However, this Court finds that the Rules and Regulations that the Committee found Del Santo to have violated were appropriately admitted into evidence.
Here, it is uncontested that the Department never provided Del Santo with a list indicating their intention to submit to the Committee a complete copy of the Rules and Regulations or the Mission Statement. Therefore, it was erroneous for the Committee to accept such documents as evidence when § 42-28.6-5(e) specifically provides that evidence shall be excluded when a party has failed to provide the appropriate notice of his or her intent to introduce that evidence at the hearing. However, while the complete copy of the Rules and Regulations should have been excluded from the record, those Rules and Regulations which Del Santo was specifically charged with violating were properly before the hearing Committee. On April 14, 2005, more than ten days prior to the hearing date (the limitation period provided in § 42-28.6-5(c)), the Department provided Del Santo with a list of the charges against him and a list of the specific Rules and Regulations he was charged with violating. (Joint Ex. 1.) That letter set forth the charges as follows:
"It is my duty to inform you that you are being charged with the following violations of the Bristol Police Department Rules and Regulations:
1. CHARGE: 1-2 IV. B. CONDUCT UNBECOMING A POLICE OFFICER
SPECIFICATION: In that on or about the month of June 2002 and until the month of March, 2003 while in the capacity of the Bristol Police Drug Awareness Resistance Education Officer (D.A.R.E.) engaged in a sexual relationship with Lisa Zimmerman. That this relationship was entered into with the parent of a D.A.R.E. graduate, and another child currently engaged in the D.A.R.E. program under your direction.
2. CHARGE: 1-2 VI. B. OBEDIENCE TO ORDERS, RULES AND REGULATIONS.
SPECIFICATION: In that you violated department Rules entitled, (authority) which states that all department employees shall obey all lawful orders issued to them. In that on March 17, 2003 you failed to follow an order by Lieutenant Josue D. Canario, a member and officer of the Bristol Police Department, not to have contact with Lisa Zimmerman while an investigation into allegations against you were being conducted.
3. CHARGE: 1-2 GENERAL RULES OF CONDUCT, 1V, B. CONDUCT UNBECOMING, 1-2-3
SPECIFICATION: In that during the time period of September 2004 through February 2005, you did have a conversation with Kathleen Souza regarding seat belts and the conversation involved inappropriate comments regarding women's breast [sic]. Further, in September 2004, you engaged in conversation with Kathleen Souza while she was in a police vehicle and you requested that she drive with you behind a building and engage in taking photographs of one another. And further that on another occasion during a conversation in early February while in the Roger Williams University Security Office, you made inappropriate comments to Kathleen Souza regarding her breast. This action by you reflects unfavorably on your ability to perform in a professional manner which brings discredit to both yourself and the department.
4. CHARGE: V. GENERAL APPEARANCE AND BEHAVIOR, H.1., APPROPRIATE CONDUCT 1-2-8
SPECIFICATION: In that during the time period of September 2004 through February 2005, you had a conversation with Kathleen Souza regarding seat belts, and that conversation involved inappropriate comments regarding women's breast [sic]. Further, in September 2004, you engaged in conversation with Kathleen Souza while she was in a police vehicle and you requested that she drive with you behind a building and engage in taking photographs of one another. On another occasion during a conversation in early February while in the Roger Williams University Security Office, you made inappropriate comments to Kathleen Souza regarding her breast. Your actions in making inappropriate comments rise to the level of inappropriate conduct, sexual harassment, and the use of inappropriate sexual related language causing public disgust and alarm.
5. CHARGE: B. OBEDIENCE TO ORDERS, RULES AND REGULATION G. FALSE STATEMENT. 1-2-13
SPECIFICATION: Whereas you withheld information as to the truth of the alleged incidents involving Kathleen Souza that assisted in resolving the complaint currently under investigation.
6. CHARGE: A. VIOLATION OF RULES, J. NEGLECT OF DUTY. 1-2-4
SPECIFICATION: Between September 2004 and February 2004 you engaged in computer entertainment while in the security office at Roger Williams University, while on duty and not related to the course of your duties." (Joint Ex.1.)
Clearly Del Santo was provided with a list of the Rules and Regulations that were to be used against him, as the charges list the specific Rules and Regulations Del Santo was accused of violating: Rule IV. B, Rule VI. B, Rule V.H. 1, Rule VI. G (1-2-13), and Rule IV. J (1-2-4). While the charges did not include the exact language of those Rules and Regulations, the Department did not have the duty to disclose the contents of the Rules. General Law § 42-28.6-5 only requires that the charging law enforcement agency provide the law enforcement officer with "[a] list of . . . items to be offered as evidence at the hearing." (Emphasis added.) The Department, therefore, satisfied the statute by providing Del Santo with a list of the Rules and Regulations that he was being charged with violating. Further, even if the Department were required to disclose the contents of the Rules and Regulations, such a requirement would have been satisfied as Del Santo testified that he indeed received a copy of the Rules and Regulations at some point while serving as an officer. At the July 22, 2005 hearing, the following exchange took place:
"SGT. DaSILVA: One last thing, Bill [Del Santo]. You got a copy of the general rules of conduct?
THE WITNESS [DEL SANTO]: Yes.
SGT. DaSILVA: You're familiar with it?
THE WITNESS: Yes. . . .
SGT. CAMROLA: Back to the rules of conduct. When were you given a copy of the rules of conduct?
A. I was given my initial copy when I got hired way back I believe.
Q. This one has an effective date of 1997. You were hired probably about `86?
A. `88.
Q. Were you given another copy of this one that was reintroduced?
A. We get updated copies of the rules and regs all the time, and we're told to put them into the book that we have.
Q. So you received a copy of this one?
A. I'm sure I did." (Tr. V. III at 49-50.)"
Del Santo was thus aware of the Rules and Regulations that were going to be used against him as he had previously been given a copy of such documents. Apparently, though, Del Santo would have this Court hold that because the Department did not provide him with a sheet of paper with words to the effect of "This is a list of the Rules and Regulations which will be submitted as evidence to the Hearing Committee," those Rules should not have been introduced into the record.7 However, this Court does not interpret the language of § 42-28.6-5 (c)(iii) so narrowly and instead interprets the language so as to afford to it its plain and ordinary meaning. Kells v. Town of Lincoln, 874 A.2d 204,213 (R.I. 2005) ("When the language of a statute . . . is clear and unambiguous, we interpret the statute literally and give the words their plain and ordinary meaning.") In doing so, this Court finds that the Department satisfied the statute as it provided Del Santo with a list of the Rules and Regulations that he was charged with violating. Clearly, these Rules were to be submitted as evidence. Thus, the Committee did not err by allowing those portions of the Rules and Regulations into the record. The remaining Rules and Regulations, as well as the Mission Statement, which were erroneously admitted into evidence, did not prejudice Del Santo's substantial rights, as the Committee's decision is limited to finding Del Santo violated the Rules and Regulations which were appropriately before the Committee. Accordingly, this Court denies Del Santo's request to reverse the Committee's decision on this ground.
B) The Penalty
Del Santo further contends that it was an abuse of discretion for the Committee to sustain the Department's recommendation to terminate his employment rather than to impose a less severe penalty. According to Del Santo, the alleged misconduct involving Souza consisted of nothing more than three occasions of inappropriate comments, for which his immediate supervisor, Sergeant James Motta, recommended that Del Santo be given a verbal warning. (Town's Ex. 4 at 19.) In addition, Del Santo notes that while the Department recommended that Del Santo be suspended for sixty days following the Zimmerman incident, the matter was never fully prosecuted, and Del Santo did not serve any suspension time for the matter. Del Santo, therefore, argues that as a seventeen and one-half year veteran of the Department with no record of any significant discipline,8 the Committee abused its discretion by terminating him from employment. Del Santo argues that there is no substantial evidence in the record to support any suggestion that Del Santo engaged in a pattern of misconduct, and thus, the Committee's decision should be reversed.
"The hearing committee is not bound by the recommendations of the officer's departmental superiors. The committee has great discretion to modify in whole or in part the recommended sanctions presented by the charging authority." Culhane v.Denisewich, 689 A.2d 1062, 1064-65 (R.I. 1997) (citing StateDep't of Environmental Mgmt. v. Dutra, 121 R.I. 614,401 A.2d 1288 (1979); Lynch v. King, 120 R.I. 868, 391 A.2d 117 (1978) (committee may amend or modify the recommendation of the charging authority in respect to discipline or other punishment)). This Court recognizes, though, that an agency's, or in this case Hearing Committee's, sanction determination involves not only an ascertainment of the factual circumstances, but also the application of administrative judgment and discretion. Kulkin v.Bergland, 626 F.2d 181 (1st Cir. 1980). The prevailing view has thus been that review of the sanction imposed is an arbitrary and capricious review, which requires that the penalty be upheld unless unwarranted in law or without justification in fact.Broad Street Market, Inc. v. U.S., 720 F.2d 217 (1st Cir. 1983); Colazzo v. U.S., 668 F.2d 60 (1st Cir. 1983); Objio v.U.S., 113 F. Supp. 2d 204 (D. Mass. 2000). Accordingly, the Supreme Court of Rhode Island has held that this Court cannot substitute its judgment on findings of fact for that of the Committee and cannot modify the sanction imposed by the Committee so long as substantial evidence supports the decision. Culhane,689 A.2d at 1064-65 (R.I. 1997); see also, Rocha v. PublicUtilities Comm'n, 694 A.2d 722, 726 (R.I. 1997) (holding that the trial court may not substitute its judgment for that of the board with respect to the imposition of a sanction when competent evidence supports the factual findings of the board).
The Department requested that Del Santo be terminated because his improper behavior had continually progressed, and that while he had been spoken to about his behavior, he continued to act inappropriately. (Tr. V.I at 19.) According to Chief Serpa, Del Santo had engaged in a "pattern of behavior that is unacceptable under law enforcement standards." Id. at 17-18. Chief Serpa actually testified that he feared "that some day he's [Del Santo] going to go out and do something that's really going to be crazy." Id. at 19. The Committee addressed these concerns and specifically recognized the severity of both the charges brought against Del Santo and the penalty imposed.9 In deciding to terminate Del Santo from employment with the Department, the Committee found the following:
"The public's trust in its' [sic] law enforcement officers is not something to be taken lightly, and Ptlm. Del Santo has violated that trust. As police officers, we are held to a higher standard, and it can be argued that a DARE officer entrusted with the teaching of children, he must be held to a higher one still. However, his unethical, immoral and offensive behavior has tarnished the reputation of the Bristol Police Department. Citizens contacting police for assistance must not be left to concern themselves with whom the responding officer is, or what his actions will be." (Decision at 4.)
This Court finds that the Committee's decision to terminate is amply supported by the reliable, probative, and substantial evidence in the record and by the Committee's findings of fact. As will be discussed in greater detail below, substantial evidence supports the Committee's decision to sustain the six charges brought against Del Santo, indicating that Del Santo embarked upon a pattern of behavior that was inappropriate for a law enforcement officer.
i. Charge 1: Conduct Unbecoming a Police Officer
Del Santo was first charged with violating Rule IV. B. for engaging in conduct unbecoming a police officer for maintaining a sexual relationship, while as a D.A.R.E. Officer, with the parent of children in the D.A.R.E. Program. The Committee sustained this charge, finding that Del Santo partook in conduct unbecoming an officer by having a sexual relationship with Zimmerman and by engaging in oral sex/intercourse while both on and off-duty. The Court finds the decision is supported by substantial evidence.
Zimmerman testified to the Committee in great detail about her nine month relationship with Del Santo. She explained to the Committee how she met Del Santo through her son, who was a student in his D.A.R.E. program. (Tr. V.I. at 28, 46.) She described how she and Del Santo would often engage in sexual activity while Del Santo was on-duty and how he would report to the Department that he had been helping her with her children.Id. at 30-31. She went on to testify that on certain occasions, she and Del Santo would meet to have sex in the Walley School, and that one evening she arrived there injured, and although on duty at the time, Del Santo did not offer to provide her with medical attention. Id. at 32-34. Zimmerman also testified that as the relationship was on the verge of becoming public, Del Santo asked her to lie to investigating officers to conceal their relationship. Id. at 36.
In contrast to Zimmerman's account of the relationship, Del Santo testified that he felt as if he were being stalked and was the victim of Zimmerman's harassment. (Tr. V.II at 93.) However, when the testimony of two witnesses appears to be inconsistent, the Committee is allowed to engage in credibility determination. When the Committee makes a finding of fact based on credibility, this Court on review has no authority to reassess the witnesses' credibility on a cold record. See Environmental ScientificCorp. v. Durfee, 621 A.2d 200, 206 (R.I. 1993) ("observations of live testimony necessarily enter into a determination of what the trial judge believes and disbelieves. . . . Before disturbing findings based on credibility determinations, the appellate division must first find that the trial judge was clearly wrong") (internal citations omitted)). Here, the Committee did not find Del Santo's description of the relationship to be credible and found that "[t]estimony by Mr. Del Santo that he was the `victim' of Zimmerman's `stalking' rang hollow, as he made no attempts to `protect himself'10 within the system he had worked in as an officer for over fifteen years, and repeatedly contacted her throughout." (Decision at 2.)
The record demonstrates that the Committee's credibility determinations were not clearly wrong. Del Santo admitted that he had engaged in sexual relations with Zimmerman while a D.A.R.E. officer, yet at certain times he told others that there was no relationship between the two. Compare Tr. V.II at 87-89 (admitting that he had oral sex with Zimmerman on at least four occasions) with Tr. V.II at 110 (testifying that when questioned by Sergeant Cotente about the relationship, he responded that nothing was going on); see also, Tr. V. III at 41 (admitting he had lied when he stated that he and Zimmerman never had sex). As the Committee held, "[Del Santo's] repeated inconsistencies and lapses of memory throughout the investigation(s), and subsequent testimony called [his] credibility into question." (Decision at 4.) Similarly, even if Del Santo was found to be credible, he testified that on occasions he had sexual relations with Zimmerman, who had a child in the D.A.R.E. program. (Tr. V.II at 87-88.) Importantly, when asked if he believed he was acting or conducting himself in a manner unbecoming an officer when he engaged in sexual relations with Zimmerman, Del Santo responded "Yes." Id. at 151.11 It therefore follows that substantial evidence supports the Committee's decision that Del Santo committed conduct unbecoming of an officer.
ii. Charge 2: Obedience to Orders, Rules and Regulations
The Committee next found that Del Santo knowingly and willfully failed to obey the order given to him by Lt. Josue D. Canario on March 17, 2003, prohibiting Del Santo from having contact with Zimmerman as to the investigation that was being conducted. It is undisputed that Del Santo contacted both Zimmerman and her son subsequent to his March 17 meeting with Canario.12 Del Santo contends however, that Canario's March 17 directive was not an order but only a suggestion. However, this Court finds that there was substantial evidence in the record for the Committee to find that Del Santo understood that he was being ordered to refrain from contacting Zimmerman on March 17, and that he willfully disobeyed this order.
At the July 19, 2005 hearing, Canario testified that he "ordered" Del Santo not to have any contact with Zimmerman or anyone else pertaining to the investigation. (Tr. V.I at 94.) When asked if he believed whether Del Santo understood the order, Canario responded: "Absolutely. He's a 16-year veteran, 15-year veteran of the police department; he understood it very clearly."Id. The Committee found Canario to be credible and Del Santo to be "not credible" and stated the following:
"Ptlm. Del Santo's testimony that he did not understand the order given to not have contact with involved parties to be a `direct order' was found to be `not credible.' As a senior officer in the department, and given the seriousness of not only Zimmerman's — but his claims as to the fact of the matter, a reasonable person would conclude that he was aware of his obligations." (Decision at 2.)
Accordingly, Canario's testimony that Del Santo understood the order and the uncontroverted fact that Del Santo did indeed contact Zimmerman subsequent to Canario's order serves as substantial evidence to support the Committee's finding that Del Santo willfully and knowingly violated a direct order.
iii. Charge 3: Conduct Unbecoming an Officer/Charge 4:Appearance and Behavior
This Court further holds that there is substantial evidence in the record to uphold the Committee's decision that Del Santo violated the Department's Rules and Regulations by engaging in conduct unbecoming an officer13 and for behaving inappropriately while in public.14 Souza testified that on at least three occasions, Del Santo made inappropriate sexual remarks to her, and some of these remarks occurred in the presence of others. Souza maintained that in September 2004, Del Santo asked her to go behind one of the campus' buildings so they could take pictures of each other and later commented to her that she did not like to wear seatbelts because of the size of her breasts. (Tr. V.I at 113-15.) Souza further testified that in February 2005, while at the University's guard station, Del Santo told her that if she "pulled out a boob," she could win a prize at a local bar's hot body contest, and that if she "took it all off" she could possibly make several hundred dollars. Id. at 117-18. This last comment was made in the presence of others, including Officer Dunning, who was not comfortable with Del Santo's presence and asked him to go elsewhere. Id. at 118-19.
Del Santo admitted telling Souza that if she pulled out her breast she could win the hot body contest, and that there were other people present in the Security Office at the time this comment was made. (Tr. V.II at 147.) As to the remaining comments of which Del Santo was accused, Del Santo simply testified that he could not recall making them, but at the same time, he stated that he did not want his testimony to imply that he was calling Souza a liar. Id. at 149; Tr. V. III. at 48. Consequently, the Committee concluded that these memory lapses weakened Del Santo's credibility and found that Del Santo, while on duty, acted unprofessionally and engaged in conduct unbecoming a police officer for his inappropriate and harassing comments to Souza. Souza's testimony, therefore, is reliable credible evidence which support's the Committee's findings.
iv. Charge 5: Obedience to Orders, Rules and Regulations/FalseStatements
The Department further charged Del Santo with violating the Rules and Regulations by withholding information as to the truth of the alleged incidents involving Kathleen Souza, which could have assisted in resolving the complaint that was under investigation. This finding is supported by substantial evidence. First, the Court heard, and found credible, Souza's testimony that Del Santo made numerous sexually harassing comments to her. The Court then heard testimony from Lieutenant Nick Guercia. Guercia testified that when he investigated Del Santo and questioned him on his comments, Del Santo admitted to telling Souza she could win the hot body contest if she showed her breast, but could not recall making the other comments. (Tr. V. II at 57-58.) Geurcia then concluded that Del Santo "was not being truthful." Once again, the Committee was permitted to make credibility determinations and held that Del Santo's testimony, in which he stated that he simply could not recall his conversations with Souza, lacked credibility. (Decision at 3.) ("[Del Santo] regularly stated that he could not recall the context of comments, or conversations, and made repeatedly inconsistent statements to Lt. Geurcia in his report, showing a lack of credibility, and raising doubts as to his truthfulness.") Accordingly, finding the testimony of Souza and Geurcia credible, the Committee had before it substantial evidence that Del Santo provided the Department with false statements, impeding their investigation into the matter, thereby acting in violation of the Rules and Regulations.
v. Charge 6: Neglect of Duty
Del Santo was found to have violated Rule IV. J. for neglecting his duties as an officer by engaging in entertainment while on duty, which was not required in the performance of his duties. In particular, the Committee found that Del Santo engaged in computer entertainment at the Roger Williams University Security Office. As Del Santo never denied this charge, the parties stipulated that Del Santo did indeed engage in computer entertainment while on duty.
As substantial evidence supports the Committee's decision to sustain all of the charges brought against Del Santo, the Committee could reasonably conclude that Del Santo engaged in a pattern of behavior warranting his termination from employment. This pattern of outrageous behavior was clearly demonstrated by the Committee's findings. The Committee found that Del Santo had engaged in oral sex/intercourse on several occasions while both on and off duty. (Decision at 2.) The Committee further found that on one occasion, Zimmerman met with Del Santo while he was on duty, and although Zimmerman was injured at the time, Del Santo did not offer medical attention for fear the relationship may have been exposed. Id. Additionally, the Committee found that Del Santo deliberately disobeyed orders and gave false statements to his supervisors. Id. at 2-3. These findings, amongst others, which were supported by substantial evidence in the record as discussed above, demonstrate a rational relation between the findings of misconduct and the sanction imposed. Del Santo's behavior, as Chief Serpa testified, was progressively becoming worse as his inappropriate sexual comments continued even after he was cautioned about his behavior following the Zimmerman incident. By failing to follow orders, engaging in sexual activity while on duty, making inappropriate comments, and failing to provide medical attention to an injured person while on duty, the Committee found that Del Santo tarnished the reputation of the Department. Accordingly, the Committee did not abuse its discretion when it determined that the appropriate penalty in this matter was termination from employment.
Conclusion
While a complete version of the Rules and Regulations and the Mission Statement should not have been admitted into evidence, the Rules and Regulations which Del Santo was found to have violated were appropriately in the record. Accordingly, any procedural error committed by the Committee did not violate Del Santo's substantial rights. Further, the Court finds that substantial evidence in the record supports the Committee's decision to sustain the six charges, and the Committee did not abuse its discretion by holding that Del Santo should be terminated for his offenses. Accordingly, the Committee's decision is affirmed. Counsel shall prepare an appropriate order for entry, consistent with this Decision.
1 Zimmerman testified that at D.A.R.E. Day, she had been sitting with her children when she expressed her desire for a cigarette. Del Santo then asked her children to move because he had something dirty to tell their mother. Del Santo then whispered something to the effect that a good time to have a cigarette is after good sex. When Zimmerman replied that she had not had sex since her husband had left her, Del Santo stated, "Well, I could always take you downstairs." (Tr. V.I at 53.)
2 Zimmerman testified, though, that she corrected the statement right after saying it and told the police that the sex had been consensual. Id. at 56.
3 Zimmerman apparently heeded this advice, for when she was interviewed by the Bristol Police Department on March 18, 2003, Zimmerman told the officers that nothing had happened between her and Del Santo, and that she had simply forgotten to take her medication. (Tr. V.I at 67.)
4 Del Santo later testified that of the above incidents, he only recalled making the comment regarding "pulling out a boob" and did not remember any of the other statements. Del Santo did not actually claim that he did not make the comments Souza alleged, only that he could not remember them. He testified: "I never said Kathleen Souza was lying. I don't remember the conversations she's alluding to. . . . I don't remember that conversation taking place. I'm not calling her a liar." (Tr. V. III at 48.)
5 In Hooper, the hearing tribunal was allowed to take notice of the police department's regulations because the Court found that a municipal tribunal may recognize the regulations of the municipality which created it. There, the municipality that promulgated the police rules also created the hearing tribunal. Here, however, such a relationship does not exist between the Hearing Committee and the Town of Bristol, because the Town of Bristol did not create the Law Enforcement Officer's Hearing Committee.
6 Rhode Island General Law 1956 § 42-28.6-11(c) places the burden of proof upon the charging law enforcement agency and requires the following:
"In any proceeding under this chapter, it shall be the burden of the charging law enforcement agency to prove, by a fair preponderance of the evidence, that the law enforcement officer is guilty of the offense(s) or violation(s) of which he or she is accused."
7 It is true that the Department did know how to use more explicit language. When providing Del Santo with a list of its potential witnesses, the Department issued forth a letter with language stating: "Pursuant to the Law Enforcement Officers' Bill of Rights SECTION 42-28.6-1 the Bristol Police Department is providing a list of potential witnesses that may testify at your hearing scheduled for June 20, 2003. The names are as follows:. . . ." (Town's Ex. 3.) While such language is indeed useful and clearly demonstrates compliance with § 42-26.8-5, such exact language is not required so long as a list of the evidence is provided and it is clear that such evidence will be used at the hearing.
8 Del Santo did testify, though, that early in his career, he was investigated for a possible child abuse case, but the charge was unfounded. Additionally, in or around 1996 or 1997, Del Santo was suspended for two days for using Department letterhead without permission. (Tr. V.II at 77-79.)
9 The Committee stated: "The enormous responsibility of this commission was not taken lightly by any member of the panel." (Decision at 1.)
10 Del Santo stated that he was afraid of Zimmerman and the potential consequences from the relationship, yet he never requested a restraining order and he continued to go to her apartment alone. (Tr. V.III at 38-39.)
11 Furthermore, during his closing argument, counsel for Del Santo even stated at the July 22, 2005 hearing that "[t]he employer has sustained its burden of the charge, naturally conduct unbecoming in that he engaged in a sexual relationship." (Tr. V. III at 68.)
12 Del Santo testified that he called Zimmerman on March 17 and 18, 2003, and on March 19, 2003, he visited with and spoke to Zimmerman's son at the son's school. (Tr. V. II at 114-17, 119-20.)
13 Rule IV. B. provides: "Conduct Unbecoming: Officers shall conduct themselves at all times, both on and off duty, in such a manner as to reflect favorably on the department. `Conduct unbecoming an officer' shall include that which brings the department into disrepute or reflects discredit upon the officer as a member of the department, or that which impairs his or her ability to perform as a law enforcement officer."
14 Pursuant to Rule V.H.1 governing the public appearance of the Department's officers, "[w]henever on duty or in uniform, each employee shall maintain a professional demeanor, conduct and appearance. They shall avoid inappropriate conduct, including but not limited to horseplay, deliberately erratic vehicle operation for no legitimatepurpose, sexual harassment, use of profanityor vulgarlanguage, insubordination, or other behavior that would cause public disgust or alarm." | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2621323/ | 31 Kan. App. 2d 45 (2002)
59 P.3d 1039
STATE OF KANSAS, Appellee,
v.
RANDALL RAY SPRINKLE, Appellant.
No. 87,297
Court of Appeals of Kansas
Opinion filed December 27, 2002.
Nathan B. Webb, assistant appellate defender, and Randall Hodgkinson, deputy appellate defender, for appellant.
*46 Keith E. Schroeder, county attorney, and Thomas R. Stanton, deputy county attorney, for appellee.
Before BEIER, P.J., PIERRON, J. and PADDOCK, S.J.
BEIER, J.:
Randall Ray Sprinkle was convicted of 14 counts of nonresidential burglary. He appeals the imposition of his dispositional departure sentence, arguing that his employment as a police officer did not place him in a fiduciary relationship with his victims.
Sprinkle was apprehended approximately 1 year after leaving the Hutchinson Police Department (HPD), where he had attained the rank of sergeant. He committed three of the burglaries to which he ultimately pleaded no contest before he left the police force.
Sprinkle's criminal history was I, making the range for each offense 11 months to 13 months. His presumptive sentence was probation, but the State moved for an upward dispositional departure. It argued that Sprinkle's employment made him a fiduciary of the public and constituted a substantial and compelling reason to send him to prison. K.S.A. 2001 Supp. 21-4716(b)(2) provides a nonexclusive list of aggravating factors that may be considered in arriving at an upward dispositional departure. They include: "The offense involved a fiduciary relationship which existed between the defendant and the victim." K.S.A. 2001 Supp. 21-4716(b)(2)(D).
James Rayburn of the HPD testified Sprinkle was a commissioned officer. Such officers must take an oath to protect and serve the public and uphold the laws. Two men from the community, each of whom owned a business burglarized twice by Sprinkle, spoke about the impact of the burglaries on their lives. Neither said he knew Sprinkle personally or had given him information about the business or its security system or procedures because of Sprinkle's status as a police officer. Nevertheless, the State argued Sprinkle gained specialized knowledge about committing burglaries through his position with the police force. Sprinkle, for his part, argued that the creation of a fiduciary relationship requires two persons, rather than one person and the public in general.
On the way to his ruling, the district judge noted that Sprinkle's employment clothed him with additional authority and respect and that penalties for crimes are enhanced if they are committed *47 against police officers. He also said he could not separate the felonious conduct in which Sprinkle engaged from the knowledge of criminal methods Sprinkle must have gained through 25 years of experience on the police force. These factors led the district judge to conclude that a police officer does have a fiduciary relationship with the members of the community he or she has sworn to protect. The judge therefore sentenced Sprinkle to 12 months' imprisonment on each count. The first three counts, covering burglaries committed when Sprinkle was still employed by HPD, were concurrent with each other. The remaining 11 counts were concurrent with each other and consecutive to the first three counts.
On appeal, Sprinkle continues to challenge the equation of his status as a police officer or former police officer with a fiduciary relationship to members of the public, his victims.
"`Whether the trial court's findings constitute substantial and compelling reasons for departure is a question of law. The question in this analysis is twofold. First, is a particular reason given by the sentencing court a valid departure factor? Second, are the reasons, as a whole, substantial and compelling reasons for departure in a given case? Reasons which may in one case justify departure may not in all cases justify a departure. Rather, the inquiry must evaluate the crime and the departure factors as a whole to determine whether departure in a particular case is justified. It is a question of what weight to give each reason stated and what weight to give the reasons as a whole in light of the offense of conviction and the defendant's criminal history. The inquiry also considers the purposes and principles of the KSGA.' [Citation omitted]." State v. Tiffany, 267 Kan. 495, 504-05, 986 P.2d 1064 (1999).
The only Kansas case that has applied the fiduciary relationship aggravating factor is State v. Ippert, 268 Kan. 254, 995 P.2d 858 (2000). In Ippert, the defendant was convicted on several counts of rape and aggravated indecent liberties, crimes perpetrated against his young son and daughter over a period of several years. Evidence demonstrated the defendant also had told the children he would commit suicide if they revealed the abuse.
The Supreme Court held these facts supported application of this particular aggravating factor. The defendant had violated his children's trust and used his unique position to commit the crimes and keep them secret. 268 Kan. at 262-63. Like the statute itself, *48 the Ippert opinion did not explicitly define the phrase "fiduciary relationship" in the upward departure setting.
In Denison State Bank v. Madeira, 230 Kan. 684, 640 P.2d 1235 (1982), a civil case involving a bank and its debtors, two types of fiduciary relationships were identified: (1) those specifically created by contract, "and (2) those implied in law due to the factual situation surrounding the involved transactions and the relationship of the parties to each other and to the questioned transactions." 230 Kan. at 691. Although one might argue that Sprinkle, a police officer paid with tax dollars, had a contract with the public, we are confident that interpreting the statute to cover any situation in which any government employee who commits any crime that injures any member of the public in any way gives it a breadth unintended by the legislature. Thus, if a fiduciary relationship existed between Sprinkle and his victims in this case, it, like the fiduciary relationship in Ippert, must have had its genesis in the peculiar facts of the burglaries and the parties' relationships to one another and to the burglaries. In the language of Denison State Bank, the relationship would have to be "implied in law."
The Denison State Bank decision referenced several general principles to be considered in determining whether a particular factual situation gives rise to such a fiduciary relationship:
"A fiduciary relationship imparts a position of peculiar confidence placed by one individual in another. A fiduciary is a person with a duty to act primarily for the benefit of another. A fiduciary is in a position to have and exercise, and does have and exercise influence over another. A fiduciary relationship implies a condition of superiority of one of the parties over the other. Generally, in a fiduciary relationship, the property, interest or authority of the other is placed in the charge of the fiduciary." 230 Kan. at 692.
Our Supreme Court also has discussed a more general abuse of a trust relationship as an aggravating sentencing factor when a defendant was not involved in law enforcement. In State v. Gideon, 257 Kan. 591, 894 P.2d 850 (1995), the defendant and the victim worked at a restaurant in Pittsburg. The victim accepted a ride home from a social gathering with the defendant, and he kidnapped, raped, sodomized, and murdered her. Upon conviction, he received an upward durational departure sentence on three of *49 the charges. 257 Kan. at 594-95. One of the reasons cited for departure was the advantage he had taken of his victim's trust. 257 Kan. at 623.
The Supreme Court looked to three cases from two other jurisdictions for guidance. It found State v. Hamilton, 348 N.W.2d 112 (Minn. App. 1984), distinguishable because the defendant in that case was the rape victim's stepfather. This meant he had a much closer relationship with his victim than Gideon had with his. In both State v. Campas, 59 Wash. App. 561, 799 P.2d 744 (1990), and State v. Strauss, 54 Wash. App. 408, 773 P.2d 898 (1989), the Washington appellate court concluded the available evidence was insufficient to find an abuse of trust, although "mere acquaintances" might form a trust relationship. Gideon, 257 Kan. at 627.
The Supreme Court ultimately concluded in Gideon that an abuse of trust was not supported by the evidence. The defendant and victim had no substantial ongoing relationship. 257 Kan. at 627. "A departure factor of `trust' is not equivalent to the statutory factor of `fiduciary relationship.' The relationship between the defendant and the victim, although not a designated statutory factor, is relevant in determining whether a departure sentence is warranted." 257 Kan. at 627. To warrant an upward departure sentence, the degree of trust "must be a higher degree of trust than is present here. We think of trust as involving the relationship between a child and a parent, stepparent, or, for example, a church or boy scout leader." 257 Kan. at 627.
We also may look to other jurisdictions that have dealt with whether a police officer's violation of the public trust or a more general abuse of trust justifies an enhanced sentence.
In State v. Elliget, 177 Ariz. 32, 864 P.2d 1064 (Ct. App. 1993), rev. denied (January 11, 1994), the defendant police officer was convicted of two sexual offenses with a minor. His plea agreement stipulated to lifetime probation for one charge and a prison term for the other charge. The trial court sentenced him to 14 years' imprisonment, the upper limit of the permissible range, relying upon a statutory provision allowing an enhanced sentence if "`the defendant was a public servant and the offense involved conduct *50 directly related to his office or employment.'" (Emphasis added.) 177 Ariz. at 35 (quoting Ariz. Rev. Stat. Ann. § 13-702[D][8]).
The appellate court viewed the trial court's reliance on the aggravating factor in Ariz. Rev. Stat. Ann. § 13-702(D)(8) as error because it made no factual finding that defendant's conduct was directly related to his employment as a police officer. 177 Ariz. at 35. However, the trial court had also relied upon a catch-all clause that allowed it to consider any other factor that it deemed appropriate to "the ends of justice." 177 Ariz. at 35 (citing Ariz. Rev. Stat. Ann. § 13-702[D][13] [Supp. 1992]). Under that factor, the trial court "found that defendant had taken an oath as a police officer to uphold the law, and violated that oath, and that such misconduct undermined public confidence in law enforcement, justifying an aggravated sentence to deter similar conduct." 177 Ariz. at 36. The trial court could properly consider as aggravating, under Ariz. Rev. Stat. Ann. § 13-702(D)(13), the special injurious consequences to the community resulting from a crime committed by a police officer. 177 Ariz. at 36.
A similar result was reached in Indiana in Marshall v. State, 643 N.E.2d 957 (Ind. App. 1994), transfer denied January 1, 1995. In that case, the defendant was a deputy marshal who lived in the same mobile home park as the 14-year-old victim of his sexual assault. The victim had babysat for defendant's children, liked him, and thought she could trust him. After telling him that she had used marijuana and alcohol, the victim, the victim's mother, and the defendant agreed to have defendant counsel the victim about drugs and alcohol. The assault occurred during a counseling session at the defendant's home. 643 N.E.2d at 958-59.
The defendant later challenged his prison sentence, arguing there were no aggravating factors that would have precluded a suspended sentence and probation. The appellate court noted the defendant's status as a law enforcement officer, his position of trust with the victim and members of the community, and his breach of that trust. Such a breach was a valid aggravating factor allowing the trial court to impose the prison sentence. 643 N.E.2d at 963.
In the Louisiana case of State v. Weil, 507 So. 2d 16 (La. App. 1987), the defendant was a police officer convicted of possessing *51 stolen property. He challenged his sentenced to 1 year in prison with hard labor, although the maximum sentence was 10 years with hard labor. 507 So. 2d at 16-17. The trial court found that, although his crime did not involve use of his law enforcement status, he had abused the public trust. The appellate court upheld the sentence as well within the lower range of sentencing alternatives and supported by the trial court's findings. 507 So. 2d at 17.
In State v. Harding, 62 Wash. App. 245, 813 P.2d 1259, rev. denied 118 Wash. 2d 1003 (1991), the Washington appellate court rejected the idea that there must be a direct relationship between the perpetrator and the victim in order to enhance a sentence because of a more general abuse of trust. In that rape case, the defendant was a son of an apartment manager and had a master key for the purpose of occasional cleaning. He did not know the tenant victim or have any direct personal relationship with her. The trial court concluded the defendant had used the master key to enter the tenant's apartment, and the court handed down an enhanced sentence as a result.
The appellate court upheld the result and endorsed the trial court's supporting rationale of abuse of trust. No direct personal relationship was necessary. "In our modern world, people routinely put their trust in organizations (such as the management of an apartment complex) without knowing the individuals who will carry out the tasks entrusted to the organization." 62 Wash. App. at 249.
Here, the trial judge stated that Sprinkle's knowledge and "inside information" assisted him in committing the burglaries. This finding tracked the State's argument that Sprinkle, as a police officer for approximately 25 years, had to possess more knowledge than the average person about how to commit a successful crime. The trial judge also relied upon his view that a fiduciary relationship existed because law enforcement officers are granted more authority than members of the public.
The trial judge's upward dispositional departure went beyond what the statute authorizes and what the Supreme Court would condone. Neither general knowledge regarding criminal behavior gained through experience as a law enforcement officer nor the degree of authority granted to such officers as a matter of course *52 establishes a violation of an implied fiduciary relationship under Ippert or a more general abuse of trust under Gideon.
In Ippert, the defendant's status as the victimized children's father gave rise to a duty of support as well as protection. The children were dependent upon him in every way emotionally, physically, and financially. Although trust and a duty of protection also existed between Sprinkle and the individual members of the public who eventually became his victims, those persons were not dependent upon him in nearly as many ways or to nearly the same degrees that Ippert's children were dependent upon him. There was no "peculiar confidence placed by one individual in another." Denison State Bank, 230 Kan. at 692. We cannot find a fiduciary relationship implied in law between Sprinkle and his victims "due to the factual situation surrounding the involved transactions and the relationship of the parties to each other and to the questioned transactions." Denison State Bank, 230 Kan. at 691. There is no proof Sprinkle capitalized on his official relationship with the victims to maximize the success of his criminal pursuits.
This also was not a situation in which a more general abuse of trust was demonstrated under Gideon. That decision indicates our Supreme Court would apply a more demanding test than that applied in at least Arizona, Louisiana, and Washington. We hold that it is not sufficient for the State to prove only that a defendant was a police officer or that he or she occupied a position of merely theoretical trust. The defendant must have had a direct, personal relationship of some duration with the victim, one that would have led the victim to place the trust eventually betrayed.
In this case, there is no evidence that Sprinkle had such a relationship with any of the victims in this case. There is no evidence that he used his position as a police officer to acquire specific, individualized information about any particular victim or the security of that victim's business. There is nothing beyond the speculative argument of the State to support an upward dispositional departure for an abuse of trust. That is insufficient.
Finally, Sprinkle also argues on appeal that the district judge's imposition of an upward dispositional departure sentence violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. *53 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). Because this case must be remanded for resentencing, we briefly address this issue.
Our Supreme Court rejected Sprinkle's argument in State v. Carr, 274 Kan. 442, 53 P.3d 843 (2002). We are in no position to dispute its holding.
Reversed and remanded for resentencing. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3410982/ | This action was instituted by respondent against appellants, its object being to impress a certain tract of land with a trust for the purpose of carrying out an agreement of Robert C. Aikens to will the land to respondent in consideration of and compensation for certain services rendered by the latter to the former.
The essential facts involved are as follows: Robert C. Aikens, a bachelor, was about the age of 77 years in June, 1914. He was at that time, and for long prior thereto had been, the owner and in the possession of the land in controversy and other property. He had become bodily infirm and physically unfit to farm, or properly care for his property and business. Besides an 80-acre farm near Weiser, Idaho, he owned some residential properties at Baker, Oregon, which he rented. Respondent, his nephew, resided at Baker, and was engaged in a wholesale and retail mercantile business there. Aikens reposed the utmost confidence in the business ability and integrity of respondent, and cherished real love and affection for him. On June 12, 1914, Aikens executed and published a will, wherein, among other legacies with which we are not concerned, he devised one forty of his Idaho ranch to respondent. On or about July 4, 1914, thereafter, he delivered this will to respondent for safe-keeping, and at this particular time made an oral agreement that this land was to be devised to respondent in consideration of respondent managing his uncle's business and attending to all the details thereof. This was to be in full compensation for services theretofore rendered and to be thereafter rendered for said Aikens during the remainder of his life. These duties, it was mutually agreed, were to consist of renting the properties, collecting rents, paying taxes, *Page 802
keeping buildings insured and in repair, making settlements with tenants, paying over profits and returns to Aikens, and the doing of all other things connected with and incident to the proper management of these various properties. The agreement did not contemplate the furnishing of board, lodging or medical attention, but was confined to the management of the business affairs of the uncle. This final agreement was the culmination of an intention often previously expressed by Aikens, that he intended to devise this land to respondent in payment of similar services rendered during the past and those which were to be rendered in the future.
Relying upon this contract, and never at any time having received any remuneration, the respondent continued to perform these duties up to the time of the death of Aikens. The uncle lived, at various times, in Idaho, Oregon and California, portions of the time with the mother of respondent, and for short intervals even in the home of respondent. While residing with respondent, Aikens always paid for his board at a stipulated price per week. The will remained in the custody of respondent for years, but eventually was taken from the custody of respondent by Aikens, and has never since been produced, although a copy thereof was used at the trial to prove its contents.
Some time in the fall of 1923, Aikens left Baker, Oregon, he then being approximately 87 years old, going to Boise, to the home of one Robert Doherty Aikens, one of the appellants who was a grandnephew, where he remained until his death. On December 29, 1923, in violation of his agreement with respondent, by warranty deed he conveyed this identical 40-acre tract to appellant, and made and published a new will, by one of the clauses of which he bequeathed to respondent the sum of $1,000 in lieu of the 40 acres devised to respondent under the first will.
On January 15, 1924, Robert C. Aikens died, leaving an estate free from debt or encumbrance, aggregating approximately $20,000. The 40 acres in question was worth about $6,000. When the last will was admitted to probate, respondent *Page 803
renounced the legacy of $1,000, and brought this suit, in one cause of action of which he asks for specific performance of the contract made with him as aforesaid, and in the other cause of action he asks that the deed dated December 29, 1923, given by deceased to appellant, be canceled and held for naught. The appellants, in their answer, among other things deny the contract above mentioned, and deny all the material allegations of the second cause of action, and by way of cross-complaint seek to quiet their title to said land against the claim of respondent. This appeal is from the decree entered for respondent.
In view of what we conceive to be the law, it will be futile to pass upon many of the assignments of error urged by appellants. It is seriously contended that the alleged contract to devise the 40 acres to respondent was not sufficiently established by the testimony of disinterested witnesses. It is unquestionably the law that the proof of such a contract must be clear, cogent and convincing, and that the making of such an agreement must be established by disinterested witnesses. In this case, there was the testimony of various disinterested witnesses as to statements made to them by the deceased that respondent was to get this property, and that deceased had willed it to respondent. A will was actually executed devising it to respondent, and he rendered services without compensation for many years; and in fact all the circumstances tend to corroborate respondent's testimony to the effect that such a contract was in fact made. There is no evidence even tending to negative the existence of such a contract, although the corroboration by the disinterested witnesses is not as positive and clear as it possibly might be as to all the terms of the contract.
"The rule requiring a plaintiff seeking reformation of a contract or a specific performance to establish his case by clear and satisfactory evidence is a rule by which the trial court is to weigh and consider the evidence, and unless that rule has been substantially departed from by the trial court in arriving at his decision, the appellate court will not disturb *Page 804
the findings and judgment." (Panhandle Lumber Co. v. Rancour,24 Idaho 603, 135 P. 558.)
Again, in Bedal v. Johnson, 37 Idaho 359, 218 P. 641, this court held that the rule that the terms and existence of the contract must be proven by clear and convincing evidence, is one primarily for the trial court, and if the court finds on substantial or conflicting evidence that such rule has been complied with, its findings will not be disturbed on appeal. For the purposes of this opinion, we will therefore concede and hold that the contract set forth in the complaint was in fact made, and that it was a fair one, and that it was carried out in all its terms by the respondent.
The paramount issue in this case is whether or not this particular contract should be specifically enforced by the court. A will is ordinarily ambulatory and revocable at any time before the testator's death, and this is so although delivered to the person beneficially interested. However, where a will has been made pursuant to a valid contract, the testator cannot by revocation escape the obligations of his contract. Restitution must be made to the other contracting party by compensation in damages for the breach of the contract if pecuniary compensation can be had, and specific performance will only be decreed in the absence of a remedy at law.
Performance of services of such a character that their value cannot be estimated by a pecuniary standard is required to permit a decree of specific performance. There seems to be entire harmony in the authorities on this proposition, and we will only cite a few stating this rule: Owens v. McNally,113 Cal. 444, 45 P. 710, 33 L.R.A. 369; Hayden v. Collins,1 Cal.App. 259, 81 P. 1120; Morrison v. Land, 169 Cal. 580,147 P. 259; Christin v. Clark, 36 Cal.App. 714,173 Pac. 109; Zellner v. Wassman, 184 Cal. 80, 193 P. 84; Hoytv. Thomas, 58 Cal.App. 14, 207 P. 1038; Swedish EvangelicalFree Church v. Benson, 77 Colo. 370, 237 P. 165; Schoonoverv. Schoonover, 86 Kan. 487, 121 P. 485, 38 L.R.A., N.S., 752; Whitman v. Dittman, 154 Minn. 346, 191 N.W. 821; Olsen v.Dixon, 165 Minn. 124, *Page 805 205 N.W. 955; Mathews v. Tobias, 101 Or. 605,201 Pac. 199.
In the case of White v. Smith, 43 Idaho 354, 253 P. 849, this court recently said that ". . . . While the services performed in the home by respondent in the way of household duties might possibly have been compensated in money, those things that respondent gave up and the value of respondent living with the deceased as his child are impossible of measurement in money value, and the respondent cannot be placedin statu quo. The only way possible of compensating respondent is by specific performance of the contract . . . ., and the court did not err in decreeing specific performance of the contract."
In Morrison v. Land, supra, it was held:
"As specific performance of a contract will be granted only where the legal remedy is inadequate, specific performance of a contract to make a money bequest by a will in consideration of plaintiff's continuing to act as assistant manager of deceased's hotel cannot be had; for the legal action for damages affords complete relief."
In Whitman v. Dittman, supra, the court said: "If the consideration be labor and services which may be estimated and liquidated in money, so as reasonably to make the promisee whole, the case is not taken out of the statute," — and in that case specific performance was denied.
The well-settled rule, therefore, is that an oral agreement to devise real estate will be specifically enforced in equity, without reference to the statute of frauds, and regardless of the question whether or not the promisee has been in possession of the property, where the latter has fully complied with the contract and compensation for such services cannot be computed in an action at law; and hence to deny relief in equity by specific performance would result in the perpetration of a fraud on the promisee.
In practically all the cases where specific performance was decreed the contracts called for the performance of duties of a filial and intimate personal nature, the value of which could not be estimated. This, of course, presents *Page 806
an entirely different question, and such authorities are not in point in this case. Here the deceased or promisor was not to live in the family of the respondent, and no close, intimate or filial relationship was to exist. The contract simply required respondent to look after the business of the deceased. He was to handle the farms and various properties, receive and disburse moneys, and in general act as the business advisor and assistant of the owner. He was required to render no service that an ordinary real estate agent or factor could not and does not perform for his clients. This was not a contract for the personal care of an aged person, where great patience with his infirmities was required, contemplating not only food, medicine and clothing, but good temper, forbearance, and honest effort to please, and an intimate family relationship; but was simply a business arrangement for the management and care of the property of the deceased.
Had this contract never been entered into, could respondent recover fully for his services? Could deceased have taken the management and control of the property away from respondent at any time after making this agreement? Suppose Aikens had lived, could not respondent have sued for and recovered the value of his services? Certainly he would have had a remedy at law under such circumstances. Why, then, has he not a remedy at law for the breach of the contract involved in this action?
In the case of Hoyt v. Thomas, supra, the plaintiff contracted to take care of and manage the business of deceased, and also to render such aid and assistance as was in his power during any illness. The court conceded that the contract was fair, and said:
"We are unable to perceive anything unusual or out of the ordinary in the character of the services which plaintiff agreed to perform for deceased, or why, upon proper proof, they could not be adequately compensated for in money. In character they are such as are of every-day occurrence and usually performed upon an express or implied contract for an agreed or implied pecuniary compensation. Hence, since *Page 807
it appears that no relation of a filial or like personal character was created or contemplated by the contract due to and incidental to which plaintiff discharged duties the nature of which made it impossible to estimate their value, but, on the contrary, the services called for thereby, if rendered, were susceptible of measurement and plaintiff compensated in money on account of the breach thereof, specific performance should not be decreed. The fact that plaintiff kept no memoranda and is unable, as he says, to testify as to the time devoted by him in rendering the services, or value thereof, is immaterial. His is the misfortune suffered by any plaintiff who performs services which may be measured in money and is unable to produce evidence of such value, but it furnishes no reason for equitable jurisdiction."
In the instant case, the contract did not even require respondent to render aid or assistance in case of sickness, and otherwise was very similar, in all essentials, to that involved in the last-quoted decision.
This particular farm had no peculiar or special value to the respondent, it being 40 acres of land under cultivation, fenced, and had irrigation works appurtenant, but was without buildings. Its location was of no great or special value. It was not possessed of any peculiar sentimental or ancestral value, or pretium affectionis. He had made no improvements thereon, and had never even been in the actual possession or occupation thereof, except as agent for his uncle.
There is nothing inherently difficult or uncertain in establishing the value of the services rendered under this contract. When a testator, having contracted to devise real estate, afterward conveys the same to another, the court should not decree specific performance unless some imperative reason exists, such as where it is impossible to compensate in money. There is far greater danger, by the establishment of a precedent of decreeing specific performance under circumstances such as those disclosed here, of making possible a fraud on the aged and the weak, and those related to such persons, than of perhaps slight injustice to one who claims against the estate of such persons, where *Page 808
as here ample compensation may be awarded the person performing such services. By proper claim, timely presented, followed by suit if necessary, this respondent could recover on quantummeruit against the estate, and should not be decreed specific performance.
It is immaterial in this case whether there was an adequate consideration for the, execution of the deed to appellant, or whether the deceased had the mental capacity to execute the deed and last will, or whether he was induced thereto by improper or undue influence, since this case hinges solely on the question of respondent's remedy for the breach of this contract. Respondent is not otherwise interested in the estate, there being ample assets therein, exclusive of this 40 acres, to fully pay any claim he may be able to establish as a creditor of the estate.
For the reasons stated, I recommend that the judgment of the lower court be reversed and that the cause be remanded, with directions to enter judgment dismissing respondent's action, and to enter decree for appellants quieting title as prayed for in the cross-complaint.
Babcock and Featherstone, CC., concur.
The foregoing is approved as the opinion of the court. The judgment is reversed and the cause remanded, with directions to enter judgment dismissing respondent's action, and to enter decree for appellants quieting title as prayed for in the cross-complaint. Costs to appellants.
Win. E. Lee, C. J., and Givens, Taylor and T. Bailey Lee, JJ., concur.
*Page 1 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3864301/ | I concur in the decision of the court in this case; but I have been led to my conclusion mainly from the insufficiency of the memorandum, relied on as evidence of the contract, to identify the premises claimed. There is no sufficient description of the premises contained in the writing, nor is there any reference to any other instrument containing such a description as will enable us to locate the land. Without dissenting from the grounds taken by the court in their opinion, I simply say, that this defect in the complainant's case had more weight on my mind in leading me to the conclusion to which the court have arrived.
Bill dismissed with costs. *Page 596 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3411098/ | Proceeding in habeas corpus brought by petitioner and appellant, Gustav Schiller, to obtain the custody of his two minor children from their maternal grandparents, Owen and Pearl Douglas, defendants and respondents. The defendant, Gertrude Reynolds, disclaimed and is not involved.
At the hearing below, neither party having shown any right of custody based upon formal court order, the sole issue submitted was the alleged unfitness of petitioner. From the evidence adduced the court made findings of fact, and concluded as a matter of law that "the petitioner has not shown himself entitled to the possession of his said children, Robert Schiller and Betty Lou Schiller." There was no finding that petitioner had abandoned his children or *Page 806
was unfit, the burden to establish which was upon defendants and respondents.
Under the common law prevalent, in the absence of a contrary statute, the father is the natural guardian of his minor child, and as such entitled to its custody. The fact of parentage having been established, it devolved upon defendants to break down petitioner's prima facie case by the only method known in this jurisdiction, viz., that of showing a forfeiture of petitioner's right or, at least, that he was an unsuitable person. In re Martin, 29 Idaho 716, 161 P. 573, Andrino v.Yates, 12 Idaho 618, 87 P. 787, Jain v. Priest, 30 Idaho 273,288, 164 P. 364, 369, saying: "If the parent fulfills the requirements of sec. 5774, he is entitled to the custody of his child, even though another person may be even more suitable to have the custody." The section cited, now C. S., sec. 7864, reads as follows:
"Either the father or mother of a minor, being themselves respectively competent to transact their own business, and not otherwise unsuitable must be entitled to the guardianship of a minor."
And C. S., sec. 4681, provides:
"The father and mother of a legitimate unmarried minor child are equally entitled to its custody, services and earnings. If either the father or mother be dead or be unable or refuse to take the custody or has abandoned his or her family, the other is entitled to the child's custody, services and earnings."
While the best interest of the child is to be considered, that factor is not controlling in a habeas corpus proceeding. As was succinctly stated by the supreme court of Georgia:
"In the tableau of habeas corpus, the parties are in the foreground and the children in the background: but, in the tableau of guardianship the arrangement is reversed — the child is the principal figure and applicants and caveators are secondary and subordinate." (Janes v. Cleghorn, 63 Ga. 335,339.) *Page 807
Nor, under our statutes, are the best interests of the child wholly controlling in matters of guardianship. While it is of paramount importance, it is not the only matter to be considered in determining to whom the custody of the child should be given. As between a father and a grandparent, a mere finding that the appointment of the grandfather is for the best interests of the minor in respect to its temporal, monetary or moral welfare is insufficient to warrant giving the custody of the minor to the grandparent, where by statute it is made the court's duty to appoint the father or mother, if found competent to discharge the duties of guardian. (Re Campbell'sEstate, 130 Cal. 380, 62 P. 613.)
In Piatt v. Piatt, 32 Idaho 407, 184 P. 470, 472, which was an action for divorce, the trial court awarded the custody of minor children to the grandfather, having found that he was a fit and proper person and that such an award would be for the best interests of the children. Reversing the award the court said:
"In our opinion, this finding of the Court is not sufficient to justify a decree awarding the custody of the children to their grandfather. In addition to this finding, the Court must, before making such an order, also find as a fact, based upon sufficient evidence, that the parents are unfit persons to have the custody and control of the children or, on account of the circumstances surrounding them, they are unable to give proper care, nurture and training to the minor children."
Where abandonment or forfeiture has not been proven, the unsuitability of the parent must appear. In the case at bar, the court merely found that the grandparents were fit to undertake the custody and control. Nothing was found as to the best interests of the minors; there was no finding that petitioner was unsuitable, only a conclusion that he had not "shown himself" entitled to their possession. This was fatal to respondents.
"The fact of competency or incompetency of the father was, therefore, the controlling question in the case, and, *Page 808
as there is no finding on the point, the findings must be regarded as insufficient to support the order appealed from." (Re Campbell's Estate, supra; Piatt v. Piatt, supra; McChesneyv. Geiger, 35 Idaho 69, 204 P. 658.)
Judgment reversed, with directions that the writ issue. Costs to appellant.
Givens, C.J., Budge and McNaughton, JJ., and Koelsch, D.J., concur.
Varian, J., was disqualified. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4523872/ | NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4855-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
P.R.R.1
Defendant-Appellant.
Submitted February 25, 2020 – Decided April 9, 2020
Before Judges Gilson and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 14-02-0506.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kevin G. Byrnes, Designated Counsel, on
the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Stephen Anton
Pogany, Special Deputy Attorney General/Acting
Assistant Prosecutor, on the brief).
1
We use initials to protect the privacy of the victim. See R. 1:38-3(c)(9).
PER CURIAM
Following denial of his motion to suppress evidence seized pursuant to a
search warrant, defendant P.R.R. pled guilty to first-degree kidnapping and
aggravated sexual assault for vaginally penetrating his tenant's daughter, L.L.,
when she was between the ages of ten and eleven years old. The acts were
performed in defendant's truck, in the vicinity of a shopping mall, after L.L.'s
parents entrusted the child to defendant's care. Defendant was sentenced to an
aggregate prison term of twenty-five years, with a mandatory minimum term of
twenty-five years without parole pursuant to N.J.S.A. 2C:13-1(c)(2).
The charges ensued from a nine-month law enforcement investigation
involving the transmission of child pornography videos through online peer-to-
peer files. Defendant's internet provider (IP) address was implicated during that
investigation. Following the execution of a search warrant, police seized and
searched several computers, hard drives, and external storage devices.
Hundreds of images of child pornography, including videos of defendant
engaging in sexual activity with L.L., were contained on those devices.
On appeal, defendant raises two points for our consideration:
POINT I
. . . DEFENDANT'S RIGHT TO BE FREE FROM
UNREASONABLE SEARCHES AND SEIZURES AS
A-4855-16T3
2
GUARANTEED BY THE FOURTH AMENDMENT
TO THE UNITED STATES CONSTITUTION AND
ART. I, PAR. 7 OF THE NEW JERSEY
CONSTITUTION WAS VIOLATED.
A. The Affidavit Does Not Establish Probable Cause.
B. . . . Defendant is Entitled to a Franks[2] Hearing.
Because the Affidavit in Support of the Search Warrant
Contains Material Misrepresentations of Fact the
Officer Knew or Should Have Known Were False.
POINT II
THE SENTENCE IS EXCESSIVE[.]
We have considered the contentions raised in point I in light of the record
and applicable legal principles, and conclude they lack sufficient merit to
warrant extended discussion in our written opinion, R. 2:11-3(e)(2), beyond the
following comments. We affirm defendant's kidnapping convictions and
sentence. But we vacate the penalties and fines imposed on the aggravated
sexual assault convictions and remand the matter to the Law Division to merge
those convictions into the kidnapping convictions and issue an amended
judgment of conviction.
2
Franks v. Delaware, 438 U.S. 154 (1978).
A-4855-16T3
3
I.
A.
We briefly address defendant's argument that the seventeen-page affidavit
lacked probable cause because it was based upon "stale" information. In
particular, defendant claims the affiant's description of a file shared by
defendant's IP address on December 1, 2012 was "stale by the time application
was made on January 29, 2013 . . . ." In doing so, we undertake a de novo review
of the adequacy of probable cause supporting the search warrant, State v. Handy,
206 N.J. 39, 44-45 (2011), recognizing defendant bore the burden of challenging
the search and proving a lack of probable cause. State v. Boone, 232 N.J. 417,
427 (2017).
Referencing page fifteen of the affidavit, the trial court cited the affiant's
"extensive training in child exploitation and child pornography" and her
explanation that child pornographers "rarely, if ever, dispose[] of . . . sexual [ly]
explicit images of minors . . . because the images are treated as prize
possessions." As the court noted, the affiant aptly cited our Supreme Court's
decision in State v. Evers, 175 N.J. 355, 384 (2003), "for the proposition that
'[p]edophiles, preferential child molesters, and child pornography collectors
maintain their materials for significant periods of time.'" The trial court found
A-4855-16T3
4
the affiant's statements were corroborated by the facts set forth elsewhere in the
affidavit that "defendant's computer was sharing child pornography on three
separate occasions over the span of eight months."
Accordingly, the court found "[b]ased on the totality of the circumstances"
it was "reasonable to conclude . . . defendant would continue to possess that
child pornography on January 29, 2013." In reaching his decision, the court
correctly noted it was required to defer to the issuing judge's probable cause
determination. See State v. Dispoto, 383 N.J. Super. 205, 216 (App. Div. 2016).
Based on our de novo review of the record, Handy, 206 N.J. at 44-45, we discern
no basis to disturb the trial court's decision.
B.
Little need be said regarding defendant's cursory argument that the
affidavit contained materially false information warranting a Franks hearing. To
support his claim, defendant cherry picks one statement from paragraph fifteen
of the affidavit, which supported the application for a "no knock" warrant. He
claims "the known presence of a firearm by one of the occupants" is a false
statement because police should have known none of the occupants "ha[d] a
firearm application on file."
A-4855-16T3
5
Defendant's argument is erroneous: defendant's son – who resided at the
premises – was a law enforcement officer. As noted by the court and as set forth
in a previous paragraph of the affidavit, one of the residents of the premises was
"employed by the . . . Department of Corrections and as such, was issued and
possesse[d] a Glock, Model 19 (9mm) handgun."
Based upon our de novo review of the affidavit, we conclude defendant
has failed to "make[] a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and [that] the allegedly false
statement [wa]s necessary to the finding of probable cause," warranting a
hearing. Franks, 438 U.S. at 155-56; see also State v. Howery, 80 N.J. 563, 567-
68 (1979). We further note that the affiant's statements concerning the firearm
did not bear upon probable cause. See Howery, 80 N.J. at 568 (citing Franks,
438 U.S. at 171) (recognizing a misstatement is considered material if, when
excised, the warrant affidavit "no longer contains facts sufficient to establish
probable cause" in its absence).
We hasten to add, however, that there was more than sufficient support
for a no-knock warrant set forth in the affidavit. Indeed, paragraph fifteen
further provides that the affiant was aware of "the presence of potential counter
A-4855-16T3
6
surveillance (security cameras)." And, paragraph five, which describes the
premises to be searched, provides: "Mounted to th[e] patio roof are two
surveillance cameras angled to the patio and street[,]" and affixed to the wrought
iron gate is a sign indicating the premises "has video surveillance cameras."
Accordingly, the affidavit contained more than generalized suspicions and
"boilerplate language" to justify dispensing with the knock and announce rule
iterated by our Supreme Court in State v. Johnson, 168 N.J. 608, 619, 623
(2001).
II.
Turning to defendant's excessive sentencing point, we first set forth the
terms of the plea agreement, as amended prior to sentencing, to give context to
the length of the sentence imposed.
Defendant pled guilty to two counts of first-degree aggravated sexual
assault, N.J.S.A. 2C:14-2(a)(1), by vaginal penetration of a child, who was less
than thirteen years old; and two counts of first-degree kidnapping, N.J.S.A.
2C:13-1(b)(1), by committing aggravated sexual assault on a child, who was less
than sixteen years old. Pursuant to the negotiated plea agreement, the prosecutor
recommended a twenty-five-year custodial sentence with an eighty-five percent
period of parole ineligibility pursuant to the No Early Release Act (NERA),
A-4855-16T3
7
N.J.S.A. 2C:43-7.2, to run concurrently with defendant's then-pending federal
sentence on related child pornography charges, 3 and all mandatory fines and
penalties. The State recommended dismissal of the remaining sixteen counts
charged in the twenty-count indictment.
At the start of the sentencing hearing, defendant's newly-appointed
counsel4 provided the court with copies of the amended plea form, reflecting
"the actual recommended sentence is twenty-five years" with "twenty-five years
[of] parole ineligibility" pursuant to N.J.S.A. 2C:13-1(c)(2), and the amended
NERA form, stating: "Does not apply." Defendant initialed the forms and
acknowledged the revisions on the record.
Defendant now argues his sentence "is patently excessive" because, as a
sexagenarian, a twenty-five-year period of parole ineligibility "is tantamount to
a death sentence." For the first time on appeal, defendant contends the State
was bound by its initial plea offer. Defendant also claims the court improperly
determined the aggravating and mitigating factors. Defendant does not,
3
Although the record on appeal does not contain the federal judgment of
conviction, the parties do not dispute that the federal court sentenced defendant
to a thirty-year prison term prior to imposition of sentence by the trial court in
the present matter.
4
Retained counsel represented defendant during all prior proceedings.
A-4855-16T3
8
however, dispute that his sentence was mandated by the applicable subsection
of the kidnapping statute.
When the victim of a kidnapping is less than sixteen years old and sexually
assaulted under N.J.S.A. 2C:14-2, the sentencing court is required to impose a
prison term between twenty-five years and life, with a parole ineligibility period
of twenty-five years. N.J.S.A. 2C:13-1(c)(2). As we have observed,
Where the Legislature has provided a mandatory
minimum sentence for a particular offense, as expressly
and clearly as it has done in the last paragraph of
N.J.S.A. 2C:13-1(c)(2), a court may not employ its
discretion to reach a different sentencing result, no
matter how carefully it articulates the reasons or
considers them imperative in the interests of justice.
[State v. Lopez, 395 N.J. Super. 98, 109 (App. Div.
2007).]
Because the trial court was mandated to impose a twenty-five-year term
of imprisonment we reject any implication by defendant that the sentence was
illegal because it was the functional equivalent of life without parole. And, the
record contradicts any further implication that defendant did not agree to be
sentenced to that term.
Before turning to defendant's challenges to the court's determination of
the aggravating and mitigating factors, we pause to note – although not raised
by the parties – we independently discern that merger of the convictions for
A-4855-16T3
9
aggravated sexual assault with kidnapping was mandated by N.J.S.A. 2C:13-
1(c)(2) (providing "the crime of kidnapping [committed against a child under
the age of sixteen] and underlying aggravating crimes [including aggravating
sexual assault] shall merge for the purposes of sentencing"); State v. Cooper,
151 N.J. 326, 406 (1997). Moreover, the failure to merge convictions when
appropriate results in an illegal sentence, State v. Romero, 191 N.J. 59, 80
(2007), which is a legal issue we review de novo, State v. Drake, 444 N.J. Super.
265, 271 (App. Div. 2016).
We turn to the court's assessment of the aggravating and mitigating
factors, observing that because defendant was sentenced at the lowest end of the
permissible range for kidnapping under the circumstances of this case, see State
v. Bieniek, 200 N.J. 601, 608 (2010), pursuant to the negotiated plea agreement,
the court lacked any discretion to impose a lesser sentence. "Even a sentence
recommended as part of a plea agreement, however, may be vacated if it does
not comport with the sentencing provisions of our Code of Criminal Justice."
State v. Fuentes, 217 N.J. 57, 71 (2014).
We review the sentence imposed pursuant to a plea agreement under a
deferential abuse-of-discretion standard. State v. Sainz, 107 N.J. 283, 292
(1987); State v. Roth, 95 N.J. 334, 364-65 (1984). We affirm a sentence if: (1)
A-4855-16T3
10
the trial court followed the sentencing guidelines; (2) its findings of fact and
application of aggravating and mitigating factors were based on competent,
credible evidence in the record; and (3) its application of the law to the facts
does not "shock[] the judicial conscience." State v. Bolvito, 217 N.J. 221, 228
(2014) (quoting Roth, 95 N.J. at 364-65).
The sentencing court must identify and consider "any relevant aggravating
and mitigating factors" that "are called to the court's attention[,]" and "explain
how [it] arrived at a particular sentence." State v. Case, 220 N.J. 49, 64-65
(2014) (internal quotation marks omitted). The court's explanation of the
aggravating and mitigating factors need not, however, "be a discourse." State
v. Dunbar, 108 N.J. 80, 97 (1987), overruled in part by State v. Pierce, 188 N.J.
155 (2006). We must affirm the sentence "as long as the trial court properly
identifie[d] and balance[d] aggravating and mitigating factors that [were]
supported by competent credible evidence in the record." State v. O'Donnell,
117 N.J. 210, 215 (1989).
The trial court found, and ascribed heavy weight to, aggravating factors
one, N.J.S.A. 2C:44-1(a)(1) (the offense was committed in a heinous, depraved
or cruel manner), and two, N.J.S.A. 2C:44-1(a)(2) (the victim was particularly
vulnerable). The court also found, and assigned moderate weight to aggravating
A-4855-16T3
11
factors three, N.J.S.A. 2C:44-1(a)(3) (the risk that defendant will commit
another offense), and nine, N.J.S.A. 2C:44-1(a)(9) (the need to deter defendant
and others from violating the law). Acknowledging defendant led a law-abiding
life for thirty-five years prior to the commission of the present offenses, the
court found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), affording it
moderate weight. Concluding the aggravating factors preponderated over the
mitigating factors, the court sentenced defendant in accordance with the plea
agreement.
In overlapping arguments, defendant contends the trial court improperly
found aggravating factors one and two based upon L.L.'s age and vulnerability,
which "were essential elements of the crime." Although we find no merit in
defendant's challenge to aggravating factor two, we agree that the court
impermissibly applied aggravating factor one.
While "sentencing courts frequently apply both aggravating factors one
and two, each requires a distinct analysis of the offense for which the court
sentences the defendant." State v. A.T.C., 454 N.J. Super. 235, 255 (App. Div.
2018), aff’d in relevant part, 239 N.J. 450 (2019) (internal quotation marks
omitted). When evaluating aggravating factor one, "[a] sentencing court may
consider 'aggravating facts showing that [a] defendant's behavior extended to
A-4855-16T3
12
the extreme reaches of the prohibited behavior.'" State v. Miller, 237 N.J. 15,
29 (2019) (alterations in original) (quoting Fuentes, 217 N.J. at 75).
Aggravating factor two "focuses on the setting of the offense itself with
particular attention to any factors that rendered the victim vulnerable or
incapable of resistance at the time of the crime." State v. Lawless, 214 N.J. 594,
608 (2013). The trial court "must engage in a pragmatic assessment of the
totality of harm inflicted by the offender on the victim, to the end that defendants
who purposely or recklessly inflict substantial harm receive more severe
sentences than other defendants." State v. Kromphold, 162 N.J. 245, 358 (2000).
Relying on our decision in State v. Taylor, 226 N.J. Super 441, 453 (App.
Div. 1988), the trial court determined aggravating factor one applied based
solely upon the victim's age of ten at time of the offense. But in Taylor, we
concluded the sentencing judge properly considered a victim's extreme youth in
finding aggravating factor two, where the victim of sexual abuse was only four
years old and the defendant was her uncle. Because L.L.'s age was an
"[e]lement[] of [the] crime, including [the element] that establish[ed] its grade,"
Lawless, 214 N.J. at 603, the trial court impermissibly found the victim's age as
an aggravating factor here.
A-4855-16T3
13
Ordinarily, we might remand for resentencing where, as here, the trial
court engages in impermissible double-counting. See Fuentes, 217 N.J. at 70.
We instead conclude the error was harmless. See State v. Gallagher, 286 N.J.
Super. 1, 21 (App. Div. 1995) (recognizing the sentencing court's reference to
the defendant's use of a gun in committing the aggravated sexual assault was not
improper double counting, but if it were, the error was harmless because the
court found five aggravating factors and no mitigating factors); see also R. 2:10–
2. In view of the weight afforded to the other aggravating factors, the minimal
weight afforded to the mitigating factor, and that the court imposed sentence at
the lowest end of the permissible range for kidnapping, a remand for
resentencing is not warranted.
Regarding aggravating factor two, the trial court observed defendant's
relationship with L.L. rendered her particularly vulnerable to the crimes.
Defendant capitalized on his relationship with L.L.'s family, "posed [as] a family
member" and used his relationship to "manipulate" and "assault" L.L.
Defendant's factual basis underscores his deceit, wherein he acknowledged he
told the victim's "mother that [he was] going to take L.L. to the mall" but instead
"commit[ted] an aggravated sexual assault against L.L."
A-4855-16T3
14
According to the victim, defendant perpetuated that ruse by purchasing a
gift for her at the mall after he sexually assaulted her and threatened that her
undocumented family would be exposed if she reported the abuse. See Lawless,
214 N.J. at 611 (aggravating factor two "focuses on the setting of the offense
itself with particular attention to any factors that rendered the victim vulnerable
or incapable of resistance at the time of the crime"). The record amply supports
the application of aggravating factor two under the circumstances of this case.
See O'Donnell, 117 N.J. at 215.
The trial court's findings that aggravating factors three and nine applied
were based largely upon defendant's prior federal child pornography conviction.
As to aggravating factor three, defendant faults the court for failing to "conduct
any psychological risk analysis tests or cite other evidence that would indicate
he was at risk to commit another offense." Defendant also claims his evaluation
by the Adult Diagnostic Treatment Center psychologist demonstrates he "was
not a compulsive offender."
Defendant's argument is belied by that same evaluation, which concludes
defendant met the criteria for repetition. The repetitive nature of the present
offenses supports the court's finding of aggravating factors three and nine. See
O'Donnell, 117 N.J. at 215. Defendant's contention that the need to deter "has
A-4855-16T3
15
lost its value as a meaningful aggravating factor" is an argument best left to the
other two branches of government. State v. Saavedra, 433 N.J. Super. 501, 525
(App. Div. 2013); see also R. 2:11-3(e)(2).
Lastly, defendant argues the trial court failed to consider his "repentance"
in mitigation of sentence. For the first time on appeal, he contends the court
should have found mitigating factors eight, N.J.S.A. 2C:44–1(b)(8) (defendant's
conduct was a result of circumstances unlikely to recur), and nine, N.J.S.A.
2C:44-1(b)(9) (defendant's character and attitude indicate it is unlikely he will
commit another offense). Defendant's argument fails in view of his likelihood
of recidivism and continual abuse of L.L. in this case. While it is possible to
find contradictory factors, provided they are "specifically explained," Fuentes,
217 N.J. at 63, the trial court specifically considered and rejected defendant's
purported repentance, which failed to address any "feeling" or "empathy for
th[e] young girl." The court also rejected defendant's "characteriz[ation of] what
[he] did as a mistake," finding defendant's actions were "a scheme to create a
situation where [he] took advantage of a young child and her family." It is
beyond peradventure that neither mitigating factor eight nor nine applies here.
A-4855-16T3
16
In sum, the sentence imposed by the trial court, pursuant to the amended
plea agreement, does not shock our judicial conscience. Bolvito, 217 N.J. at
228.
Affirmed in part; vacated and remanded in part. We do not retain
jurisdiction.
A-4855-16T3
17 | 01-03-2023 | 04-09-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4523875/ | NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2487-18T2
NEW JERSEY SPORTS AND
EXPOSITION AUTHORITY,
Plaintiff-Respondent,
v.
TOWN OF KEARNY,
Defendant-Appellant,
and
STATE OF NEW JERSEY, by
and through the TIDELANDS
RESOURCE COUNCIL,
THEODORE C. WILDMAN, and
all of his heirs, successors and
assigns, MIMI DEVELOPMENT
CORPORATION, its successor
HUDSON MEADOWS URBAN
RENEWAL CORPORATION, and
its further successor, SONEE
URBAN RENEWAL CORPORATION,
Defendants.
__________________________________
Submitted March 11, 2020 – Decided April 9, 2020
Before Judges Koblitz, Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-2039-16.
Castano Quigley LLC, attorneys for appellant (Paul V.
Fernicola, of counsel and on the brief; Gregory J.
Castano Jr., on the briefs).
Lowenstein Sandler LLP, attorneys for respondent
(James Stewart and Kent D. Anderson, on the brief).
PER CURIAM
Defendant Town of Kearny appeals from the December 19, 2018 final
judgment for $1,818,000, awarded as just compensation for plaintiff New Jersey
Sports and Exposition Authority's (NJSEA) condemnation of 104.64 acres of the
Keegan Landfill (subject property). The trial court adopted the analysis and
valuation set forth by NJSEA's appraisal. Kearny alleges the trial court made
improper findings as a matter of law and erred when allowing NJSEA's rebuttal
experts to testify. It also argues it was deprived of its right to a jury trial. We
disagree and affirm.
In May 2016, NJSEA filed a verified condemnation complaint with the
trial court. We affirmed "an order granting a final judgment authorizing
[NJSEA] to exercise its power of eminent domain relating to the Keegan
A-2487-18T2
2
Landfill." N.J. Sports & Exposition Auth. v. Town of Kearny, No. A-5152-15
(App. Div. November 20, 2017) (slip op. at 2).
On March 9, 2018, NJSEA served expert reports from Jeffrey D. Kendall
and John A. Castner. Nineteen days later, Kearny for the first time made an
unsuccessful request for a jury trial. After depositions, Kearny's motion to bar
the reports and testimony of Kendall and Castner and NJSEA's cross-motion to
bar Kearny's rebuttal experts were denied.
In October 2018, Judge Francis B. Schultz presided over a five-day bench
trial, hearing testimony from eight witnesses. In a comprehensive letter opinion,
he found that NJSEA's expert's valuation of the property was correct: the fair
market value at the time of taking was $1,818,000.
We adopt the factual background to this matter as described in our prior
opinion. Id. at 3-9.
I.
A final determination made by a trial court conducting a non-jury case is
"subject to a limited and well-established scope of review." Seidman v. Clifton
Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). We will not disturb the trial court's
fact-findings unless we are "convinced that those findings and conclusions [are]
'so manifestly unsupported by or inconsistent with the competent, relevant and
A-2487-18T2
3
reasonably credible evidence as to offend the interests of justice.'" Greipenburg
v. Twp. of Ocean, 220 N.J. 239, 254 (2015) (quoting Rova Farms Resort v. Inv'rs
Ins. Co., 65 N.J. 474, 484 (1974)). Similarly, "a trial court's decision to admit
expert testimony . . . [is] review[ed] . . . against an abuse of discretion standard."
N.J. Transit Corp. v. Franco, 447 N.J. Super. 361, 369 (App. Div. 2016) (quoting
Townsend v. Pierre, 221 N.J. 36, 53 (2015)).
We review de novo questions of law, only reversing if an error was "of
such a nature as to have been clearly capable of producing an unjust result."
R. 2:10-2; see Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995).
II.
Because "the undisputed evidence demonstrated the actual, ongoing and
continued use of the [s]ubject [p]roperty as a landfill," Kearny argues the trial
court erred in relying upon NJSEA's appraiser's conclusion that the "highest and
best use" of the property is for passive recreation.
When the government takes private property for public use, it must pay
just compensation to the property owner. U.S. Const. amend. V; N.J. Const. art.
I, ¶ 20. "Just compensation is 'the fair market value of the property as of the
date of the taking, determined by what a willing buyer and a willing seller would
A-2487-18T2
4
agree to, neither being under any compulsion to act.'" State by Comm'r of
Transp. v. Caoili, 135 N.J. 252, 260 (1994) (quoting State by Comm'r of Transp.
v. Silver, 92 N.J. 507, 513 (1983)). While "all reasonable uses of the property
bear on its fair market value," the "most relevant . . . is the property's highest
and best use." Ibid.
"[H]ighest and best use" . . . is broadly defined as "the
use that at the time of the appraisal is the most
profitable, likely use" or alternatively, "the available
use and program of future utilization that produces the
highest present land value" provided that "use has as a
prerequisite a probability of achievement."
[County of Monmouth v. Hilton, 334 N.J. Super. 582,
587 (App. Div. 2000) (quoting Ford Motor Co. v. Twp.
of Edison, 127 N.J. 290, 300-01 (1992)).]
The "highest and best use" of the property must be: "1) legally permissible, 2)
physically possible, 3) financially feasible, and 4) maximally productive." Id.
at 588.
Kearny's appraiser estimated the value of the entire Keegan Landfill, not
just the subject property, to be worth $23,430,000. He assumed "assemblage":
that a new buyer would also buy the portion of the property already owned by
NJSEA and not at issue in this litigation. He confirmed that because "zone
landfills are legally permissible" and because the property "is an operating
A-2487-18T2
5
landfill," its use as such is legally permissible and physically possible. Although
he agreed the property may operate for recreational use, he stated "[i]t won't be
that for at least seven, eight years, or whenever the closure occurs." 1 As to the
property's financial feasibility, the appraiser testified that based on his review
of the income and expenses, the property will make "between $14[] and $16
million a year for the next seven years or so." He explained that because "a
substantial net operating income" is generated, "the landfill is clearly the
maximally productive or generates the highest income from any of the other uses
that this property could be."
In contrast, NJSEA's appraiser, whose evaluation was accepted by the
court, explained that his "appraisal values [were] . . . based on its highest and
best use at the termination of the lease between [NJSEA] and [Kearny]," at
which time operation of the landfill would cease. Although he acknowledged
that NJSEA sought to renew the permit and increase the authorized height limit
of the landfill, he clarified that those requests applied to the property as a whole,
not just the subject property. Calculating the value under the "assumption" that
operation of the landfill would cease, his estimated value of $1,888,000 applied
1
We note as an aside that a March 6, 2020 consent order memorialized an
agreement to permanently close the landfill expeditiously.
A-2487-18T2
6
only to the 104.64 acres of condemned property. In the appraiser's "highest and
best use" analysis, he emphasized that due to the "large mound of garbage sitting
in the middle of [the landfill], effectively sitting in a tidal marsh, with steeply
sloped sides, [the landfill] ha[s] virtually no practical utility. You can't . . . do
anything with it, you can't build on it." Because the property is "limited in its
potential uses" and a "very highly constrained site," he concluded recreational
use of the property satisfied the four "highest and best use" factors.
The trial court’s letter opinion explained "that the preponderance of the
evidence supports the plaintiff's position and . . . [']assumption.'" He found that
Kearny's appraiser provided "no reason to assume such cooperation" between
NJSEA and the new purchaser. Furthermore, Kearny's appraiser merely
speculated that "the property already owned by the plaintiff would be used
concurrently with the property at issue here." The trial court also took issue
with Kearny's appraiser's calculation, which "included useless water as part of
the percentage of income that would be split with an allegedly cooperating
plaintiff" and the indemnification of the seller, which the trial court found might
raise concerns for a prospective purchaser. Because "it appeare[d] that the
landfill could not be operated solely on the Kearny portion as that would require
A-2487-18T2
7
too many significant alterations," the court accepted NJSEA's appraiser's
testimony that the property is "best suited for passive recreation."
Which appraiser was most convincing is a factual question that we review
for an abuse of discretion. See Greipenburg, 220 N.J. at 254. Because the
court's findings are supported by "adequate, substantial and credible evidence,"
reversal is not warranted. Rova Farms, 65 N.J. at 484.
III.
Kearny argues that the trial court's finding that "the evidence in this case
could not point to a single sale of a public landfill to a private ent ity" is both
irrelevant to the "highest and best use" analysis and factually incorrect because
its own expert in the field of waste management said that such a sale was viable.
The likelihood of the sale of the property contributes to "a comprehensive
market analysis to ascertain the supply and demand characteristics," which is
required when determining the "highest and best use." County of Monmouth,
334 N.J. at 588 (quoting Six Cherry Hill, Inc. v. Twp. of Cherry Hill, 7 N.J. Tax
120, 131 (Tax 1984)). The trial court's finding is supported by the testimony of
three of NJSEA's witnesses who were unaware of similar sales of a public
landfill to a private entity.
A-2487-18T2
8
IV.
Kearny argues that the trial court erred in finding that its appraiser's use
of assemblage was speculative. Considering the history of the cooperation and
the lease agreement between the parties, Kearny argues it reasonably
incorporated into its just compensation calculation the value of the property
already owned by NJSEA.
Kearny's appraiser testified:
NJSEA had opened this landfill in 2009. . . . There's a
history of cooperation. And clearly to get to your
highest and best use, to get to this highest value all
parties would want to cooperate so they could share in
that.
He believed that because such cooperation has "been going on for years," after
entering into an agreement, "NJSEA would share the income from the landfill
business with the new buyer of the subject [property]." The court was free to
reject this calculation.
V.
Kearny argues the court's finding that a prospective buyer may be
concerned with the community's resistance to the landfill "has no basis in law
or in any evidence." NJSEA, however, provided such evidence. The court
admitted into evidence a letter from plaintiff, in which it objected to the
A-2487-18T2
9
existence of a landfill in its town. While Kearny argues the letter was irrelevant,
NJSEA argued that it demonstrated Kearny's "dual position" as the owner of the
subject property and as the host community of the landfill. The court explained
it would allow the letter into evidence "because a well-informed buyer would
certainly want to know what the town of Kearny has to say about these things"
because it might affect the buyer's decision to go through with the sale.
VI.
Kearny argues indemnity is not relevant to the "highest and best use
analysis." The value of a property, however, is "based on all surrounding
circumstances at the time of the taking." Silver, 92 N.J. at 514. Whether a
purchaser will require an indemnification from the seller is an important
consideration regarding the sale of the subject property, particularly, as the trial
court found, because of "[t]he potential exposure due to some sort of
environmental mishap" present here.
VII.
Kearny argues "[t]he record is devoid of any evidence to support" the
court's conclusion that the landfill could not operate solely on the subject
property. It asserts that by ignoring the testimony of its landfill expert, the court
committed reversible error.
A-2487-18T2
10
In examining the impediments surrounding a property, the party
advocating a position "is required to come forward with reliable evidence that
the 'feasibility, suitability and practicability' of its proposal make it reasonably
probable that the development handicaps will be overcome and the requisite
approvals will be secured." Jersey City Redevelopment Agency v. Mack Props.
Co. No. 3, 280 N.J. Super. 553, 566 (App. Div. 1995) (citation omitted).
Although Kearny's expert opined that it would be "technically feasible" to
operate a landfill on only the subject property, he said he analyzed the entire
Keegan Landfill, not just the subject property. To operate the landfill, various
modifications to the subject property would need to be made, such as: capping
the leachate2 lines at the edge of the subject property, shifting the landfill mound
so it would not encroach on NJSEA's property and creating a pump station to
collect and transfer leachate. A permit modification would also be necessary.
Kearny also argues the record is devoid of evidence that "there is too much
competition for the Keegan Landfill." NJSEA's experts, however, testified that
2
Leachate is "a liquid waste product that consists of a diverse mixture of
chemicals as precipitation or applied water moves through the waste." Landfill
Leachate Released to Wastewater Treatment Plants and other Environmental
Pathways Contains a Mixture of Contaminants including Pharmaceuticals,
https://www.usgs.gov/mission-areas/environmental-health/science/landfill-
leachate-released-wastewater-treatment-plants?qt-science_center_objects
=0#qt-science_center_objects (last visited Mar. 18, 2020).
A-2487-18T2
11
the landfill faces competition from transfer stations and railroads and it lost two
customers months before the taking. The trial court's conclusion was supported
by sufficient credible evidence.
VIII.
Kearny argues the trial court erred in admitting the testimony of Castner
and Kendall and their reports because they were not qualified to offer opinions
on value and their reports did not comply with Rule 4:17-4(e). Kearny claims
the "reports set forth inadmissible net opinions" that failed to explain "the facts,
reasons or calculations that led to the conclusions."
Rule 4:17-4(e) requires that an expert report provided in response to an
interrogatory "shall contain a complete statement of that person's opinions and
the bases therefor; the facts and data considered in forming the opinions; the
qualifications of the witness, including a list of all publications . . . and whether
compensation has been or is to be paid." While Kendall failed to discuss in his
report whether he was being compensated, NJSEA provided these reports to
Kearny pursuant to Rule 4:73-11, not in response to interrogatories. Kendall
explained in his report that he relied on the "profit and loss statement as provided
by management" and he explained how he arrived at his calculations.
A-2487-18T2
12
The net opinion rule "forbids the admission into evidence of an expert's
conclusions that are not supported by factual evidence or other data."
Townsend, 221 N.J. at 53-54 (quoting Polzo v. County of Essex, 196 N.J. 569,
583 (2008)). The expert must "'give the why and wherefore' that supports the
opinion, 'rather than a mere conclusion.'" Id. at 54 (quoting Borough of Saddle
River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)). The rule, however,
does not require "[a]n expert's proposed testimony . . . be excluded merely
'because it fails to account for some particular condition or fact which the
adversary considers relevant.'" Townsend, 221 N.J. at 54 (quoting Creanga v.
Jardal, 185 N.J. 345, 360 (2005)).
N.J.S.A. 45:14F-21(c) provides that unless an exception applies, only a
licensed or certified real estate appraiser "or a person who assists in the
preparation of an appraisal under the direct supervision of a State licensed or
certified appraiser shall perform or offer to perform an appraisal assignment."
Because neither Castner nor Kendall were real estate appraisers, Kearny argues
they were unqualified to offer opinions on value. Neither of these experts,
however, discussed valuation in their reports or testimony.
After setting forth Castner's qualification, respondent asked that he be
qualified as "an expert witness as to the New Jersey regulations and the
A-2487-18T2
13
permitting process for solid waste landfills." Kearny raised no objection and by
stipulation, the court qualified Castner as such. Castner's testimony primarily
"advise[d] the [c]ourt as to the process required and the amount of time it takes
to obtain" permits. Any reference to the sale of the property was within the
context of describing the process of transferring the permit.
Similarly, Kendall was qualified by stipulation "as an expert in the
purchase and sale of . . . solid waste landfills." A "stipulation waives all
challenges to the admissibility of . . . [an] expert's testimony." State v. A.O.,
198 N.J. 69, 87-88 (App. Div. 2009). Kendall explained that he "was asked to
look at [the] Keegan Landfill as a potential purchaser of the landfill and what
price [he] would pay to purchase [it]." He discussed the factors a buyer would
consider when considering purchasing the property and why he would not have
been interested in doing so. While Kendall referred to various expenses and fees
associated with the purchase of the property, such as taxes, value of the present
cash flow and closure costs, he did not provide a value of the property. Instead,
his discussion of valuation was limited to concluding that a sophisticated buyer
would not purchase the property at any price. Castner and Kendall sufficiently
supported their conclusions.
A-2487-18T2
14
IX.
Kearny argues the trial court erred when denying its motion for a jury. It
contends that under Rule 1:3-4, the court should have relaxed the time restraint
because NJSEA's "introduction of two new and highly technical expert reports
shortly before [the] trial constituted 'good cause.'"
In a condemnation case, "[t]he appellant in the notice of appeal may
demand trial by jury, or any other party may make such a demand within [ten]
days after service of the notice of appeal." R. 4:73-6(a). Pursuant to Rule
1:3-4, "[u]nless otherwise expressly provided by rule, a period of time thereby
fixed for the doing of an act may be enlarged before or after its expiration by
court order on notice or (unless a court has otherwise ordered) by consent of the
parties in writing." Although the Rule "does not contain any explicit standard
for a court granting an enlargement of time," our court has recognized that a
showing of "'extraordinary circumstances,' such as the 'interest of justice' or
'good cause,'" should be demonstrated by the moving party. Flett Assocs. v.
S.D. Catalano, Inc., 361 N.J. Super. 127, 133 (App. Div. 2003).
In denying Kearny's demand for a jury trial, made fifteen months past the
permitted time, the court did not abuse its discretion. Neither NJSEA nor
Kearny made a jury demand in their notice of appeal to the trial court. The new
A-2487-18T2
15
expert reports did not constitute "extraordinary circumstances" warranting
relaxation of the Rule. Kearny's right to a jury trial was not violated.
Affirmed.
A-2487-18T2
16 | 01-03-2023 | 04-09-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3997056/ | There is but one question in this case, i.e., does a purchaser at a county tax foreclosure sale, where the city has been regularly served, take title subject to local improvement assessments?
[1] We have held:
"By the provisions of Rem. Bal. Code § 9230, (P.C. 501, § 205), the lien of general taxes is declared to be superior to all other liens and claims upon the property against which such taxes are charged. The regular foreclosure of such a lien as *Page 672
was concededly had against this lot has, under our revenue law, all the force of a proceeding in rem, Continental DistributingCo. v. Smith, 74 Wash. 10, 132 P. 631, and vests in a purchaser at a sale held under such foreclosure a new title independent of all previous titles or claims of title to the property. Hanson v. Carr, 66 Wash. 81, 118 P. 927. Manifestly, both record and possessory title are equally absolutely destroyed by such a foreclosure. Such is the theory upon which the following decisions of this court were rendered, though they involved only the question of superiority of general tax liens over local assessment liens. McMillan v. Tacoma,26 Wash. 358, 67 P. 68; Keene v. Seattle, 31 Wash. 202,71 P. 769; Ballard v. Way, 34 Wash. 116, 74 P. 1067, 101 Am. St. 993; Pennsylvania Co. v. Tacoma, 36 Wash. 656, 79 P. 306; Black, Tax Titles, (2nd ed.) § 420." Gustaveson v. Dwyer,78 Wash. 336, 139 P. 194.
Also, in McMillan v. Tacoma, 26 Wash. 358, 67 P. 68, we said:
"Sec. 93, p. 316, Laws 1891, contains the following:
"`The said lien shall have priority to and shall be fully paid and satisfied before any recognizance, mortgage, judgment, debt, obligation, or responsibility to or with which said real estate may become charged or liable.'
"Stronger language could not be used to declare the general tax lien paramount over every other possible lien or burden to which property may be subjected. The identical language above employed has been carried forward into subsequent statutes, and is found in the following Session Laws: Laws 1893, p. 358, § 79; Laws 1895, p. 516, § 19; Laws 1897, p. 174, § 78. There has been no repeal or modification of the statute as it was left in 1897, and the same is now the law. Under that declaration of the legislature it must be held that the holder of a delinquent general tax certificate is not required to pay local street assessment liens before he can proceed to foreclose and sell under his general tax lien. He is entitled to a decree establishing his tax lien as paramount and superior to all other liens or charges against the property." *Page 673
This same section is still in our revenue laws, Laws of 1925, Ex. Sess., p. 291, § 99; Rem. 1927 Sup., § 11097-99.
Rem. Comp. Stat., § 9393, provides:
"The holder of any certificate of delinquency for general taxes shall, before commencing any action to foreclose the lien of such certificate pay in full all local assessments or installments thereof outstanding against the whole or any portion of the property included in such certificate of delinquency, or, he may elect to proceed and acquire title to such property subject to certain or all local assessments a lien thereon, in which case the complaint, decree of foreclosure, order of sale, sale, certificate of sale and deed shall so state. If such holder shall pay such local assessments, he shall be entitled to fifteen per cent interest per annum on the amount of the delinquent assessments or delinquent installments thereof so paid, from date of payment.
"In any action to foreclose any lien for general taxes upon any property a copy of the complaint shall be served on the treasurer of the city or town within which such property is situate within five days after such complaint is filed. In any case where any property shall be struck off to or bid in by the county at any sale for general taxes, and such property shall subsequently be sold by the county, the proceeds of such sale shall first be applied to discharge in full the lien or liens for general taxes for which the same was sold, and the remainder, or such portion thereof as may be necessary, shall be paid to the city to discharge all local assessment liens upon such property and the surplus, if any, shall be distributed among the proper county funds."
In construing this statute this court, in Maryland Realty Co.v. Tacoma, 121 Wash. 230, 209 P. 1, said:
"Appellants contend that this last quoted section applies to foreclosures and purchases made by counties *Page 674
as well as those made by private individuals, and that consequently it was necessary that the county before foreclosing should pay the local assessments or bid in the property subject thereto. We cannot so hold. Before the passage of § 9393 by the 1911 legislature, we had consistently held that the payment of local assessments was not a prerequisite to foreclosure of certificates of delinquency for general taxes, whether such suit be by a county or by private individuals. McMillan v. Tacoma,26 Wash. 358, 67 P. 68; Ballard v. Way, 34 Wash. 116,74 P. 1067, 101 Am. St. 993; Pennsylvania Co. v. Tacoma, 36 Wash. 656,79 P. 306; Ballard v. Ross, 38 Wash. 209, 80 P. 439. It was after the rendition of these decisions that the legislature passed § 9393. It was the legislative intent to preserve the lien of the local assessment where it could be done without sacrifice to the county and state. If private investors would take the property, they must pay both the delinquent general tax and the local assessments, but if the property be of such small value as that the county must buy it in, then the superiority of the lien for general taxes must be asserted, even to the point of destroying the lien of the local assessment. Any other construction of the statute would greatly hamper and hinder the state and county in securing funds by means of which they are enabled to carry out their constitutional and statutory functions."
The record in this case shows that, at the commencement of the county tax sale at which the lands in this controversy were sold by the county, an announcement was made that "all bids are subject to local improvements." The record also shows that, at the time this announcement was made, appellants, the purchasers, were not present and had no knowledge thereof, and that there was nothing in the record or notice of sale to suggest that the land was being sold subject to local assessments. But this announcement can, in no event, alter the situation. The duty of the officials is to sell the land and collect the taxes. *Page 675
The legislature prescribes that private holders of certificates of delinquency must foreclose subject to the lien of the local assessments. But in all the rights and privileges granted to municipalities for the purpose of enabling them to collect their liens, the state has uniformly insisted that the taxes due the county constitute a prior lien. A county, in collecting the tax, is but an arm or agency of the state, and it is the right and duty of the state, acting through its law-making body, to fix the priorities of the various kinds of taxes and to prescribe the manner and method of collection.
In the final analysis, there is but one way to enforce the collection of taxes, and that is by the sale of property, and this cannot and must not be made impossible by the unauthorized statements of those in charge of the sale. The duties of those conducting a sale are prescribed by statute; every step of the proceeding is plainly designated both by statute and decision, and purchasers are not required to anticipate that there may be a radical departure therefrom when the written record is silent. We have held:
"Where the county forecloses a certificate of delinquency on account of general taxes and buys in at the sale and later sells the property to a private individual, it initiates and creates a new title to the property, which the private individual takes free and clear of any kind or character of prior liens. Section 11308, Rem. Comp. Stat., reads:
"`All property deeded to the county under the provisions of this act shall be stricken from the tax-rolls as county property and exempt from taxation and shall not be again assessed or taxed while the property of the county.'
"Section 11309, Rem. Comp. Stat., reads that:
"`No claims shall ever be allowed against the county from any municipality, school district, road district or other taxing district for taxes levied on property acquired *Page 676
by the county by tax deed under the provisions of this act, but all taxes shall at the time of deeding said property be thereby cancelled. . . .'
"Section 9372, Rem. Comp. Stat., being a part of the local improvement act, provides that the lien of the local assessment shall be prior to all other liens `except a lien for assessment of general taxes.' Because the state and its subdivisions and municipalities depend for their existence entirely upon the power of taxation and the collection of revenue thereby, this court will not make any ruling which would hinder and delay the collection of such taxes, unless clearly so provided by the legislature. We said in McMillan v. Tacoma, supra:
"`The state and its subordinate municipalities cannot exist without the collection of public revenue, and serious confusion would result if the lien of taxes levied for that purpose should be made inferior to, or equal with, local assessments or other liens.'" Maryland Realty Co. v. Tacoma, 121 Wash. 230,209 P. 1.
When is this new title initiated and created? It can only be when the tax foreclosure and sale take place, for it is at that time all parties are before the court; then that all defenses are examined, all questions litigated, and then, if the proceedings are regular, is the new title created.
What is it that is being sold at the county tax sale? It is the land, not the lien, and the smallest portion of the land that will realize the amount of the taxes. Presumably, if the land is worth more than the amount of the taxes, a lesser amount than the whole thereof will be sold, leaving a balance, of course, subject to the lien of the local assessments. But the superior governmental agency — the state — cannot be unduly hampered in the collection of its revenues, and unless it plainly appears from the legislative enactment that it was the intention of the state to sell the land subject to the lien of the local assessments, the court should not so hold. *Page 677
In Maryland Realty Co. v. Tacoma, supra, we held that, where the county sold land which it had bid in at county sale, it sold it free from the lien of local assessments. We now hold that, where a private individual buys land at a county sale for taxes, all proceedings being regular, and the municipality having been made a party, that this land is purchased free from the lien of local assessments.
The judgment of the lower court is reversed, with instructions to dismiss the action.
MACKINTOSH, C.J., and MITCHELL, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3411087/ | April 11, 1946, respondents, husband and wife, by written contract agreed to sell appellant some 560 acres of land for $12,000; $2,000 paid down, $4,000 in thirty days and $6,000 in ninety days; respondents being allowed to remain in the house on the premises for a reasonable length of time — otherwise, immediate possession going to appellant. After a description of the land, the contract continued thus: "Together with all the tenements, hereditaments and appurtenances, all water and water rights, ditches and ditch rights appurtenant thereto or used in connection therewith." Nothing was stated in the contract with regard to respondents' Forest or Taylor Act grazing rights.
Respondents contend April 19, 1946, they informed appellant they did not intend to be bound by the contract for the reason there had been a complete misunderstanding as to the conveyance of their grazing rights (Forest and Taylor Act,16 U.S.C.A. § 551; 43 U.S.C.A. § 315 et seq.); that respondents had never intended to convey same, and attempted to hand the unendorsed and uncashed check for $2,000 to appellant, which he did not accept, though it was left in his car, and that he said: "* * * O.K. we will forget it." Appellant denies this and following respondents' refusal to proceed with the contract, brought suit June 8, 1946, for specific performance of the transfer of the land, tendering payment.
The contract in question was prepared by and signed in the office of an attorney in Salmon, who stated he did not recall the grazing rights were mentioned at that time. Respondents testified they were and it was stated and understood the rights were not to pass with the conveyance of the land. Appellant, in effect, denied this, but during the course of the trial, appellant's attorney stated: "* * * we are not bringing a suit for conveyance of grazing rights, but only for land described in the complaint."
A discussion arose at that time by reason of respondents' attempt to show there had been a misunderstanding regarding the contract and that it did not cover the grazing right. The court admitted evidence along these lines: i. e. misunderstanding and mistake, and found: "* * * and that it was part of the agreement between the parties that the Taylor Grazing or U.S. *Page 541
Grazing Service privilege was not to be included in the transaction and covered by the said agreement, but was reserved by the defendants as Vendors." Also found the contract was not rescinded or abandoned as contended for by respondents, and evidently because there was no allegation in plaintiff's pleadings asking reformation of contract to exclude the grazing privileges, denied specific performance of the contract for transfer of the land.
Appellant concedes there is sufficient evidence in the record to justify the finding of the court that respondents executed the contract under a mistaken belief that the grazing rights were not to be affected by the transfer. Appellant only contends this was not a material mistake, but it was. It thus appears the contract, which the court found was made, was for the transfer of the land only and appellant, both during the course of the trial as indicated above and at the time of the argument, stated unequivocally that was all he was seeking or desires.
Though the grazing authorities testified the grazing rights follow the transfer of the land, the specific performance sought by appellant during the course of the trial, was and now is the transfer of the land alone, without the grazing rights.
Respondents take the position that was what the contract was to be, but were not and are not now willing to go ahead with it and particularly urge that since reformation of the contract was not shown by the pleadings, the court had no jurisdiction to enforce the contract, even as contended for by the respondents and found by the court.
No reformation of the contract as applied to the sale of the land was necessary. Respondents at no time indicated after the signing of the contract and after tender of performance by appellant, they were willing to proceed with the transfer of the land alone, even though all grazing rights be reserved to them as contended for by them. Appellant, on the other hand, during the course of the trial and now, was willing to do so. The absence of pleading reformation of the contract and thus changed enforcement, was therefore unnecessary, because it was already by its agreed terms limited to the sale of the land. Therefore, it is unnecessary to consider whether appellant would be entitled, as a general proposition in equity, to enforcement of the contract as shown upon trial of the case, though different from that alleged by him, without further pleading on his part.
The cause is, therefore, reversed and remanded with instructions to the trial court to render judgment for specific performance as to the transfer of the land only, subject to officially authorized retention by respondents of the grazing privileges. If such retention may not be so accomplished, the judgment to be affirmed. Costs awarded to appellant.
BUDGE, C.J., and HOLDEN, MILLER and HYATT, JJ., concur. *Page 542 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2919830/ | NUMBER 13-99-484-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
____________________________________________________________________
ISLAND DUNES PROPERTY OWNERS' ASSOCIATION, HAWAIIAN ARANSAS,
LTD., WILLIAM H. PECKHAM, SYLVIA A. SHARP, WILLIAM E. BARNARD, GLORIA
BARNARD, MICHAEL E. BARNARD, KATHY BARNARD, AND CLINTA B. WILLIAMS, Appellants,
v.
BEXAR CONSTRUCTION SERVICES, INC., A TEXAS CORPORATION, Appellee.
____________________________________________________________________
On appeal from the 28th District Court of Nueces County, Texas.
____________________________________________________________________
MEMORANDUM OPINION
Before Justices Hinojosa, Yañez, and Chavez (1)
Opinion by Justice Yañez
Appellants, Island Dunes Property Owners Association, Hawaiian Aransas, Ltd. (Hawaiian), William Peckham, Sylvia A.
Sharp, William and Gloria Barnard, Michael E. and Kathy Barnard, (2) and Clinta B. Williams, appeal from a judgment
rendered for Bexar Construction Services, Inc. (Bexar). We reverse and remand.
Bexar filed suit against appellants under theories of quantum meruit, breach of contract, and suit on a sworn account. Bexar
also sought the foreclosure of a contractor's lien. At trial, before the admission of any evidence, Bexar moved for judgment
on the pleadings on its sworn account claim. The court rendered judgment on the sworn account and also ordered the
foreclosure of Bexar's lien against the defendants.
In their fourth issue on appeal, appellants argue that the trial court abused its discretion by refusing to allow appellants to
amend their answer to include a verified denial of the sworn account. Amending an answer to add a verified denial to a suit
on a sworn account is a procedural change and a trial court abuses its discretion by refusing this amendment, even if offered
on the day of trial. Chapin & Chapin v. Texas Sand & Gravel Co., 844 S.W.2d 664, 665 (Tex. 1992)(per curiam).
Appellants' fourth issue on appeal is sustained. Because the remaining issues on appeal are not necessary to the disposition
of this appeal, we do not address them. (3) Tex. R. App. P. 47.1.
The judgment of the trial court is REVERSED and REMANDED for further proceedings consistent with this opinion.
LINDA REYNA YAÑEZ
Justice
Do not publish. Tex. R. App. P. 47.3.
Opinion delivered and filed this the
14th day of June, 2001.
1. Retired Justice Melchor Chavez assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to
Tex. Gov't. Code Ann. § 74.003 (Vernon 1998).
2. In both its original and amended petitions, Bexar shows Michael E. and Kathy Barnard as "Marnard." This is a
misspelling not followed in the trial court's records.
3. With their second and third issues, appellants argue that the trial court erred in ordering foreclosure on Bexar's
contractor's lien. Because the lien was based upon the contractual claims, the propriety of any foreclosure is dependent
upon the trial court's disposition of the contractual claims. | 01-03-2023 | 09-11-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1770850/ | 761 So. 2d 892 (2000)
Tommy BUIE a/k/a Tommy E. Buie a/k/a Tommy Eugene Buie, Appellant,
v.
STATE of Mississippi, Appellee.
No. 1998-KA-01051-COA.
Court of Appeals of Mississippi.
March 7, 2000.
Rehearing Denied June 27, 2000.
Randall Harris, Richard A. Rehfeldt, Jackson, Attorneys for Appellant.
Office of the Attorney General by Charles W. Maris, Jr., Attorney for Appellee.
BEFORE SOUTHWICK, P.J., LEE, AND MOORE, JJ.
MOORE, J., for the Court:
¶ 1. Appellant Tommy Buie was indicted by a Hinds County grand jury for possession of cocaine with the intent to distribute. Following a trial, the jury found Buie guilty as charged. The circuit court sentenced Buie to serve a term of twenty years imprisonment in the custody and control of the Mississippi Department of Corrections. Aggrieved, Buie cites one issue on appeal
THE GUILTY VERDICT BY THE JURY WAS CONTRARY TO THE FACTS AND LAW PRESENTED IN THIS CASE AS THE DEFENDANT WAS NEITHER IN PHYSICAL NOR CONSTRUCTIVE POSSESSION OF THE DRUGS SEIZED
Finding no merit, we affirm.
I. FACTS
¶ 2. On April 18, 1997, Avaline Baggett, a detective with the Jackson Police Department, executed a search warrant at Buie's residence located on 537 Burns Street in Jackson. Buie was not home at the time Detective Baggett executed the *893 warrant. Detective Baggett recovered more than 50 grams of cocaine, marijuana, $12,322 cash, two sets of scales, razor blades, two cell phones, a digital pager, two shotguns, and personal papers. Detective Baggett testified that she recovered the majority of this evidence from Buie's bedroom. She identified the room as Buie's because she recovered some personal correspondence addressed to Buie, and also a photograph which contained the inscription "to Catfish with love" from the room. "Catfish" is Buie's nickname.
¶ 3. Buie turned himself in to the police on the day following the search. Detective Baggett read Buie his Miranda rights. Buie admitted to Detective Baggett that the evidence seized from the bedroom was his. He further admitted that he was "trying to make it" which indicated to Detective Baggett that Buie was selling drugs. Buie refused to sign a waiver of rights form, and he refused to commit his confession to writing. At trial, Buie denied confessing to ownership and sale of the drugs.
II. LAW AND ANALYSIS
WAS THE GUILTY VERDICT BY THE JURY CONTRARY TO THE FACTS AND LAW PRESENTED IN THIS CASE AS THE DEFENDANT WAS NEITHER IN PHYSICAL NOR CONSTRUCTIVE POSSESSION OF THE DRUGS SEIZED?
¶ 4. Buie complains that the trial court erred in denying his motion for new trial. He argues that since no contraband was found on his person, the State was required to prove he constructively possessed the drugs. He claims that the State did not meet its burden of proving his constructive possession; thus, the verdict was contrary to the facts and law, another way of stating that the verdict was against the overwhelming weight of the evidence.
¶ 5. For Buie to be convicted of the crime charged in the indictment, the State had to prove that he wilfully, unlawfully, knowingly, and feloniously possessed cocaine with the intent to distribute it. Since Buie was not on the premises when the police executed the search warrant, he was not physically in possession of the cocaine and paraphernalia found at his house. For his conviction to stand:
[T]here must be sufficient facts to warrant a finding the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing dominion or control.
Curry v. State, 249 So. 2d 414, 416 (Miss. 1971).
¶ 6. The owner of premises is presumed to be in constructive possession of contraband found upon the premises. Cunningham v. State, 583 So. 2d 960, 962 (Miss.1991); Powell v. State, 355 So. 2d 1378, 1379 (Miss.1978). This presumption is rebuttable. Powell, 355 So.2d at 1379. "[W]here contraband is found upon premises not in the exclusive control and possession of the accused, additional incriminating facts must connect the accused with the contraband." Id. Further, "[w]here the premises upon which contraband is found is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband." Id.
¶ 7. Buie testified that three other people lived in the house with him; therefore, the house was not in his exclusive possession. The State was required to prove Buie's constructive possession of the contraband by presenting competent evidence to connect him to the contraband recovered from his house. Buie claims that the State failed in its burden to present competent evidence to connect him with the items recovered from his house; thus, the verdict was against the weight of the evidence. Specifically, Buie claims that no *894 fingerprints were taken from the items and no analysis was performed to detect drugs on the scales and razor blades recovered from his home. Buie further claims that the only evidence offered as additional incriminating evidence connecting him to the contraband is Detective Baggett's "bombshell hearsay" testimony regarding a purchase of a rock of cocaine from Buie.
¶ 8. Specifically, Detective Baggett testified that, before securing a warrant to search Buie's residence, she arranged for a drug buy at Buie's residence to make a confidential informant's claim that he had seen drugs at Buie's residence "more accurate." Buie finds it suspicious that Detective Baggett arranged the buy to make the search warrant more accurate, but did not report the buy to the judge who issued the warrant. Buie boldly claims that Detective Baggett "wholly contradicted herself which brings into serious question her truthfulness. This is not a general credibility issue left best to the jury to resolve rather it is proof of actual falsification of evidence." Buie further denies confessing to ownership of the contraband.
¶ 9. Detective Baggett explained that she did not wish to reveal the identity of her confidential informant, so she did not include information relating to the drug buy in her recitation of probable cause. She explained that such information was not necessary since Buie was not being charged with the sale of cocaine. As probable cause for the search of Buie's residence, Detective Baggett stated that a confidential informant had seen drugs at Buie's house. She did not think it relevant to tell the judge who issued the warrant that a buy had been made from Buie's house.
¶ 10. Detective Baggett's testimony that Buie confessed to ownership of the contraband recovered from his house is competent evidence supporting Buie's constructive possession of the contraband, notwithstanding the lack of fingerprint or other physical evidence, because it is an additional incriminating fact connecting Buie to the contraband. Buie's attack on Detective Baggett's veracity does not remove her testimony from the realm of competent evidence; instead, it conjures a credibility issue on the worth of her testimony. "[T]he jury has the prerogative to pass upon the weight and worth of all the testimony." Powell, 355 So.2d at 1379. In the case sub judice, the jury obviously resolved the credibility issue in Detective Baggett's favor.
¶ 11. Accepting as true all evidence favorable to the State, as we must when reviewing a denial of a motion for new trial, Detective Baggett's testimony was competent evidence supporting Buie's constructive possession of the contraband. The trial court did not err in denying Buie's motion for new trial; thus, we affirm.
¶ 12. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE AND SENTENCE OF TWENTY YEARS IMPRISONMENT TO BE SERVED IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS ARE ASSESSED TO APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, DIAZ, IRVING, LEE, PAYNE, AND THOMAS, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
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