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https://www.courtlistener.com/api/rest/v3/opinions/2435194/ | 337 S.W.2d 680 (1960)
Jessie CHILDERS, Appellant,
v.
HACKNEY'S CREEK COAL COMPANY et al., Appellees.
Court of Appeals of Kentucky.
May 27, 1960.
*681 Dan Jack Combs, Pikeville, for appellant.
John M. Stephens, Pikeville, for appellees.
CULLEN, Commissioner.
Jessie Childers made application to the Workmen's Compensation Board for an award of compensation for total permanent disability resulting from silicosis. The referee's opinion recommended such an award. Application for a full board review was made and on April 1, 1958, an "Opinion and Order" was issued, setting aside the report of the referee and denying compensation on the ground that the employe had not sufficiently proved an injurious exposure to the hazard of silicosis in his employment with the mining company from which he sought compensation. The "Opinion and Order" bore in its caption the recitation that two of the five members of the board were not sitting. One member filed a dissenting opinion. Accordingly, the purported full board opinion and order actually was that of only two members.
On April 15, 1958, the board entered the following order:
"The Board having noted that the purported opinion and order of April 1, 1958, was concurred in by only two members of the Board, and being of the opinion that a valid order or award requires the concurrence of at least three members, the Board, upon its own motion, adjudges, decrees and orders that the opinion and order of April 1, 1958, is a nullity and is therefore cancelled and set aside, and that this cause shall be placed upon the motion docket and there remain until at least three members concur in the disposition thereof."
Notwithstanding the above order, Childers took an appeal to the circuit court from the purported order of April 1. His counsel states that the appeal was taken "out of an abundance of precaution." In addition to asking that the order be reversed on its merits, the complaint in the circuit court asked that the order be adjudged void because it had not been approved by a majority of the members of the board. The *682 circuit court held that the order was valid and affirmed the finding of the board that there was insufficient proof of injurious exposure. In addition, the court held that the employe had not given timely notice of disability to his employer.
The case is now before us on Childers' appeal from the circuit court judgment. We previously have denied, on the ground that there was an adequate remedy by appeal, a separate application filed by Childers in this Court for an order of mandamus or prohibition requiring the judgment to be set aside for want of jurisdiction of the circuit court. Childers v. Stephenson, Ky., 320 S.W.2d 797.
It is our opinion that the purported order of April 1 was a nullity and that the circuit court should have so adjudged and remanded the case to the board. It is true that subsection (1) of KRS 342.255 provides that a majority of the board shall constitute a quorum "for the transaction of business," and that under KRS 446.050 a majority of a quorum of an official body ordinarily is empowered to exercise the authority of the body. See Ray v. Armstrong, 140 Ky. 800, 131 S.W. 1039. But the rule announced by KRS 446.050 does not apply where by express words or clear implication a contrary intention is indicated with respect to a particular body. Traylor v. Cummins, 222 Ky. 438, 1 S.W.2d 530. Such a contrary intention is indicated with respect to the Workmen's Compensation Board in the last sentence of subsection (2) of KRS 342.255, which is, "Any investigation, inquiry, hearing or decision of the board and any order made by a member thereof, when approved by a majority of the members and so shown on a record of its proceedings, shall be considered an order of the board." (Emphasis supplied.) That an order of the board requires the approval of a majority of its members was recognized in Spencer v. Chavies Coal Co., 280 Ky. 152, 132 S.W.2d 746.
While we are reversing the judgment on the ground that there has been no final order of the board, we deem it appropriate to comment on the merits of the case with respect to the questions of timely notice of disability and proof of injurious exposure, since those questions may again be litigated.
As concerns the question of notice of disability, it appears to be conceded that the employe gave notice within a sufficient time after receiving a medical diagnosis that he had silicosis. However, under the 1956 amendment to KRS 342.316(2), it is required that "notice of disability shall be given to the employer as soon as practicable after the employe first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted such disease." There was evidence that some 14 months prior to the time he underwent the medical examination that resulted in the diagnosis of silicosis, Childers was experiencing shortness of breath. In the opinion and order of April 1 it was found as a fact that this shortness of breath was not such a "distinct manifestation" as reasonably to apprise Childers that he had contracted silicosis. However, the circuit court treated the question as one of law and held as a matter of law that the shortness of breath was a "distinct manifestation" within the meaning of KRS 342.316(2).
The evidence was that the reason Childers had a medical examination was not because he was concerned about his condition, but because it was required by another mining company with which he sought employment when his current employer was about to shut down its business. One of the doctors who examined him testified that Childers could not have known he had silicosis "without being told." Under the circumstances of this case we think the question of whether Childers had experienced distinct manifestations sufficient to apprise him that he had contracted *683 silicosis was one of fact, and that the evidence would sustain a finding in the negative.
With respect to the question of exposure to the hazard of silicosis in his work for the employer from whom he sought compensation, it appeared to be the view of the member of the board who wrote the opinion and order of April 1 that where an employe has contracted silicosis in its initial stages in working for one employer, and then takes employment with another, he cannot hold the latter employer liable for compensation without scientific proof that silica dust was present in the place of his latter employment in sufficient quantity to be capable of causing silicosis in a healthy man. This view was based on the provision of KRS 342.316(1) (b) that "injurious exposure" shall mean "that exposure to occupational hazard which would, independently of any other cause whatsoever, produce or cause the disease for which claim is made."
It is provided in KRS 342.316(12) that the employer in whose employment the worker was "last injuriously exposed to the hazard of, the disease" shall be liable for compensation. Obviously this contemplates that the worker also may have been exposed in some prior employment and may even have contracted the disease in a substantial degree in such prior employment. All that is required under KRS 342.316(1) (b) is that the exposure be such as could cause the disease independently of any other cause. It will be noted that under neither of the cited subsections is there any minimum time requirement for the period of exposure. Accordingly, it is not required that the employe prove he did contract silicosis in his last employment, but only that the conditions were such that they could cause the disease over some indefinite period of time.
In such cases as United States Steel Company v. Lockhart, Ky., 261 S.W.2d 643; Jones v. Crummies Creek Coal Company, Ky., 264 S.W.2d 294; Kinker v. American Radiator & Standard Sanitary, Inc., Ky., 268 S.W.2d 948; Robinson v. Peabody Coal Company, Ky., 273 S.W.2d 573, and United States Coal & Coke Co. v. Hooks, Ky., 286 S.W.2d 918, this Court held that where the employe was shown to have silicosis, and had worked for a substantial period of years for the employer from whom he sought compensation, scientific proof of the presence of silica dust in injurious quantity was not required. In the Peabody and Hooks cases the employe was engaged in the same type of work as was Childers in the instant case, namely, the operation of a mine motor car which used sand for traction purposes.
In the instant case Childers admittedly had silicosis. According to the medical testimony he had it in some degree when he began work for his last employer. However, it had not advanced to a disabling stage. He worked for his last employer for 23 months, operating the mine motor car. There was testimony that he was exposed several hours a day to dust from the sand used for traction and to rock and coal dust. At the end of the 23 months the silicosis had progressed to a disabling stage. Under these circumstances we think the board would have been entitled to find that there was injurious exposure within the meaning of the statute, without requiring scientific proof of the presence of silica dust in sufficient quantity to be capable of causing silicosis.
The judgment is reversed, with directions to remand the case to the Workmen's Compensation Board for further proceedings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435256/ | 246 F. Supp. 2d 538 (2003)
Herman Frederick JACKSON, et al., Plaintiffs,
v.
PHILLIPS BUILDING SUPPLY OF LAUREL, et al., Defendants.
No. CIV.A.2:02-CV-43PG.
United States District Court, S.D. Mississippi, Hattiesburg Division.
February 14, 2003.
*540 Timothy W. Porter, Patrick Cash Malouf, Porter & Malouf, Jackson, John A. Foxworth, Jr., Michael J. Casano, Foxworth & Casano, P.A., Gulfport, for Herman Frederick Jackson, Billy Raye Ishee, Galey Ducksworth, Jr., Roy Lee Merrick, plaintiffs.
William Lee Guice, III, Rushing & Guice, Biloxi, Fred Krutz, III, Thomas W. Tardy, III, Roland M. Slover, Forman, Perry, Watkins, Krutz & Tardy, Robert L. Gibbs, Norman E. Bailey, Jr., Brunini, Grantham, Grower & Hewes, Dudley Collier Graham, Jr., Wise, Carter, Child & Caraway, Jackson, James E. Upshaw, Finisse Ewin Henson, III, Upshaw, Williams, Biggers, Beckham & Riddick, Greenwood, Mark C. Carroll, William H. Gillon, IV, Upshaw, Williams, Biggers, Beckham & Riddick, Jackson, Antony B. Klapper, Kirkland & Ellis, Washington, DC, Brooke Ferris, III, Ferris, Burson & Entrekin, PLLC, Laurel, Mark W. Garriga, Stephanie M. Rippee, W. Scott Welch, III, Butler, Snow, O'Mara, Stevens & Cannada, Jackson, Michael J. Sweeney, Dickie, McCamey & Chilcote, Pittsburg, PA, John G. Corlew, William F. Goodman, III, John L. Low, IV, Virginia T. Munford, Katherine K. Smith, Watkins & Eager, Jackson, Joseph Michael David, Jr., Jones, Day, Reavis & Pogue, Washington, DC, Richard H. Deane, Jr., Jones, Day, Reavis & Pogue, Atlanta, GA, Charles H. Moellenberg, Jr., Jones, Day, Reavis & Pogue, Pittsburgh, PA, for Phillips Building Supply of Laurel, As Successor In Interest to Laurel Building Supply, Feltus Brothers Hardware Company, Sears, Roebuck and Company, Benjamin Moore & Company, ICI North America, Inc., d/b/a and Successor In Interest to Glidden Paints, ICI North America, Inc., d/b/a and Successor In Interest To and Fuller O'Brien Paints, NL Industries, Inc., Formerly National Lead Co., And Formerly Dutch Boy Paints; PPG Industries, Incorporated, d/b/a and Successor In Interest to Pittsburgh Paints, Sherwin-Williams Company, Does 1-10, defendants.
MEMORANDUM OPINION AND ORDER
PICKERING, District Judge.
This matter is before the Court on Plaintiffs' Motion to Remand. The parties having fully briefed the issues, and having presented oral argument, the motion is now ripe for decision.
FACTUAL BACKGROUND
The Plaintiffs, who are all Mississippi residents, used lead-based paints that they purchased from Mississippi retailers who are named as Defendants in this lawsuit. The Plaintiffs allege that as a result of exposure to lead paint they suffer from various ailments, including neurological and psychological deficits; high blood pressure and related cardiovascular problems; gout; and renal injuries. The Plaintiffs first purchased lead-based paints from the resident Defendants beginning in the 1950s. The last purchase and exposure alleged was from the 1970s. The Plaintiffs were diagnosed with various symptoms and ailments throughout the 1970s, 1980s, and 1990s. There is no evidence, nor allegation, suggesting that a physician traced the cause of these conditions to exposure to lead-based paint more than three years prior to the filing of the complaint in state court. The Plaintiffs filed their complaint in the Circuit Court of Jones County, Mississippi on January 14, 2002.
*541 STANDARD OF REVIEW
The removal statutes are to be strictly construed against removal. Brown v. Demco, Inc., 792 F.2d 478 (5th Cir. 1986); Butler v. Polk, 592 F.2d 1293, 1296 (5th Cir. 1979). The Defendants, as the removing parties, bear the burden of establishing the Court's jurisdiction. See Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S. Ct. 35, 66 L. Ed. 144 (1921); De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.1995); Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir.1993). Generally, where there are close questions whether to remand an action, the Court will resolve the issue in favor of remand. OPNAD Fund, Inc. v. Watson, 863 F. Supp. 328, 330 (S.D.Miss. 1994); citing Laughlin v. Prudential Ins. Co., 882 F.2d 187, 190 (5th Cir.1989). Any ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand. Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir.2000).
Through decades of Supreme Court jurisprudence, it is axiomatic that federal courts are courts of limited jurisdiction. See generally B., Inc. v. Miller Brewing Co., 663 F.2d 545 (5th Cir.1981). All federal district courts are well advised not to poach upon the territory of a coordinate judicial system. Id. at 548. "When a federal court acts outside its statutory subject-matter jurisdiction, it violates the fundamental constitutional precept of limited federal power." Marathon Oil Co. v. Ruhrgas, 145 F.3d 211, 216 (5th Cir.1998) (en banc). Under our doctrine of "federalism" this Court should not usurp authority over cases that are properly in state court. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S. Ct. 868, 85 L. Ed. 1214 (1941); Butler, 592 F.2d at 1296.
This case involves allegations that the Plaintiffs fraudulently joined resident defendants solely for the purpose of defeating diversity jurisdiction. In determining the issue of fraudulent joinder, the Court may pierce the pleadings and employ a summary-judgment type proceeding. Badon v. RJR Nabisco, 224 F.3d 382, 393-94 (5th Cir.2000); Burden v. Gen'l Dynamics Corp., 60 F.3d 213, 217 (5th Cir.1995). Whether to pierce the pleadings or not to pierce the pleadings is a matter of discretion for the trial court. See Burden, 60 F.3d at 217 ("in testing for fraudulent joinder the district court in its discretion may `pierce the pleadings'"). Fifth Circuit precedent also warns trial courts not to "pre-try" cases. Hart v. Bayer Corp., 199 F.3d 239, 246 (5th Cir. 2000). The Defendants agree that this case can be resolved based on the allegations in the pleadings.
POSITIONS OF THE PARTIES
The Defendants contend that the applicable three-year statute of limitations has expired with regard to Plaintiffs' cause of action; therefore, there is no possibility of recovery against the resident Defendants. They assert that the Plaintiffs were last exposed to lead-based paint in the 1970s. The symptoms and ailments began to present themselves more than three years before the filing of the present lawsuit. The Defendants contend that the Plaintiffs should have known that exposure to lead containing paint caused their conditions, or that the Plaintiffs were under an obligation to discover the cause of these symptoms in a timely fashion. As stated in paragraph eight of the Defendants Notice of Removal, "[g]iven that the Plaintiffs claim that their last `use' and `purchase' of lead containing paints from the Mississippi Defendants was in the 1970s, Plaintiffs should have sued the local retailers long ago when they were first diagnosed with their unspecified ailments."
*542 The Plaintiffs counter that under Mississippi discovery rule for latent diseases, the cause of action did not accrue until the Plaintiffs discovered both the injury or disease and its cause. Plaintiffs contend that the cause of Plaintiffs' ailments, i.e. exposure to lead containing paints, was not discovered by physicians more than three years prior to the filing of this lawsuit. As such, the Plaintiffs argue that their complaint was timely.
ANALYSIS OF STATUTE
The parties agree that this case is controlled by Miss.Code Ann. § 15-1-49, which provides:
(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.
(2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.
This section codifies a discovery rule for "latent injury or disease." However, the trigger for starting the running of the statute of limitations is not the discovery of the "disease" but rather the discovery of "the injury." The statute draws a distinction between disease and injury. The statute does not begin to run upon the discovery of the "disease" but upon discovery of the "injury," which involves not only the result (the disease or injury) but also the cause since injury implicates either an accident or tort as the cause. Thus under the wording of the statute, the statute of limitations does not begin to run until the injured party knows both the result, i.e. the injury or disease, and the cause, i.e. the injury.
ANALYSIS OF CASE
The Defendants argue that Owens-Illinois, Inc. v. Edwards, 573 So. 2d 704 (Miss. 1990) is controlling law that predicts how the Mississippi Court would rule on the issue raise by Plaintiffs' Motion to Remand. The Court in Owens-Illinois stated the issue presented in that case as "whether Edwards' claim is time barred under Miss.Code Ann. § 15-1-49 (1972), or whether a `discovery' rule exists which is applicable in a products liability and negligence action involving latent diseases." Id. at 704. The Court also stated that "the question presented is simply this: When did Charles Edwards' cause of action accrue?" Id. at 705.
It should be noted that there was no statutory discovery rule at the relevant time period involved in Owens-Illinois, because Miss.Code Ann. § 15-1-19 (1972) did not contain subsection (2) at that time. The Mississippi Supreme Court affirmed the circuit court's finding that there was a discovery rule even before the Legislature enacted subsection (2) of § 15-1^9.
The trial judge in Owens-Illinois concluded that " `[t]he operative time is when the plaintiff can reasonably be held to have knowledge of the fact that he or she has been injured, the cause of the injury, and the causative relationship between the injury and the injurious act or product.'" Id. at 706. That is the same result now argued for by Plaintiffs. The Supreme Court noted that "because of the mixed signals that this Court has sent out on the matter of accrual, both sides in this cause are able to cite convincing authority." Id. at 707.
The Court noted that Miss.Code of 1972, § 15-1-36, which deals specifically with medical malpractice, provides a statute of limitations which begins to run "from the date the alleged act, omission, or neglect shall or with reasonable diligence might *543 have been first known or discovered." Id. The Court concluded
We affirm the Circuit Court's finding that a discovery rule exists in conjunction with § 15-1-49 (1972) in the case of a negligence or products liability cause of action involving latent disease. To alleviate any possible confusion, we find that the discovery rule adopted is identical to the rule provided in Miss.Code Ann. § 15-1-49(2) (Supp.1990). The cause of action accrues and the limitations period begins to run when the plaintiff can reasonably be held to have knowledge of the injury or disease. In the case at bar, that date is August 26, 1986, the date Charles Edwards was diagnosed with asbestosis. Though the cause of the injury and the causative relationship between the injury and the injurious act or product may also be ascertainable on this date, these factors are not applicable under § 15-1-49(2), as they are under Miss.Code. Ann. § 15-1-36. The judgment of the Circuit Court is modified to the extent that it differs from the statutory rule.
(emphasis added). Id. at 709. It is this underlying language that Defendants rely on.
In Owens-Illinois, the plaintiff filed a motion for partial summary judgment and requested a ruling that his cause of action was not barred by § 15-1-49. Id. at 706. Defendants filed a cross motion requesting the court find that the cause of action was time barred. Id. The trial court granted summary judgment for plaintiff finding that Edwards' cause of action was not barred. Id. at 705-06.
The facts of that case were that Edwards had last been exposed to asbestos on December 31, 1976. He began experiencing symptoms that indicated asbestosis in 1980 and in 1983. It was recommended by medical examiners at his employer's place of business that he should be checked for the possibility of asbestosis. X-rays revealed no evidence of asbestosis. However, on August 26, 1986, Edwards was diagnosed with "pleural asbestosis." The defendants argued that the statute of limitations began to run at the time Edwards was last exposed to asbestos. Id. at 705. The decision in Owens-Illinois was somewhat contradictory. The trial court granted summary judgment and the Supreme Court affirmed partial summary judgment thus concluding as a matter of law that Edwards' claim was not time barred; however, in the last paragraph of the opinion, the Court wrote that one of the defendants "raises a separate issue, that summary judgment was inappropriately granted against it because Charles Edwards knew or should have known of his asbestosis as early as 1983. We find this issue to be premature for disposition at this time.... [Defendants ... may in the trial court further litigate the issue of what Charles Edwards knew and when he should have known it." Id. at 709. Consequently while on one hand it appears that the Mississippi Supreme Court ruled as a matter of law that Edwards was not time barred, on the other hand, the Mississippi Supreme Court, in the last paragraph, said this issue could still be litigated before the jury.
ANALYSIS OF SCHIRO V. AMERICAN TOBACCO CO., 611 So. 2d 962 (Miss.1992)
The Court in Schiro wrote
Here we face the question of when the statute of limitations commences with regard to a claim based on negligence arising out of an injury allegedly sustained as a result of cigarette smoking. We hold that the statute commences upon discovery of an injury and that discovery is an issue of fact to be decided by a jury where there is a genuine dispute.
*544 Id. at 962. The trial court in that case had ruled in favor of the cigarette manufacturers, and the Supreme Court reversed and remanded. The plaintiff Schiro argued that there existed a "genuine issue of material fact relating to the defense of the statute of limitations and that such fact [was] within the province of the jury to decide the time a cause of action accrue[d]." Id. at 964.
Schiro started smoking in 1943 at age 17. She was familiar with the Surgeon General's warning in 1964. In 1970, she was diagnosed with emphysema. She was advised by several physicians to quit smoking but she continued to smoke. In 1974, one of her physicians was concerned that she might have throat cancer but further examination indicated to the contrary. She had aortoiliac bypass surgery in 1975 and " `assumed that smoking damaged her arteries,'" nevertheless she continued to smoke. She coughed up blood in 1981. She believed at that time she had cancer, but her examining physician determined that she did not have cancer. In December 1981, a treating physician performed a chest x-ray which detected a small mass. This was confirmed by another x-ray on December 29, 1981, "which revealed lung disease in her chest. On January 24, 1982, Schiro was admitted to the Mississippi Baptist Medical Center, where Dr. Johnson performed an examination on Schiro, and subsequently informed her that the mass was malignant." Id. at 963. The Mississippi Supreme Court then held "that in the instant case the cause of action accrued on January 26, 1982, when the doctor diagnosed that the mass was cancerous." Id. at 965. Defendants argued that all the previous health problems, specifically those which occurred in December 1981, should have demonstrated to plaintiff that she had a cause of action. Id. at 964. The Supreme Court responded saying
the contention that Schiro should have brought suit on December 27, or 29, 1981, or within six years of those dates after discovery of the mass also fails. It could be argued that at this point, Schiro was aware and, in fact, knew that she had sustained an injury. However, as aforementioned, Schiro did not actually know that she had cancer, an injury connected with smoking.
Id. at 965.
The Mississippi Supreme Court in Schiro ruled that the statute of limitations did not begin to run until "Schiro actually knew that she had cancer.... an injury connected with smoking." Id. Thus, the Mississippi Supreme Court in 1992 required discovery of both the disease (cancer) and the cause of the injury (smoking). It should likewise be noted that in the Owens-Illinois case the Mississippi Supreme Court did not have to rule as to whether or not causation was known or whether that was relevant or not relevant. All the Court had to determine in Owens-Illinois was that there was a discovery rule as to latent injury or disease under Mississippi law even before the Legislature had codified it. Charles Edwards was well aware that he had been exposed to asbestos and that it might cause him injury. Consequently, when he was diagnosed with asbestosis, there was no question as to the cause of the disease. In fact, the diagnosis itself conveyed knowledge of causation. "Asbestosis" is caused by asbestos. The statement relied on by Defendants in Owens-Illinois was thus dictum.
There are a couple of inconsistencies in the Schiro opinion that bear mentioning as well. First, the Supreme Court recognized that when an injury should have reasonably been discovered "is an issue of fact to be decided by a jury where there is a genuine dispute;" nevertheless, although the issue of when plaintiff reasonably *545 should have discovered her injury was hotly contested, the Supreme Court as a matter of law found that it did not begin to run until "January 26, 1982, when the doctor diagnosed that the mass was cancerous." Id. at 962, 965. It should further be noted that Schiro had not asked the court to rule on this issue as a matter of law but that she had simply argued that this was an issue for the jury.
ANALYSIS OF KEMP v. G.D. SEARLE & CO., 103 F.3d 405 (1997)
The Fifth Circuit addressed the statute of limitations issue in Kemp v. G.D. Searle & Co., 103 F.3d 405 (1997). In that case, plaintiff used an "intrauterine device (`IUD')" in 1977 and was diagnosed with "pelvic inflammatory disease (`PID')" in 1984. Id. at 406. The Fifth Circuit noted "it is unclear whether Hakel [the physician] indicated to Kemp at the time that PID had been caused by the IUD." Id. The Court found that in December 1985 "Kemp was told at least of the connection between the IUD and her PID and that PID can lead to tubal scarring which, if severe enough, can result in infertility." Id. At that time, the treating physician would not do any diagnostic work to determine if she was infertile, on the basis that such a procedure was too invasive unless she first tried unsuccessfully to conceive for 18 months. Years later, in 1993, Kemp in receiving treatment for other medical problems learned for the first time that "her fallopian tubes were severely scarred" and that she was infertile. Id. Kemp claimed that she had two causes of action, one for her PID and the other for her infertility. She acknowledged that her claim for PID was time barred. Id. The Fifth Circuit ruled that she did not have two causes of action but merely one cause of action and that the statute of limitations began to run when the PID was diagnosed, stating "[w]e hold that Kemp had a single cause of action that accrued when she discovered the PID and its source ..." (emphasis added). Id. at 407. Consequently the Fifth Circuit ruled that plaintiff not only had to know when she had the injury but she also had to know its source. Id. Defendants argue that this statement was dictum and was not necessary to the Court's decision, but at the very conclusion of the opinion the Fifth Circuit reiterates this same holding: "We simply hold that the district court was correct in concluding that Kemp's injury was the PID and that the statute of limitations began to run when she knew of her injury and its cause, not when she later discovered all of the consequences and complications of the PID." (emphasis added). Id. at 409. Thus, in two places in its opinion, the Fifth Circuit Court of Appeals interpreting the Owens-Illinois case concluded that the plaintiff had to know about both the injury and its cause before the statute of limitations began to run.
Although defendant makes a persuasive argument that the Mississippi Supreme Court in Owens-Illinois stated that knowledge of causation was not necessary before the statute of limitations began to run, such a finding was dictum. The finding in Schiro, which was a later case, was not dictum. When the Fifth Circuit interpreted Owens-Illinois, and found that the statute did not begin to run until discovery of the injury and its cause, this was likewise dictum. Nevertheless, if the Fifth Circuit so interpreted Owens-Illinois, it is difficult for this Court to conclude there is no possibility that Plaintiffs can prevail on their statute of limitations argument in state court against the resident Defendants. Moreover, the Mississippi Court of Appeals, in Cannon v. Mid-South X-Ray Co., 738 So. 2d 274 (Miss.App.1999), analyzed Owens-Illinois, Schiro, and Kemp and reached the same basic conclusion as *546 this Court. The Cannon court stated that "although [plaintiff] was aware that she was suffering from numerous illnesses and later thought that her problems might be connected with her employment, no doctor had definitively diagnosed her condition until February 9, 1993." The court held that "her injury did not accrue until February 9, 1993, when Dr. McCune diagnosed her problems and the cause." Id. at 277 (emphasis added). Thus, this Court concludes that under Mississippi law, there is a possibility that Plaintiffs' cause of action did not accrue until a physician diagnosed the problem and its cause. At the very least, there is an ambiguity in Mississippi law that should be construed in favor of remand.
This Court has noted the ambiguities or contradictions in Owens-Illinois, Schiro, and Kemp. The Mississippi Supreme Court on numerous occasions has concluded that where there are factual disputes the question of whether or not the statute of limitations has run is an issue for the jury. This Court is not called upon to determine whether or not plaintiff will or even probably will prevail, but that there is a possibility that Plaintiffs will prevail. All ambiguities, both factual and legal, are to be construed in favor of remand. Consequently this case should be remanded. In light of the complexity of the legal questions presented, the Court finds that the Plaintiffs' request for sanctions for the filing of a frivolous removal is denied.
THEREFORE, IT IS ORDERED AND ADJUDGED that Plaintiffs' Motion to Remand is GRANTED. Plaintiffs' Motion for Sanctions is DENIED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435275/ | 897 S.W.2d 171 (1995)
STATE of Missouri ex rel. Laurie Kennett WILSON, Relator,
v.
The Honorable J. Michael BROWN, Judge, 30th Judicial Circuit, Polk County, Missouri, Respondent.
No. 19908.
Missouri Court of Appeals, Southern District, Division Two.
April 13, 1995.
*172 Lisa C. Henderson, Buffalo, for relator.
Ralph W. Gilchrist, Bolivar, for respondent.
GARRISON, Presiding Judge.
Relator (Wife) contends that Respondent should be ordered to dismiss, for lack of jurisdiction, a suit for dissolution of marriage filed by her husband in Polk County, Missouri because of her pending dissolution action in Texas, or in the alternative to cease further proceedings so long as the Texas suit is pending. The primary issue argued by the parties is whether the Missouri or Texas court has jurisdiction to decide child custody issues.
Preliminarily, we note that Husband has filed a motion to dismiss or alternatively a motion to strike Wife's statement of facts and argument from her brief for failure to comply with Rule 84.04(c) and (h).[1] He contends, correctly, that Wife's brief contains violations of the Rule 84.04(c) requirement that the statement of facts "shall be a fair and concise statement of the facts ... without argument," and Rule 84.04(h) which requires that "[a]ll statements of fact and argument shall have specific page references to the legal file or the transcript." He also contends that Wife failed to file transcripts of pertinent court proceedings. With reference to the latter complaint, we note that Rule 84.24(g) provides:
The petition for the writ, together with the suggestions in support thereof, any exhibits accompanying the petition, the writ and return of service thereon, the answer made to the petition for the writ, and all other papers, documents, orders, and records filed in the appellate court shall constitute the record, and no record need be prepared in the appellate court.
Additionally, Husband could have filed any other portions of the record deemed necessary for a complete review of the issue. See Rule 81.12(c).
We do not overlook or condone the fact that Wife's statement of facts contains statements which are both argumentative and unsupported by the record presented to us. The same is true of her failure to make *173 specific references to the record in support of statements contained in her brief. We are, however, desirous of deciding cases on the merits where possible and will do so in this case. Husband's motions are, therefore, overruled. We do note, however, that Wife also raises matters in the argument portion of her brief which are not within the scope of her point relied on. Our review is restricted to the issue raised in the point relied on. See Thummel v. King, 570 S.W.2d 679, 685 (Mo. banc 1978); In Interest of W.S.M., 845 S.W.2d 147, 149, n. 1 (Mo.App.W.D.1993).
The facts involved in this case are lengthy and detailed. Summarized, they are as follows:
Wife filed a dissolution of marriage action in Polk County, Missouri on April 19, 1994. Her petition alleged, among other things, that the two children born of the marriage (then ages two and ten respectively) had resided with her and Husband at Bolivar, Missouri from October 1, 1993 until the filing of the petition. According to the meager record before us, however, it appears that Wife had actually taken the children to Texas three days earlier, on April 16, 1994. After having filed an answer, Husband filed a motion seeking temporary custody, which the court sustained effective August 1, 1994. The record indicates that the children remained in the actual custody of Husband in Missouri from at least August 1, 1994 until the time of the proceedings which are now before this court.
Wife filed an amended petition on August 24, 1994 seeking permission to remove the children to Texas. In that petition she alleged that "[i]n accordance with Section 452.480" the children had resided with her and Husband at Bolivar, Missouri during the six months preceding the filing of the petition in that suit. Thereafter, Husband filed a motion for leave to file a Counter-Petition For Dissolution of Marriage which was scheduled to be heard on October 20, 1994 at 4:00 P.M. At 2:50 P.M. on October 20, however, Wife filed a Dismissal of the action pursuant to Rule 67.02(a).[2] Five minutes later she filed an "Original Petition For Divorce" in the District Court of Wise County, Texas in which she listed the present residence of the children as Bridgeport, Texas.[3] At 4:25 P.M. on the same day, Husband filed the subject suit for dissolution of marriage in the Circuit Court of Polk County, Missouri in which he sought primary custody of the children. Thereafter, Husband filed an amended petition which contained allegations that Missouri was the "home state" of the children from their births except for a period of April 16, 1994 to June 1, 1994, during which time Wife had the children in Texas; that Wife had filed the action in Texas; that it was in the children's best interests for the Circuit Court of Polk County, Missouri to assume jurisdiction; and that he and the children had significant connections with Missouri where there was substantial evidence concerning their "present and future care, protection, training and personal relationships."
Wife filed a Special Entry of Appearance For Purpose of Contesting Jurisdiction and a Motion To Dismiss Husband's suit claiming, among other things, that jurisdiction was vested in the Texas court because of the suit previously filed there. After the trial court overruled the Motion To Dismiss, Wife filed a Petition For Writ of Mandamus or Alternatively For Writ Of Prohibition with this court. Our Preliminary Order In Prohibition followed. We now hold that our preliminary writ was improvidently granted as to the child custody issues and we quash the same to that extent but otherwise make it absolute.
Wife argues in this court that because of Rule 67.02(a) the voluntary dismissal of her Missouri suit was a matter of right requiring *174 no court order. As a result, she argues that the dismissal of that suit was effective on its filing, five minutes before she filed her dissolution action in Texas. The import of this argument is that the Texas court acquired exclusive jurisdiction of the controversy because no suit was pending in Missouri when it was filed.
Wife proceeds to base much of her argument on §§ 452.440-.550, known as the Uniform Child Custody Jurisdiction Act (Uniform Act), which was adopted in Missouri in 1978. She also acknowledges in the Suggestions in support of her petition filed with this court that the Uniform Act had been adopted in Texas.[4] The Uniform Act provides for resolution of conflicts in jurisdiction between the courts of different states in actions involving child custody. See State ex rel. Laws v. Higgins, 734 S.W.2d 274, 277 (Mo.App.S.D. 1987). The Missouri version of the Uniform Act provides, in pertinent part:
452.450. Jurisdiction.1. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state:
(a) Is the home state of the child at the time of commencement of the proceeding; or
(b) Had been the child's home state within six months before commencement of the proceeding and the child is absent from this state for any reason, and a parent or person acting as parent continues to live in this state; or
....
"Home state" is defined in § 452.445(4) as:
the state in which, immediately preceding the filing of custody proceeding, the child lived with his parents, a parent, an institution; or a person acting as parent, for at least six consecutive months.... Periods of temporary absence of any of the named persons are counted as part of the six-month or other period;
The Texas version of the Uniform Act has similar provisions. V.T.C.A., Family Code §§ 11.52 and 11.53.
The general rule is that a court's jurisdiction over a case depends on the facts existing at the time jurisdiction is invoked. Davis v. Davis, 799 S.W.2d 127, 131 (Mo. App.W.D.1990). As it relates to jurisdiction of child custody issues based on "home state" status, this is when the petition is filed. Id. at 132. See also In Re Marriage of Welsh, 714 S.W.2d 640, 649 (Mo.App.S.D.1986), and § 452.450.1(1)(a) and (b). In the instant case, the record presented to us indicates that the two children lived with their parents in Polk County, Missouri from birth until Wife took them to Texas on or about April 16, 1994, three days before filing her original petition for dissolution in Missouri on April 19. In that petition, she alleged:
That the places where the minor children have lived within the last six months, and the names and present addresses of the persons with whom said children have lived during that period are as follows:
(a) From October 1, 1993, to the present date, said children have resided with Petitioner and Respondent at Route 4, Box 150, Bolivar, Missouri 65613.
The record indicates that at some point between June 1, 1994 and August 1, 1994 Wife returned the children to Missouri.[5] Pursuant to Husband's motion, the court entered an order on July 26, 1994 awarding him temporary custody of the children effective August 1, 1994. We also glean from the record that the children remained with Husband at least from that time until Wife sought a writ of prohibition or mandamus in this court.
As indicated earlier, in October 1994 Wife dismissed her Missouri action and filed the suit in Texas. Husband filed the subject suit *175 in Polk County later the same day. In response, Wife filed a motion to dismiss Husband's Missouri suit claiming that jurisdiction of the matter rested with the Texas court because of the suit pending in that state. Apparently in accordance with § 452.465,[6] the judge in Polk County, Missouri (Judge Brown) contacted the court in Wise County, Texas concerning the matter of jurisdiction over the child custody issues. In a letter dated October 27, 1994, Judge Brown sent the Texas judge copies of documents from the Missouri cases and said, "[h]opefully, we will be able to resolve the jurisdictional problems, particularly as regards the children under the UCCJA." On November 4, 1994, the Texas judge wrote Judge Brown saying that a hearing had been held in the Texas court on October 31, 1994 and further proceedings were stayed pending a determination of the appropriate jurisdiction under the Uniform Act. At that time, the Texas judge also told Judge Brown:
It is my feeling that if your Court assumes jurisdiction under your new case... that I should decline jurisdiction on the theory that your Court would be the appropriate forum since obviously the children have lived in Missouri from birth until the present, except for that period of April 19, 1994, [sic] through August 1, 1994.
If your Court notifies me of your intention to assume jurisdiction of the children, I will decline jurisdiction.
On November 14, 1994, Judge Brown wrote the Texas judge saying that he had, on November 2, 1994, overruled Wife's motion to dismiss Husband's Missouri suit. He also said:
I concur with your determination that Missouri is the appropriate jurisdiction to determine custody of the children in this matter. Accordingly, this letter will serve as notification to you that I have and will continue to assume jurisdiction of the custody of the minor children in the above-styled case.
The trial court later received a copy of an order entered by the Texas court in which it declined jurisdiction "of all matters relating to the custody of the minor children herein."
In our view, the Circuit Court of Polk County, Missouri has jurisdiction to proceed concerning the issues of child custody. It is true that the children had not been physically present in Missouri for a continuous period of six months prior to October 20, 1994 when Husband's suit for dissolution was filed in Polk County, because Wife had them in Texas part of that time. By way of background, however, various pleadings of the parties indicate that the children were residents of this state for more than six months prior to the filing of Wife's original dissolution action in Polk County. At that time, Missouri was the "home state" of the children pursuant to § 452.450.1(1)(a). In fact, Wife in effect admitted that in her original and amended petitions for dissolution.
We believe the absence of the children from April 16, 1994 until they were returned to this state between June 1 and August 1 was a temporary absence within the meaning of § 452.445(4).[7] Under that statute, such period would be considered a part of the prior and subsequent residency period in Missouri for the purpose of determining *176 "home state" status. That interpretation also results in Missouri being their "home state" at the time Husband's suit was filed in Missouri in October, at which time he had actual physical custody of the children in Missouri and the children had been physically present in this state continuously since at least August 1, 1994. See Glanzner v. State, DSS, 835 S.W.2d 386, 390 (Mo.App.E.D. 1992).
The absence of the children from Missouri between April and sometime between June and August would not have terminated Missouri's status as "home state" for another reason. It is clear that Missouri was the "home state" of the children prior to their removal to Texas. Section 452.450.1(1)(b) provides that jurisdiction of a "home state" continues for six months even though the child may be in another state, so long as one parent, as was true in the instant case, continues to live in this state. See Dobyns v. Dobyns, 650 S.W.2d 701, 706 (Mo.App.W.D. 1983). When they returned to Missouri at least by August 1, 1994, the Missouri "home state" status still applied.
There is also no indication in the record that any state other than Missouri had acquired "home state" status pursuant to the Uniform Act. Certainly, Texas was never the "home state" of the children under either the Missouri or Texas version of the Uniform Act because they never resided there for six consecutive months. See Elbert v. Elbert, 833 S.W.2d 884, 887 (Mo.App.E.D.1992). Pursuant to § 452.450.1(4), Missouri has jurisdiction to determine custody if:
It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivision (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction.
Finally, while Wife argues in her brief that Texas has jurisdiction pursuant to the Uniform Act,[8] she acknowledges that likewise Missouri has such jurisdiction.
Accordingly, we hold that the Circuit Court of Polk County has jurisdiction to proceed with the child custody issues raised in Husband's suit. This result is in accordance with the purpose of the Uniform Act to create a preference, concerning jurisdiction of custody issues, for the state with the most significant connections with the child and family. See Piedimonte v. Nissen, 817 S.W.2d 260, 270 (Mo.App.W.D.1991).
Husband disputes the jurisdiction of the Texas court only as to the issues of child custody. He concedes in his brief that the Texas court has jurisdiction as to the "dissolution of marriage." Although it is not preferred, there is precedent for the bifurcated resolution of a domestic relations case. See Bell v. Bell, 849 S.W.2d 194 (Mo.App.W.D. 1993). Our preliminary writ is, therefore, quashed as to child custody but otherwise is made absolute.
CROW and PREWITT, JJ., concur.
NOTES
[1] All references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1994, V.A.M.S.
[2] Rule 67.02(a) provides in pertinent part: "Except as provided in Rule 52, a civil action may be dismissed by the plaintiff without order of the court anytime prior to the introduction of evidence at trial." Wife argues that pursuant to Rule 67.02(a) she was entitled to dismiss her suit as a matter of right because it occurred before the introduction of evidence at trial and that the dismissal was effective upon filing without the necessity of a court order. Husband does not dispute Wife's interpretation or application of Rule 67.02(a) in the instant case.
[3] The record before us indicates agreement of the parties that both of the children were then in the actual custody of Husband in Missouri.
[4] Texas adopted the Uniform Act in 1983 with modifications which are inconsequential as they relate to this opinion. See V.T.C.A., Family Code §§ 11.51 to 11.75.
[5] An amended petition filed by Husband alleged that the children had been in Missouri from birth to April 16, 1994, from June 1 to July 11, 1994, and from August 1, 1994 until the time of that filing on October 25, 1994. Wife, in her brief and in an affidavit in the Texas case, stated that the children were in Texas with her from April 16, 1994 until August 1, 1994.
[6] Section 452.465 provides, in pertinent part:
1. A court of this state shall not exercise its jurisdiction under sections 452.440 to 452.550 if, at the time of filing the petition, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with sections 452.440 to 452.550, unless the proceeding is stayed by the court of that other state for any reason.
2. ... If the court has reason to believe that proceedings may be pending in another state, it shall direct an inquiry to the state court administrator or other appropriate official of that state.
3. If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction, it shall stay the proceeding and communicate with the court in which the other proceeding is pending in order that the issue may be litigated in the more appropriate forum and that information may be exchanged in accordance with sections 452.530 to 452.550.
[7] Section 452.445(4) provides in part that "[p]eriods of temporary absence of any of the named persons are counted as part of the six-month or other period."
[8] She does not explain how this conclusion was reached. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435279/ | 897 S.W.2d 198 (1995)
STATE of Missouri, Plaintiff-Respondent,
v.
John D. VARVERA, Defendant-Appellant.
No. 19582.
Missouri Court of Appeals, Southern District, Division One.
April 27, 1995.
*199 Gary E. Brotherton, Office of the State Public Defender, Columbia, for defendant-appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Becky Owenson Kilpatrick, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
SHRUM, Chief Judge.
Defendant John D. Varvera appeals his convictions by a jury of burglary in the second degree, § 569.170, RSMo 1986, and stealing, § 570.030, RSMo 1986. The trial court sentenced Defendant to two consecutive five-year prison terms as a prior offender under § 557.036.4, RSMo 1990, and § 558.016.2, RSMo 1990.
Defendant's single point requests that we review for plain error the trial court's failure to sua sponte declare a mistrial because of a witness' alleged reference to Defendant's prior criminal activity. After reviewing under the plain error standard, we affirm.
In the late summer or early fall of 1992, Defendant and his friend, John Dukes, were discussing a burglary that had occurred at the Tonka Hills Restaurant in Linn Creek, Missouri. Dukes, who worked weekends at the restaurant, told Defendant the thief had "spent a lot of time" prying through a door when he could easily have climbed on top of a walk-in freezer and "kicked [the] vent in." "[I]t would be real easy to kick it in and you could be in the restaurant in about five to ten seconds with a good kick." Dukes told Defendant "how stupid it was.... `[I]f I was going to be a criminal ... I'd spend more time casing the place....'"
Dukes then told Defendant, "[I]t would be worthless to break into the restaurant," however, because "all the money [in the restaurant] was locked up in a big safe in the office every night when they closed...." Defendant responded that if he were going to rob the place, he would just take the safe with the help of another person. Nothing more came of this conversation at that time.
On December 2, 1992, Defendant spent part of the evening with his friends Jason Tewell and Todd Shank. The three decided to go out for a drive and passed by the Tonka Hills Restaurant. At some point, Defendant began to talk about the safe in the restaurant. Tewell, however, did not wish to get involved and was taken to his home. As *200 Tewell explained it, "I just said that I would stay home ... [a]nd I just went to bed."
After Defendant and Shank left Tewell's home, they drove back to the Tonka Hills restaurant in Defendant's white Ford pickup truck. Their plan was for Defendant to enter the restaurant through the opening over the outdoor freezer while Shank stood guard. Defendant carried out the initial phase of the plan by kicking in the vent above the freezer and climbing through the opening. Shank then heard noises from within the restaurant that sounded "like something was being moved."
Approximately ten minutes later, Defendant told Shank to come inside through a window, where Shank observed a safe that had been dragged across the kitchen to within twelve feet of the door. The two then went outside the restaurant, "went up [to] a bluff in the back of [the restaurant], sat up there and we watched for police.... [We] didn't know if there might be a burglar alarm or something." They then retrieved Defendant's truck, "drove over to the back door,... threw the safe in the back, and ... left."
Defendant and Shank then drove back to Tewell's home. Upon arriving, Defendant and Shank told Tewell, "We got it" and asked Tewell if he wanted to help. Tewell answered, "No, leave me alone," whereon Defendant and Shank left. They went to the home of another of Defendant's friends in Morgan County. There, they forced the safe open, removed the money therein, and divided the spoils three ways. Defendant and Shank then threw the safe into a roadside ditch where it was later discovered and recovered by law officers.
During their initial investigation, police found a tire tread mark near the back door of the restaurant. Later, after Shank gave the police a statement implicating himself and Defendant, he also identified Defendant's vehicle as the one used in the burglary. The police then matched the right front tire tread on Defendant's pickup truck to the tread mark left at the restaurant during the burglary. Both Defendant and Shank were charged. Defendant's conviction followed.
In his single point on appeal, Defendant contends the trial court plainly erred when it did not, sua sponte, declare a mistrial because of a witness' alleged reference to Defendant's prior criminal activity. The testimony of which Defendant complains came as witness Tewell explained why he parted company with Defendant and Shank on the evening of the Tonka Hills burglary:
"Q. [by Prosecutor] All right. What happened next?
A. [by Shank] ... [S]omething was mentioned about a safe, and I was feeling uncomfortable, I didn't know what was going to happen or nothing, so I just said that I would stay home, that I was feeling tired. And I just went to bed.
Q. What do you mean you were feeling uncomfortable?
A. I just, two or three years ago, I'm not sure exactly what date, but me and Mr. Varvera and a kid named Mike Gosling
Q. Wait a second, wait a second. Do you have a prior criminal history?
A. Yes.
Q. And you're on probation?
A. Yes, sir.
Q. And you were on probation at that time?
A. Yes.
Q. And you were uncomfortable feeling related to not wanting to get involved in something?
A. Yeah. I wanted to make sure I didn't get in no problem if any trouble had occurred." (Emphasis ours.)
Defendant argues that the portion of Shank's testimony emphasized by italics was highly prejudicial as it "connected him with Tewell's criminal record." He contends such testimony is a "clear and unmistakable reference to [Defendant] having at least been arrested, and perhaps convicted, on previous occasions." He insists, therefore, that such testimony runs afoul of the general rule concerning the admission of evidence of uncharged crimes, wrongs, or acts which says that uncharged misconduct is inadmissible for showing the propensity of an accused to *201 commit such crimes. See State v. Bernard, 849 S.W.2d 10, 13[1] (Mo. banc 1993).
Defendant acknowledges the general principle that declaration of a mistrial in a criminal case is "a drastic remedy warranted only by the most compelling of circumstances." State v. Johnson, 700 S.W.2d 815, 819[8] (Mo. banc 1985). A mistrial is "to be utilized only when there is [a] grievous error which cannot be remedied otherwise." State v. Beal, 470 S.W.2d 509, 516 (Mo. banc 1971). The decision to grant a mistrial is a matter for the sound discretion of the trial court and should be honored by the appellate courts unless there is a clear showing in the record that the trial court abused its discretion. State v. Gamble, 781 S.W.2d 820, 823 (Mo. App.1989).
Defendant also concedes that the claim of error he now asserts was not preserved for appellate review as it was not presented to the trial court in the motion for new trial. He requests that we examine his first point under the plain error standard of Rule 30.20.[1]
Plain error and prejudicial error are not synonymous terms. State v. Valentine, 646 S.W.2d 729, 731[4] (Mo.1983). Relief under the plain error standard is granted only when an alleged error so substantially affects a defendant's rights that a manifest injustice or miscarriage of justice inexorably results if left uncorrected. State v. Hadley, 815 S.W.2d 422, 423[1] (Mo.banc 1991). Appellate courts use the plain error rule sparingly and limit its application to those cases where there is a strong, clear demonstration of manifest injustice or miscarriage of justice. State v. Collis, 849 S.W.2d 660, 663[1] (Mo.App.1993). The determination of whether plain error exists must be based on a consideration of the facts and circumstances of each case. State v. Cline, 808 S.W.2d 822, 824[5] (Mo.banc 1991). A defendant bears the burden of demonstrating manifest injustice or miscarriage of justice. State v. Harrison, 864 S.W.2d 387, 389[3] (Mo.App.1993).
Here, we find no error, plain or otherwise, in the trial court's failure to sua sponte declare a mistrial because of Tewell's testimony about why he began to feel uncomfortable as Defendant and Shank mentioned the safe. To invoke the rule of exclusion contended for by Defendant, there must be evidence that Defendant has committed, or has been accused of, charged with, convicted of, or has been definitely associated with another crime. State v. Lorenz, 620 S.W.2d 407, 410[4] (Mo.App.1981). Tewell's testimony does not meet that criteria. His response does not clearly show that Defendant had earlier committed a crime, had been accused or charged with criminal offenses, or had been definitely associated with violating any criminal law. There is no indication of the circumstances that existed "two or three years ago" regarding Tewell, Defendant, and Mike Gosling. At best, the remark was vague and indefinite; certainly, it does not refer to a specific crime. For this reason alone, Defendant's point lacks merit. See State v. Rowe, 838 S.W.2d 103, 112 (Mo.App. 1992); State v. Rhodes, 829 S.W.2d 41, 44 (Mo.App.1992).
Additionally, we note that if Defendant's past criminal activity or misconduct was reasonably inferable from Tewell's answera premise that we rejectit was not an answer responsive to the prosecutor's question. Moreover, to the extent that Tewell's answer is viewed as a comment on Defendant's past criminal conduct, it was voluntary; nothing in the record shows the prosecutor attempted to elicit inadmissible testimony. Unresponsive voluntary testimony indicating that a defendant was involved in offenses other than the one for which he is on trial does not mandate a mistrial. State v. Miller, 680 S.W.2d 253, 255[5] (Mo.App. 1984).
Moreover, we find nothing in the record to indicate Tewell's answer was the result of a conscious effort by the state or the witness to interject a prejudicial inference. See State v. Crawford, 619 S.W.2d 735, 740[7] (Mo.1981); Miller, 680 S.W.2d at 255. Indeed, it was the prosecutor who interrupted Tewell's answer in an obvious effortsuccessful in our *202 viewto avoid the problem that Defendant now attempts to raise. The record demonstrates the isolated nature of the objectionable statement and indicates that the state did not connive to bring the testimony before the jury. See State v. Sidebottom, 753 S.W.2d 915, 920 (Mo. banc 1988).
Finally, we observe that the evidence of Defendant's guilt was overwhelming. Defendant here has failed to show that the remarks to which he now objects had a decisive effect on his conviction in light of the evidence presented. See State v. Parker, 856 S.W.2d 331, 333[4] (Mo. banc 1993).
For the reasons discussed, Defendant's point is without merit and is denied.
We affirm the judgment of the trial court.
FLANIGAN and MONTGOMERY, JJ., concur.
NOTES
[1] In pertinent part, Rule 30.20 reads: "[P]lain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435283/ | 897 S.W.2d 814 (1994)
The CADLE COMPANY, Appellant,
v.
ESTATE OF Forrest WEAVER, Appellee.
No. 05-92-01737-CV.
Court of Appeals of Texas, Dallas.
June 30, 1994.
Certiorari Denied May 22, 1995.
*815 Michael L. Jones, Henry Meier Jones & Travis, L.L.P., Dallas, P. Anne Brewster, Randall K. Lindley, Caolo & Bell, L.L.P., Dallas, for appellant.
Robert W. Fischer, Fischer Gitlin & Sanger, Dallas, for appellee.
Before BAKER, CHAPMAN and BARBER, JJ.
Certiorari Denied May 22, 1995. See 115 S. Ct. 2002.
OPINION ON REMAND
BARBER, Justice.
The Cadle Company seeks to recover on two promissory notes. The trial court held that appellant's claims were barred by the four-year statute of limitations.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Weaver executed two promissory notes payable to the First National Bank of Irving. The first note was in the principal sum of $52,156.64. The second note was in the principal sum of $17,841.55. Weaver defaulted on his obligation to make payment under both notes.
In April 1986, the First National Bank of Irving was placed in receivership. On November *816 12, 1986, the Federal Deposit Insurance Corporation (FDIC), as receiver for the First National Bank of Irving, made demand on Weaver for full payment of both notes. Weaver did not make payment under either note. The FDIC then sold the promissory notes to appellant (Cadle). Cadle filed suit against Weaver on January 8, 1991.
Weaver died on January 11, 1991. Evelyn Weaver, executrix of the estate of Forrest Weaver, filed a Suggestion of Death in this cause, substituting the estate of Forrest Weaver (Weaver) as defendant.
The parties filed cross-motions for summary judgment. The trial court granted summary judgment in favor of Weaver, finding that Cadle's claims were barred by the four-year statute of limitations.
Cadle appealed, asserting by one point of error that the trial court erred in holding that Cadle's action was barred by the four-year Texas statute of limitations, because appellant as assignee of the FDIC is entitled to application of the six-year federal statute of limitations, codified as 12 U.S.C. § 1821(d)(14)(A), which extended limitation period preserved Cadle's cause of action.
Weaver argued on appeal that Cadle as assignee of the FDIC was not entitled to the statutory six-year statute of limitations and because paragraph 2.12 of the Loan Sale Agreement (the document by which Cadle purchased the Weaver notes from the FDIC) specifically provided that Cadle would not in any event raise or pursue any special legal argument or position available to the FDIC as a result of its activities as liquidator or receiver of failed banks whether such argument or position is based on statute such as 12 U.S.C. Section 1823(a), or case law, such as D'Oench Duhme & Co. v. FDIC, 315 U.S. 447, 62 S. Ct. 676, 86 L. Ed. 956 (1942) and its related line of cases.
By cross-point Weaver argued that Cadle's cause of action should have been abated by the trial court because Cadle was transacting business in the State of Texas without a certificate of authority.
On original submission, relying on a prior decision of this court, we affirmed the trial court's judgment. We held that the Financial Institutions Reform, Recovery and Enforcement Act, 12 U.S.C.A. § 1821(d)(14) (West 1989) (FIRREA) did not extend the limitations period to assignees of the FDIC, such as Cadle. We did not reach appellee's other contentions.
The Texas Supreme Court reversed the case on which we based our earlier opinion and judgment in this case. See Federal Debt Management, Inc. v. Weatherly, 883 S.W.2d 171 (Tex.1994) (reversing the case upon which we relied); The Cadle Company v. Estate of Forrest Weaver, 883 S.W.2d 179 (Tex.1994) (reversing our earlier opinion in this case); see also Jackson v. Thweatt, 883 S.W.2d 171 (Tex.1994). The supreme court held that generally the assignee of a promissory note from the FDIC is entitled to the benefit of the limitations period accorded the FDIC under FIRREA.
The supreme court remanded the case to us to consider Weaver's other arguments, to wit: that Cadle, under its contract with FDIC, was not entitled to assert the six year limitations period and that the trial court erred by not granting Weaver's plea in abatement challenging Cadle's corporate standing to bring suit in Texas. Having considered the remaining issues, we affirm the trial court's judgment.
APPELLEE'S CROSS-POINT
Weaver, by cross-point, asserted that the district court erred in not granting its plea in abatement. The plea in abatement plead that Cadle was not authorized to do business in Texas and therefore prayed the court to dismiss Cadle's lawsuit.
Rule 52(a) of the Texas Rules of Appellate Procedure provides in relevant part that in "order to preserve a complaint for appellate review ... It is necessary for the complaining party to obtain a ruling upon the party's request, objection or motion." Tex.R.App.P. 52(a). This rule has been applied to pleas in abatement. See Forest Cove Properties *817 Owners Assoc. Inc. v. Lightbody, 731 S.W.2d 170, 171 (Tex.App.Houston [1st Dist.] 1987, no writ).
While the record before us contains appellee's plea in abatement, there is nothing in the record before us indicating that the trial court ever ruled on the motion. Thus, nothing is presented for review regarding the plea in abatement. We overrule appellee's cross-point of error.
THE LIMITED ASSIGNMENT
Cadle bases its argument for application of the six-year statute of limitations on 12 U.S.C. § 1821(d)(14) that provides as follows:
Notwithstanding any provision of any contract, the applicable statute of limitations with regard to any action brought by the corporation as conservator or receiver shall be
(i) in the case of any contract claim, the longer of
(I) the six-year period beginning on the date the claim accrues; or
(II) the period applicable under state law....
Absent application of the federal statute Cadle's claims are barred by the Texas four-year statute of limitations as set forth in Texas Civil Practice and Remedies Code § 16.004(a)(3).
Weaver asserted in its summary judgment pleadings and brief that the FDIC did not transfer FDIC rights and defenses to Cadle. Paragraph 2.12 of the FDIC's assignment to the Cadle contained the following limitation:
FDIC Defenses. Buyer acknowledges that it does not have the right to, and further warrants, represents and agrees that it will not in any event raise or pursue any special legal argument or position available to the FDIC as a result of its activities as liquidator or receiver of failed banks, whether such argument or position is based on statute such as 12 U.S.C. Section 1823(e), or case law, such as D'Oench Duhme and Co. v. FDIC, 31 [315] U.S. 447, 62 S. Ct. 676, 86 L. Ed. 956 (1942) and its related line of cases. Buyer acknowledges that there is no adequate remedy at law for violation of this provision and consents to the entry of an order by a court of competent jurisdiction enjoining any violation or threatened violation of this provision.
Weaver contends that by virtue of this language, the FDIC expressly limited the rights and benefits Cadle purchased.
Cadle argues that the trial court's judgment cannot be affirmed on the basis of the limited assignment because the trial court's summary judgment failed to state that Weaver's limited assignment defense was a ground for summary judgment. Generally, where the summary judgment order specifies the grounds upon which it is granted, appellate courts must limit their review to those grounds. See Delaney v. University of Houston, 835 S.W.2d 56, 58 (Tex.1992).
The trial court's summary judgment order held:
1. The Cadle Company's claim against the Estate of Forrest Weaver is barred by the Texas Statute of Limitations as codified as Texas Civil Practices and Remedies Code § 16.001 et. seq.
2. The Cadle Company is not entitled to application of the six (6) year Federal Statute of Limitations codified as 12 U.S.C. § 1821(d)(14)(A).
One of the grounds asserted for summary judgment by Weaver was that the federal statute of limitations did not apply because the FDIC and Cadle agreed, by virtue of the limited assignment, that the statutory benefits accruing to the FDIC were withheld from Cadle. We hold the trial court's summary judgment order, as set forth above, sufficiently encompassed such defense.
Cadle also argues that Weaver was neither a party to the Loan Sale Agreement between Cadle and the FDIC, nor an intended third-party beneficiary under the agreement. Cadle contends that since Weaver is a stranger to the Loan Sale Agreement, it has no standing to benefit from the terms of the agreement.
Weaver replies that it never claimed to be a third-party beneficiary. Weaver contends that by virtue of paragraph 2.12 of the Loan Sale Agreement, Cadle gave up the right to *818 assert the extended statute of limitation conferred by the statute. We agree with Weaver.
The critical issue is the extent and nature of the rights Cadle purchased from the FDIC. Cadle cannot assert rights greater than it possesses.
Generally, an assignment carries with it all rights, remedies, and benefits that are incidental to the thing assigned. 6A C.J.S. Assignments § 76 (1975); see also Jackson v. Thweatt, 883 S.W.2d 171 (Tex. 1994). However, "[t]he operation and effect of an assignment may be limited by exceptions, reservations, conditions, or restrictions contained therein." Id. § 78; see also TEX. BUS. & COM.CODE ANN. § 3.202(c) and (d) (Tex. UCC) (Vernon 1968); TEX.BUS. & COM. CODE ANN. § 3.302(d) (Tex. UCC) (Vernon 1968) ("A purchaser of a limited interest can be a holder in due course only to the extent of the interest purchased."). However, for whatever reason, the FDIC did not sell and Cadle did not purchase all of the FDIC's rights. Specifically, Cadle did not purchase the right to the six year statute of limitations under 12 U.S.C. § 1821(d)(14)(A). Cadle points out in its brief that the FDIC has changed its practice of such a limited assignment. We, however, must look at the specific transaction.
In the assignment under which it sues, Cadle "warrants ... that it will not in any event raise or pursue any special legal argument or position available to the FDIC as a result of its activities as liquidator or receiver of failed banks...." We hold that by execution of the Loan Sale Agreement the FDIC did not convey and Cadle did not purchase the rights under the federal statute and the case law it now seeks to assert. We overrule Cadle's point of error.
We affirm the trial court's judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435284/ | 246 F. Supp. 2d 343 (2003)
Neville EVANS, Plaintiff,
v.
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, et al., Defendants.
No. 00 Civ. 5753(LAK).
United States District Court, S.D. New York.
February 25, 2003.
*344 Stephen T. Mitchell, for Plaintiff.
Keith E. Harris, Megan Lee, for Defendants The Port Authority of New York and New Jersey, Ernesto Butcher and Adrienne Holmes.
MEMORANDUM OPINION
KAPLAN, District Judge.
The plaintiff in this employment discrimination case, Neville Evans, is an engineer at the Port Authority of New York and New Jersey (the "Authority") who believes that he repeatedly has been passed over for promotion because he is African-American. The complaint asserted also that plaintiff was subjected to a hostile work environment and that defendants retaliated against him for complaining about alleged racial discrimination at the Authority. The hostile work environment claim, some of the failure-to-promote claims, and claims against a number of individual defendants were dismissed on summary judgment.[1] The case was tried to a jury, which returned a verdict in favor of the remaining defendants on all points.
On February 19, 2003, plaintiff submitted a motion for a new trial to the Clerk. It was not accompanied by proof of service or by a memorandum of law as required.[2] The motion therefore is denied. In the alternative, however, the Court denies the motion on the merits. Only three points warrant discussion[3]plaintiffs contentions that (1) the Court's imposition and enforcement of time limits on the presentations *345 of both sides was inappropriate and prejudicial,[4] (2) the Court questioned the veracity of plaintiffs counsel while accepting without questions representations made by opposing counsel,[5] and (3) the verdict was against the weight of the evidence.[6] Unfortunately, the nature of plaintiffs motion requires comments concerning his counsel that the Court would have preferred to leave unmade.
The Time Limitation
Prior to trial, the Court imposed time limits on the parties' presentations. Despite expansion of those limits during the trial, the plaintiff ran out of time prior to the completion of defendants' case. While the Court gave its reasons when it enforced the time limit against the plaintiff,[7] further elaboration is appropriate in light of the motion now before the Court.
A. The Background of the Time LimitationProblems With Plaintiff's Counsel Prior to Trial
As the record in this case amply reveals, plaintiffs counsel, Stephen T. Mitchell, Esq., failed from the outset to cooperate in discovery and pretrial proceedings.[8]
The most egregious example was his failure to respond to the Authority's October 2000 interrogatories, which sought the identity of all persons with knowledge or information relevant to the subject matter of this action and the aspects of the matter concerning which each was knowledgeable. This episode is amply detailed in Evans v. Port Authority, 201 F.R.D. 96 (S.D.N.Y. 2001) ("Evans I"), as clarified by Order, Jan. 21, 2003, and will not be repeated here. But it was not the only instance of what can be described only as Mr. Mitchell's recalcitrance during pretrial proceedings.[9] The Court notes here only one additional example: Mr. Mitchell's behavior concerning the joint pretrial order.
The joint pretrial order initially was due in June 2001. On or about June 15, 2001, Mr. Mitchell submitted a document entitled "Plaintiffs Proposals for a Joint Pretrial Order" to which he signed the name of the Authority's attorney, followed by his own initials, thus suggesting that the document was submitted on behalf of plaintiff and the Authority defendants.[10] It later developed that counsel for the Authority defendants had authorized Mr. Mitchell to submit a joint pretrial order on her behalf provided certain changes were made in plaintiffs draft. The changes were not made. Mr. Mitchell signed her name to the document and submitted it anyway. He never told his adversary that he had done so.[11] But that was not the end of the story.
*346 The Court did not approve the pretrial order submitted by Mr. Mitchell, as it did not bear signatures on behalf of all of the defendants. On April 5, 2002, the Court granted in part and denied in part the Authority defendants' motion for summary judgment dismissing the complaint.[12] Bearing in mind both that the decision had narrowed the case and the absence of an approved joint pretrial order, the Court, on August 5, 2002, directed the submission of a joint pretrial order by September 3, 2002. But Mr. Mitchell, who as plaintiffs counsel was obliged to prepare and submit a draft to the defendants' counsel,[13] simply ignored the order.[14] In consequence, no joint pretrial order ever was prepared.[15]
B. The Adoption of the Initial Time Limits
As the trial approached, the Court focused on the potential difficulties of managing the trial in the absence of a joint pretrial order, particularly given the problems concerning the identification of possible witnesses that are detailed in Evans I and the deficiencies in Mr. Mitchell's papers on the summary judgment motion.[16] Accordingly, on January 14, 2003, the Court issued an order to show cause why the presentations of each side should not be limited to 13.5 hours.[17] This reflected the Court's best estimate of the time required competently to present this case based, among other things, on the nature of the remaining issues, the June 2001 proposed pretrial order, and the number of witnesses each side likely would call.
On January 17, 2003, Mr. Mitchell responded with a letter vaguely claiming that he would need more time. He stated that he intended to call 23 witnesses, including several who had been precluded by the decision in Evans I. At oral argument, despite its earlier order to the contrary, the Court decided to allow plaintiff to call a number of the previously precluded witnesses.[18] While it adopted the 13.5 hour time limitation, it made clear that it remained flexible and would consider, as the trial progressed, any reasonable application to expand this limitation.[19] It cautioned, however, that it would take into account, in passing on any such requests, whether the time allotted had been used efficiently.[20]
C. The Commencement of the Trial
By the time the case went to trial, all that remained were three alleged failureto-promote claims and a narrow retaliation claim although, to be sure, plaintiff was entitled to, and the Court granted, latitude to adduce background evidence and to attempt to demonstrate an insensitivity or *347 unresponsiveness by the Authority toward racial prejudice in the workplace.[21]
Plaintiff began his case by calling Joseph Durando, who was involved in the selection process for one of the positions to which plaintiff aspired. Mr. Mitchell spent part of his direct examination questioning Mr. Durando about the qualifications the Authority had established for the position. At the end of the day, out of the presence of the jury, the Court commented to Mr. Mitchell as follows:
"[I]t may be helpful simply to say to Mr. Mitchell that you did not make much use of your time today. You could have offered in evidence the job bulletin. You would have had in front of the jury right away exactly what the qualifications were, and you would have saved a large amount of time that was spent essentially arguing with the witness about whether he remembered what the job posting said and various other things that the record will show, all of which were established conclusively in the space of less than 60 seconds once the job bulletin came in.
I am not inviting an answer. I am simply telling you how you could have done this much more effectively, and I am doing it because I want you to focus on how to present your case."[22]
On the following day, plaintiff elected to play hours of excerpts from a videotaped deposition of Joseph Bardzilowski, a retired Authority executive who had been involved in the selection of successful candidates for one or more of the positions at issue in the case. As the deposition and trial transcripts reveal,[23] plaintiff chose unnecessarily to play a good deal of argumentative colloquy between counsel.[24]
As the trial continued, Mr. Mitchell asked patently objectionable questions. Much of his questioning was argumentative or assumed facte unsupported by or contrary to the record. Thus, he often consumed a good deal of time reformulating questions in response to well taken objections. Nevertheless, the Court kept both sides apprized of the time remaining to each on at least a daily basis, and it reiterated its willingness to reconsider the time limit on the basis of a demonstrated showing of need.
D. Enlargement of the Time Limit
On January 26, 2003, plaintiff made such an application,[25] claiming that he still had *348 nine witnesses to present. The Court held a conference to deal with this request. After going over the list of remaining witnesses in detail and eliciting stipulations that obviated any need for two of the nine, the Court expanded the time allotments from 13.5 to 17 hours.[26] Mr. Mitchell responded that "I think that we will make that deadline,"[27] and he raised no objection.
E. Plaintiff Runs Out of Time
Despite essentially having reached agreement on the time limitations, Mr. Mitchell's performance after the expansion of the time allotment did not improve. This is well illustrated by his use of fully one half of a trial day, January 29, 2003, to present the testimony of the head of the Authority's medical department and two of plaintiffs doctors.
1. The Medical Testimony
A few words of background. As Evans II relates in more detail, plaintiff had disputes with supervisors and others in the early part of 2000, which culminated in an informal reprimand on May 23.[28] On the following day, he went to the Authority's medical department, was found to have high blood pressure, and was sent home in a car (provided by the Authority) with instructions to see his private physician. At trial, the parties stipulated that plaintiff later was put on absent-without-leave status after he failed to appear for an appointment at the medical department on June 9, 2000; that his pay therefore was stopped for a period of roughly two weeks; that it later was determined that a nurse in the medical department had told him that he did not have to come in on June 9; and that his back pay then was sent to him by Federal Express.[29] Despite this stipulation, plaintiff, as was his right, proceeded to claim that he had been put on absentwithout-leave status and that his pay had been withheld in retaliation for his having complained about alleged racial discrimination to his supervisors. What was not his right was to waste an enormous amount of time with matters having no real relationship to the question whether, notwithstanding the stipulated facts, retaliatory animus motivated this contretemps.
Mr. Mitchell began by calling Dr. Martin Duke, head of the Authority's medical department, whose only connection to these events was that he had received a call on June 9 from plaintiffs personal physician, Dr. Altema. Dr. Duke's first hand knowledge was limited to the call, in which Dr. Altema stated that the plaintiff would not keep his appointment for that day, and to the fact that the medical department then had referred plaintiff for administrative dispositioni.e., it told his supervisor that he had failed to report as directed, leaving the determination of whether to take action with the supervisor.[30] Nevertheless, Mr. Mitchell consuraed *349 the better part of an hour to elicit these factswhich were not disputed to begin with and which he then proceeded to elicit again from Dr. Altemaand to have Dr. Duke read entries that had been made by others in plaintiffs medical records.
After Dr. Duke testified, Mr. Mitchell called Dr. Altema. Mr. Mitchell elicited from Dr. Altema that plaintiff had high blood pressure,[31] that plaintiff had complained of alleged harassment at work,[32] and that Dr. Altema had recommended that plaintiff not return to what Dr. Altema described as "the hostile environment at work."[33] In addition, Dr. Altema testified that he had told an Authority doctor that plaintiff would not return until Dr. Altema thought plaintiff could do so without detriment to his health.[34]
This testimony was of little or no utility. There was no dispute concerning plaintiffs history of hypertension. The fact that, by June 2000, he had complained of alleged racial discrimination at work likewise was undisputed. Dr. Altema's statement that plaintiff would not show up on June 9 was recorded in the Authority's medical records, the admissibility of which was unchallenged. Thus, the only conceivable point of Dr. Altema's testimony was to show that plaintiff did not keep his appointment on June 9 because his doctor had advised against it, and it was cumulative on this issue.[35] In any case, Dr. Altema's testimony had nothing to do with the real issue: whether the Authority (a) put plaintiff on absent-without-leave status to enforce an alleged policy of requiring all of its employees, absent extraordinary circumstances not even arguably present here, to appear for evaluation by its physicians whenever they are on sick leave, regardless of the views of their personal physicians, or (b) instead used the failure to show up on June 9 as a pretext to punish plaintiff for his complaints.
But the capstone of the medical evidence was the testimony of Dr. Kildare Clarke, an emergency room physician and alleged psychiatrist called by plaintiff. Dr. Clarke, it turned out, failed the board certification examinations in psychiatry;[36] has seen only a small number of psychiatric patients,[37] some of whom are clients of Mr. Mitchell with legal claims;[38] and had had his medical license revoked for issuing unlawful prescriptions for marijuana for the purpose of deceiving a court.[39] Despite this pedigree, and a caution from the Court (out of the presence of the jury) that offering testimony from such an alleged expert could seriously undermine the credibility of his case,[40] Mr. Mitchell insisted on proceeding with this witness[41] to elicit the opinion that plaintiff was suffering from post-traumatic stress disorder as a result of an office prank.[42]
The wastefulness of the time devoted to Dr. Clarke's testimony is patent. As the hostile work environment claim had been *350 dismissed on the Authority's motion for summary judgment, the question whether the prank was a proximate cause of any post-traumatic stress disorder was immaterial, as there was no remaining claim for relief in respect of the incident. Even if there had been such a claim for relief, the calling of a witness with Dr. Clarke's background was, to say the least, ill advised and certainly not a reasonable use of limited court resources.
2. The Conclusion of the Trial
Plaintiff rested his case-in-chief on January 30, 2003 at page 914 of the trial transcript. The Authority defendants moved for judgment as a matter of law, a motion which, for the most part, was denied. Nevertheless, it is noteworthy that plaintiff consented to the dismissal of the claim against defendant Holmes, the Authority executive who placed plaintiff on absentwithout-leave status as a result of the medical department incident and thus the focus of that claim.[43]
Toward the end of the day on January 30, 2003, during the defendants' case, the Court advised plaintiff that he had less than 30 minutes left of his enlarged allotment of 17 hours[44] and said that it would cut plaintiff off when that time was gone. Nevertheless, the Court expanded the 17 hour limit by 15 minutes in response to Mr. Mitchell's claim that he had miscalculated the time remaining and granted plaintiff an additional 20 minutes for summation even if, as proved to be the case, plaintiff used up his entire time allotment.[45]
The Authority then called eleven additional witnesses on its case, although their testimony took only parts of two days and less than 200 pages of transcript. Some of those witnesses already had testified on plaintiffs case-in-chief. Plaintiff finally ran out of time (save the additional 20 minutes granted for summation) after the conclusion of his cross-examination of the Authority's penultimate witness, Ms. Holmes. The only defense witness whom plaintiff could not cross-examine was Ernesto Butchera witness whom plaintiff had examined extensively on his direct case and whose testimony during the defense case was partly repetitious and not particularly significant in the overall context of the case.
When plaintiffs time expired, Mr. Mitchell, out of the presence of the jury, asked for an instruction, which the Court gave.[46] Before the lawyers delivered their closing arguments, the Court again mentioned the time limit so that the jurors would not draw any inference from the respective lengths of the parties' closing statements.[47] Finally, the Court charged the jury that it was not to "consider the fact that time limits were established for the presentations of the parties and that *351 one side ran out of time. The law permits trial judges for obvious reasons to impose reasonable time limits. The question whether the time limits imposed were appropriate is no part of your concern."[48]
F. The Time Limit Is No Basis for a New Trial
Trial courts have discretion to impose reasonable time limits on the presentation of evidence at trial.[49] This is essential if they are to manage their dockets, as many cases compete for trials and for the attention of judges, and no party has an unlimited call on their time. Moreover, in order to prevail on a claim that a time limit was too short, a party must have come forward with an offer of proof showing how its presentation would be curtailed by it and must demonstrate prejudice.[50] Plaintiff has not done so. Not only did he present his entire case-in-chief, but he made no offer of proof of any respect in which his cross-examination of those of the defendants' witnesses whom he did crossexamine was impaired or of what he might have adduced by cross-examining Mr. Butcher on defendants' case. He never identified any probative, non-cumulative evidence that he was prevented by the time limit from presenting.
In the final analysis, the Court is convinced that plaintiff easily could have presented his case fully and effectively in the 13.5 hours originally allotted. His counsel essentially admitted that the 17 ours ultimately granted was sufficient. He nevertheless consumed more than 17 hours and 35 minutes. In the Court's view, the enforcement of the time limit had no meaningful effect on the presentation of his case.
II The Veracity of Counsel
Plaintiff complains that the Court questioned his counsel's veracity and refused *352 to credit his verbal representations while not treating his opposing counsel in the same fashion.[51] Even if this were true, it would afford no basis for a new trial. There is no evidence that any such thing ever occurred in the presence of the jury or that plaintiff was prejudiced in any way by any such conduct. But the charge warrants a response.
Discovery in this case was a very contentious process, replete with accusations of dishonesty among counsel. These conflicts made the Court very reluctant to accept the uncorroborated assertions of any of the attorneys in this case. And, even before trial, there was at least some fire amidst all the smoke. During the proceedings that culminated in Evans I, for example, Mr. Mitchell falsely represented to the Court that it had excused him from answering the interrogatories then at issue.[52] In consequence, the Court on January 17, 2003 (and possibly earlier) told all counsel that it would not make rulings of substance on the basis of unsworn representations by either side and, if need be, that it would put lawyers on the witness stand.[53]
On the first day of the trial, counsel raised the dispute, discussed above,[54] conicerning the Authority's allegedly belated identification of three witnesses. Contrary to plaintiffs suggestion, the Court did not simply accept the word of the Authority's counsel. It insisted that she take the witness stand, allowed plaintiff to cross-examine, and then afforded Mr. Mitchell the opportunity to testify. Only after doing so, and receiving documentary evidence proving that Mr. Mitchell's assertion was inaccurate, did the Court make any finding.[55] And, although it found against Mr. Mitchell, it concluded that it would "charitably put it [i.e., the inaccuracy] down to failure of recollection...."[56]
Later in the trial, another dispute arose, and again the Court declined to resolve the matter by accepting the word of one lawyer over another. When the Authority sought to use defendants' exhibit WWW during cross-examination of one of plaintiffs witnesses, Mr. Mitchell objected, representing that "I never received this document." [57] After the jury was excused, the Authority's counsel countered that the document was an exhibit to its reply papers in support of its motion for summary judgment, which had been served on Mr. Mitchell.[58] The Court, however, did not then rule.[59] Two days later, when the Authority again sought to use the document *353 merit, Mr. Mitchell renewed his objection. The Court then reviewed the official court file and found that the document was attached to the Authority's summary judgment papers.[60] Although Mr. Mitchell admitted that he had received those papers, he persisted in claiming that the copy of the papers he had received was missing this particular document.[61] The Court then directed him to produce the copy of the papers that was served on him. But Mr. Mitchell at that point said that he "would not be able to produce it because what we had to do was take it apart to give it to the Port Authority. So all of the documents that I have are not intact."[62] The Court thereupon found, out of the presence of the jury, that his excuse was "just patently false" and overruled his objection.[63]
Where, as here, attorneys disagree on basic historical facts material to pretrial and other proceedings, courts nevertheless must resolve their disputes. Almost invariably, those decisions involve findings as to which side's account is accurate. As long as those matters are conducted fairly and no inappropriate information comes to the attention of the jury, there is no basis for objection. Those conditions were satisfied here.
III The Weight of the Evidence
In determining whether to order a new trial on the ground that a verdict is against the weight of the evidence:
"The trial judge, exercising a mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply to the facts; and abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. The judge's duty is essentially to see that there is no miscarriage of justice. If convinced that there has been then it is his duty to set the verdict aside; otherwise not."[64]
In this case, the verdict was not against the weight of the evidence. The evidence that those chosen for the various positions to which plaintiff aspired were better or, at least, fully as qualified as the plaintiff was ample, and the jury was entitled to find it persuasive. There was abundant evidence that plaintiff was a problem employee in a number of respects including a tendency to demean subordinates[65] and to be prickly to and obstinate with supervisors.[66] The jury was not persuaded that race played a role in any of the promotion decisions, and the Courtbearing in mind its obligation in considering this aspect of the motion to "weigh the evidence" itselfis in full agreement.[67] And the jury was well within its province in rejecting the retaliation claim, which turned almost entirely on the *354 medical department incident and which, in the Court's view, was utterly baseless. Indeed, that entire misunderstanding would have been avoided if Mr. Mitchell, who sent the Authority a belligerent letter in June 2000,[68] simply had written that the nurse in the medical department had told Mr. Evans that he was excused from appearing for the appointmenta fact he did not mention, thus delaying discovery of the error.
Conclusion
For the foregoing reasons, plaintiffs motion is denied in all respects.
SO ORDERED.
Appendix
Ground Comment and Record References
Refusal to permit witnesses to testify It appears that plaintiff claims that the witnesses
to alleged custom and practice of in question, who are not identified in the Rule 59
racial discrimination by the Authority motion, were precluded by Evans I, so no further
in order to satisfy Monell explanation is warranted. The Court notes,
v. Dept. of Social Servs., 436 U.S. however, that plaintiffs position at trial was that
658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 there was no need to satisfy Monell under either
(1978). Mitchell Aff. ¶¶14-19. Title VII or 42 U.S.C. § 1981. Tr. 1254-58. In
so far as Section 1981 is concerned, plaintiff was
wrong. Id. 1265; see Anderson v. Convoy, 156
F.3d 167, 176 n.17 (2d Cir.1998); Mack v. Port
Authority, 225 F. Supp. 2d 376, 383 (S.D.N.Y.
2002). In any case, the point was rendered
academic by the jury's finding that there was no
discrimination or retaliation.
Requirement in June 13, 2001 and The requirement to identify trial witnesses in the
unspecified January 2003 orders June 13, 2001 order was entirely appropriate.
improperly required plaintiff to See FED. R. CIV. P. 16(c)(7); see, e.g., Brock v.
reveal identities of trial witnesses R.J. Auto Parts and Serv., Inc., 864 F.2d 677,
prior to filing of pretrial order. 679 (10th Cir.1988) (stating that a district court
Mitchell Aff. ¶¶ 19-20. is not "powerless to compel the production
of a witness list during discovery, for such an
approach may be necessary to the efficient disposition
of a complex case or for other reasons").
Any January 2003 order, moreover, was entered
long after the conclusion of discovery and the
date on which the joint pretrial order was due,
which was September 3, 2002. Order, Aug. 5,
2002.
Alleged errors in the charge. The alleged errors in a number of instances rest on
Mitchell Aff. ¶¶ 24-29, 47. the mischaracterization of the charge. To the
extent the matters complained of were raised in
the charge conference or prior to the submission
of the case to the jury, the Court dealt with them
on the record. See Tr. 1243-63,1379-80. To
the extent they were not properly raised, they
have been waived. FED. R. CIV. P. 51.
Alleged discovery violation by the The Court is unaware of what plaintiff is referring
Authority. Mitchell Aff. ¶¶ 34-35. to. In any case, plaintiff never moved to compel
production.
*355
Evidentiary rulings. Mitchell Aff. The bases for the rulings are in the trial transcript.
¶¶ 36-40-45. E.g., Tr., 184-205, 753-60, 1023-24.
NOTES
[1] Evans v. Port Authority, 192 F. Supp. 2d 247 (S.D.N.Y.2002) ("Evans II").
[2] FED. R. CIV. P. 5(a) ("every written motion... shall be served upon each of the parties"), 5(d) (papers shall be filed "together with a certificate of service"); S.D.N.Y. Civ. R. 7.1 ("[e]xcept as otherwise permitted by the court, all motions ... shall be supported by a memorandum of law").
[3] The remaining points are dealt with in summary fashion in the appendix.
[4] Mitchell Aff. ¶¶ 21-23.
[5] Id. ¶ 41-42.
[6] Id. ¶¶ 30-33.
[7] Tr. 981-90. (Unless otherwise indicated, all references to "Tr." are to the trial transcript.)
[8] This Court is not alone in encountering such problems with this attorney. See Can v. Queens-Long Island Med. Group, P.C., Nos. 99 Civ. 3706(NRB), 02 Civ. 1676(NRB), 2003 WL 169793 (S.D.N.Y. Jan. 24, 2003) (Francis, M.J.) (sanctioning Mr. Mitchell for bad faith discovery misconduct). See also Mitchell v. Fishbein, 216 F. Supp. 2d 283 (S.D.N.Y.2002) (noting the Appellate Division's refusal to recertify Mr. Mitchell to the state court 18-B panel).
[9] See, e.g., Order, Aug. 5, 2002 (citing some other instances).
[10] It was not signed on behalf of counsel for defendant Lee Home, who subsequently was dismissed from the action.
[11] Tr. 4; Letter from Megan Lee, Esq., to Court (June 27, 2001); see also Letter from Douglas Langholz, Esq., to Court (June 28, 2001).
[12] Evans II, 192 F. Supp. 2d 247.
[13] See, e.g., Order, June 4, 2001 (endorsing Letter from Stephen T. Mitchell, Esq., to Court (June 1, 2002)).
[14] Defendants' counsel were not wholly without fault either.
[15] Trial originally was set for September 10, 2002. Order, Aug. 7, 2002. It was postponed, ultimately until January 21, 2003, to accommodate Mr. Mitchell. See Letter from Stephen T. Mitchell, Esq., to Court (Aug. 17, 2002).
[16] See, e.g., Evans II, 192 F.Supp.2d at 251 n. 5.
[17] Order, Jan. 14, 2003.
[18] Tr., Jan. 17, 2003, at 2-44, especially 25-34 and 40-44. (It should be noted that Drs. Altema and Clarke, who were referred to in this transcript but not ruled upon there, ultimately were allowed to testify despite the Court's ruling in Evans I.)
[19] Id. 47-48.
[20] Id.
[21] The trial began with a claim by Mr. Mitchell that the Authority's counsel suddenly had sprung three proposed witnesses on him whom they never had identified before. Tr. 3. Counsel for the Authority stated that she had sent Mr. Mitchell a letter in June 2001 in which she had requested that these three witnesses be added to the joint pretrial order that Mr. Mitchell then supposedly was preparing. Id. 4. Mr. Mitchell flatly denied having been so advised. Id. 5. The Court then held an evidentiary hearing at which the Authority produced documentary evidence demonstrating beyond a doubt that Mr. Mitchell had been advised of the three witnesses in June 2001 and that his denial to the Court had been false. Tr. 5-14; DX 1001, 1002.
[22] Tr. 151-52.
[23] See, e.g, id. 162-63, 168 (instructions by the Court that the jury should ignore the lawyers' colloquy)
[24] Mr. Mitchell eventually claimed that the Court had insisted that the deposition be videotaped and that the tape be played as opposed to the transcript read. This assertion simply is false. See Endorsed Order, Jan. 2, 2003 (directing the parties to "[p]reserve the testimony by deposition" without mentioning videotape); Tr. 2 (Mr. Mitchell advises Court, prior to jury selection, of his wish to play the videotape); id. 59 (Mr. Mitchell, in his opening statement, informs the jury of his plan to play the videotape).
[25] Letter from Stephen T. Mitchell, Esq., to Court (Jan. 26, 2003).
[26] The Court did so despite its stated views that (a) the original allotment of 13.5 hours had been adequate, (b) Mr. Mitchell's presentation of the case, to that point, had been inefficient and repetitious, and (c) Mr. Mitchell's focus on the medical department incident, infra at Subsection I.E.I, was not a good use of time, although the Court would not rule it out. Tr., Jan. 27, 2003, at 21-23.
[27] Id. 23.
[28] Evans II, 192 F.Supp.2d at 258-60.
[29] Tr. 492-93; see also Tr., Jan. 27, 2003, at 7-9.
[30] Tr. 645-48, 659-60.
There was no evidence that the medical department knew anything of Mr. Evans' ongoing disputes with his supervisors, his complaints of alleged racial discrimination, or anything else other than his medical condition and history.
[31] Id. 681-82, 686, 697-99.
[32] Id. 685.
[33] Id. 686.
[34] Id. 686-88, 691-92.
[35] See, e.g., id. 660-62.
[36] Id. 705.
[37] He earned his living as an emergency room physician. Id. 709-11, 741.
[38] Id. 739-42.
[39] Id. 705-07, 712-13, 715, 717, 740-47; DX EEEE.
[40] Tr. 715-16.
[41] Id. 716-17.
[42] Id. 720, 749-51.
[43] Id. 936.
[44] Id. 966-67.
[45] Id. 981-93.
[46] Id. 1193-94. The Court instructed the jury: "The court established a time limit, allotting equal time to both sides in this case for the presentation of the case. That limit was extended once quite substantially. The plaintiff now has used all of his time except for 20 minutes that he has been allotted in addition to all the other time for a closing argument. So Mr. Mitchell will not be able to ask any more questions in this trial." Id. While plaintiff did not request any specific language, he did not object to this instruction.
[47] Id. 1300. The Court stated: "Members of the jury you will recall that both sides were allotted equal time in this trial for all their presentations. The plaintiff used up all their [sic ] time. I gave them [sic ] an additional 20 minutes to sum up. The Port Authority is nowhere near its time. Therefore, they may take longer." Id. Plaintiff did not object to this instruction.
[48] Id. 1367-68. There was no objection to this instruction.
[49] E.g., Life Plus Int'l v. Brown. 317 F.3d 799, 807 (8th Cir.2003) ("Trial courts are permitted to impose reasonable time limits on the presentation of evidence to prevent undue delay, waste of time, or needless presentation of cumulative evidence."); Sparshott v. Feld Entm't, Inc., 311 F.3d 425, 433 (D.C.Cir. 2002) (("The district court's decisions on how to structure time limits are reviewable only for abuse of discretion.") (citations omitted)); Amarel v. Connell, 102 F.3d 1494, 1513-15 (9th Cir. 1996) ("The case law makes clear that where a district court has set reasonable time limits and has shown flexibility in applying them, that court does not abuse its discretion. Moreover, to overturn a jury verdict based on a party's failure to use its limited time for witness cross-examination would be to invite parties to exhaust their time limits without completing cross-examination, then appeal on due process grounds."); Deus v. Allstate Ins. Co., 15 F.3d 506, 520 (5th Cir.), cert, denied, 513 U.S. 1014, 115 S. Ct. 573, 130 L. Ed. 2d 490 (1994) ("In the management of its docket, the court has an inherent right to place reasonable limitations on the time allotted to any given trial."); Borges v. Our Lady of the Sea Corp., 935 F.2d 436, 442-43 (1st Cir. 1991) ("District courts may impose reasonable time limits on the presentation of evidence."); Flaminio v. Honda Motor Co., 733 F.2d 463, 473 (7th Cir. 1984) ("[I]n this era of crowded district court dockets federal district judges not only may but must exercise strict control over the length of trials, and are therefore entirely within their rights in setting reasonable deadlines in advance and holding the parties to them.... ").
[50] See, e.g., Life Plus Int'l, 317 F.3d at 807 ("To preserve this issue for our review, a party must lodge a timely objection to the time limits and must make a proffer of evidence that was excluded for lack of sufficient time."); Sparshott, 311 F.3d at 433 ("[A] party arguing that time limits were unfair must also show that he was prejudiced thereby."); Bank of China v. NBM L.L.C., 01 Civ. 0815(DC), 2002 WL 31027551, 2002 U.S. Dist. LEXIS 16979, at *3 (S.D.N.Y. Sept. 11, 2002) ("[A]t no point did defendants identify any admissible, relevant, evidence that they were unable to offer because of the time limits set by the Court.").
[51] Mitchell Aff. ¶¶ 41-42.
[52] Evans I, 201 F.R.D. at 98 & n. 14.
In addition, shortly before trial, Mr. Bardzilowski, a retired Authority executive whom both sides wished to call, indicated that he would be unavailable for trial because he was scheduled for surgery. In an unsuccessful effort to demonstrate that the surgery could be postponed, Mr. Mitchellas he later admitted in open courttelephoned the surgeon, falsely represented that he was a patient, and sought to elicit information about the doctor's availability in an effort to gather ammunition to seek an adjournment. Tr., Jan. 17, 2003, at 48. This of course was a breach of the Code of Professional Responsbility. DR 7-102(a)(5) ("lawyer shall not ... [k]nowingly make a false statement of law or fact").
[53] Tr., Jan. 17, 2003, at 51
[54] Supra note 21.
[55] Tr. 3-14.
[56] Id. 14.
[57] Id. 517.
[58] Id. 518-19.
[59] Id. 519-23.
[60] Id. 970-72.
[61] Id. 974.
[62] Id.
[63] Id. 975.
[64] Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir. 1978) (quoting 6A MOORE'S FEDERAL PRACTICE ¶ 59.08[5], at XX-XXX-XX-XXX (1973)).
[65] E.g., Tr. 1101-07, 1131-36.
[66] E.g., id. 1130-31, 1136-42.
[67] Indeed, it is remarkable that so many of the Authority executives whom the plaintiff accused of discriminating against him because he was African-American themselves were African-American. While the Court acknowledges that members of a minority are capable of discriminating against other members, even on the basis of their shared characteristic, there was no persuasive evidence that this occurred here.
[68] See DX Q (Letter from Stephen T. Mitchell, Esq., to Richard D. Williams, Esq. (June 12, 2000)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435289/ | 897 S.W.2d 37 (1995)
Félix E.F. LAROCCA, M.D., Plaintiff-Appellant,
v.
STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Defendant-Respondent.
No. 65897.
Missouri Court of Appeals, Eastern District, Division Four.
February 21, 1995.
Motion for Rehearing and/or Transfer Denied April 12, 1995.
Application to Transfer Denied May 30, 1995.
*39 Merle L. Silverstein, Richard E. Greenberg, Rosenblum, Goldenhersh, Silverstein & Zafft, P.C., Clayton, for appellant.
Peter J. Dunne, Rabbitt, Pitzer & Snodgrass, St. Louis, for respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied April 12, 1995.
SIMON, Judge.
Plaintiff Dr. Félix E.F. Larocca (Doctor) appeals from the judgment of the trial court affirming the decision of the Board of Registration for the Healing Arts (Board) revoking Doctor's license to practice medicine in Missouri. The Board took action pursuant to the conclusion of the Administrative Hearing Commission (AHC), which found "cause to discipline [Doctor]'s license" after a hearing on the matter. On appeal, Doctor contends that the trial court erred in: (1) overruling his motion for summary judgment and affirming the Board's action because of "the excessive and inexcusable delay of more than five years, from the time the Board was informed of the alleged misconduct and began its investigation until it filed a complaint and first informed [Doctor] of the specific charges," which constituted both a violation of Doctor's due process rights and laches; and (2) affirming the decision of the Board and the AHC because it was not supported by competent and substantial evidence. We affirm.
Our review is of the AHC's decision rather than that of the circuit court. Francois v. State Bd. of Registration for the Healing Arts, 880 S.W.2d 601, 602 (Mo.App.E.D. 1994). We treat the decision of the AHC and the disciplinary order of the Board as one decision and as the final decision of the AHC subject to review. Perez v. Missouri State Bd. of Registration for the Healing Arts, 803 S.W.2d 160, 162[1] (Mo.App.1991). We view the evidence and all reasonable inferences therefrom in the light most favorable to the findings and decision. Id. at 162[2].
Doctor was board-certified in both adult and child psychiatry, specializing in the treatment of eating disorders. He lectured on the subject worldwide during the 1970s and 1980s. In St. Louis, Doctor organized groups known as "BAN," for bulimia/anorexia nervosa, and "BASH," for bulimia/anorexia self-help, which met regularly with Doctor and in smaller groups led by patients called "facilitators." During 1983 and 1984, L.A. and G.D. were undergoing treatment with Doctor for eating disorders.
I. L.A.
L.A. had been one of the earliest participants in the BASH program, becoming a facilitator when the program started in 1981. While a patient of Doctor from 1980 to 1984, L.A. developed an attraction to Doctor that began by seeing him as a father figure and later became a romantic and sexual attraction.
*40 On August 23, 1983, after a facilitators' meeting, Doctor drove L.A., then age 18, to his home, purportedly to discuss her possible paid employment with BASH. While there, Doctor gave L.A. a beer and proceeded to hug and kiss her and to touch her breasts. She jumped back, confused. He asked her to allow him to photograph her in the nude. Shortly thereafter, Doctor invited her to sit on his lap, whereupon he put his hand between her legs and told her that he loved her. She insisted that he take her home, but as he was driving, he took her hand and placed it on his penis. Doctor started to drive back to his house, but L.A. repeatedly asked him to take her home, which he eventually did. At her home, her sister's boyfriend, who was married to her sister at the time of the hearing, saw them drive up together.
The next such incident between Doctor and L.A. occurred on December 19, 1983. Because it was snowing, Doctor drove L.A. to her car. Upon reaching her car, Doctor stopped and began to touch her breasts and tell her he loved her. L.A. was confused and frightened, and Doctor suggested they return to his office to discuss her feelings. However, the advances continued at his office, where Doctor again told L.A. he loved her and asked her to take off her clothes. She walked out into the reception area, and Doctor took her back to her car.
Doctor attempted to have sexual intercourse with L.A. twice in February of 1984. On February 21, at his office, Doctor laid on top of L.A. but was unable to penetrate her. On February 28, Doctor asked L.A. to come over to his house to discuss an upcoming trip by BASH members. When she arrived around 10:00 p.m., she waited for the lights in the house to flash off and on, his prearranged signal for her to come up to the house. That evening, they undressed in the living room and attempted to have sexual intercourse, again unsuccessfully. Doctor's wife and daughter were home at the time, but he told L.A. that they had gone to bed.
In March of 1984, L.A. traveled to San Diego, California, along with Doctor's wife and daughter, a friend of the daughter, and Julie LaRose (LaRose), another BASH speaker, for a BASH meeting. L.A. stayed with LaRose in a hotel for the first three days of her visit, March 8, 9, and 10, but when Doctor mentioned that they could stay in California for an extra day or two after the meeting, LaRose was unable to stay. After LaRose returned to St. Louis on March 11, L.A. stayed at Doctor's condominium with Doctor and the others; L.A. was to sleep on a cot in the living room area. That night, once everyone had gone to bed, Doctor came out to the living room where L.A. was sleeping, pulled down her pants, and asked her to "let [him penetrate her] a few inches." He continued for five to ten minutes, but he stopped because L.A. protested that it hurt her. L.A. left California the next day.
The first time Doctor and L.A. actually had sexual intercourse occurred in his bedroom on March 16, 1984, the night he returned from California. L.A. had picked up Doctor at the airport; his family remained in California for a few more days. Doctor asked L.A. to stay at his house again the next night. When she left Doctor's house on the night of the 16th, her car became stuck in the mud on Doctor's lawn. L.A.'s father had to come to pick her up, and her car was towed out of the lawn the next day.
L.A. and Doctor had sexual intercourse several more times during the next five months. On March 17, 1984, the night after her car became stuck in the mud, L.A. was driven by a friend to Doctor's house, where they engaged in sexual intercourse. She spent the night, and left the next morning at Doctor's request by the basement door, crossing a couple of neighbors' lawns to another street, where Doctor picked her up and took her home. They again had sexual intercourse on March 21, 1984, at Doctor's house, while his family was still in California. They had sexual intercourse twice in April of 1984, both times in the basement of Doctor's house. On May 2-4, 1984, L.A. accompanied Doctor to Chicago, where he was attending a medical conference. They stayed in the same room at the Drake Hotel, and they had sexual intercourse there several times. On May 17, 1984, they had sexual intercourse in the basement of Doctor's house. On May 20, 1984, while Doctor's wife and daughter were *41 picking up Doctor's son at college in Iowa, L.A. and Doctor had sexual intercourse at Doctor's house. They also had sex twice in June of 1984 at Doctor's house.
During that month, L.A. became involved in a dating relationship with another man, and she started refusing Doctor's advances. However, on July 4, 1984, Doctor seduced L.A. at his house. Shortly thereafter, when she told Doctor of her decision to stop seeing him, Doctor terminated and denied ever authorizing a film project on eating disorders that L.A. had been working on for several months. She felt devastated and betrayed.
L.A. ended the relationship and stopped working for BASH in August of 1984, when she learned that Doctor had been engaging in sexual relations with G.D., L.A.'s roommate at the time.
II. G.D.
G.D. began seeing Doctor as a patient in January of 1982, when she was 17 years old. Originally, Doctor saw her on an inpatient basis, but when she was discharged from the hospital in March, she began to visit his office once a week for therapy. At his request, G.D. began attending BAN and BASH meetings as part of her treatment. She continued under Doctor's care through 1982 and 1983, during which time she was hospitalized on two additional occasions for a total of about four months.
On September 6, 1983, G.D., two weeks shy of her nineteenth birthday, became upset after an argument with her mother. Her mother had gone to a friend's house, and G.D. tried to talk to her there. Upset that her mother refused to see her, G.D. deliberately backed her car into the friend's garage door. Her mother called G.D.'s father, who called Doctor. Doctor arrived at G.D.'s house, to which she had returned, and suggested that she stay at his house for the night. Doctor called his wife and informed her of the arrangement, and she assented. G.D. packed some things, hugged her father, and left with Doctor in his car.
Doctor took G.D. in the opposite direction of his house. During the ride, he began to touch her breasts and put his hand in her pants, telling her that he was trying to help her feel comfortable with her body. G.D. was shocked, and she could not believe what was happening to her. After about twenty minutes, they reached Doctor's house, and G.D. agreed to talk with Doctor in his study.
Doctor's wife greeted them at the door, and Doctor told G.D. to put her things in an upstairs bedroom. She then went downstairs to the study, and she began to discuss the evening's events with him. He asked her to kiss him, and she did. He took down his pants and had G.D. touch him. Doctor asked G.D. to take down her pants, which she did because she trusted him. He told her that she looked tired, and she proceeded to her bedroom.
While she was sitting on the bed, thinking about what had happened in the study, Doctor entered the room wearing a robe. He told her she was beautiful, and asked her to undress in front of a full-length mirror. When she did so, he asked her to come back and sit on the bed, where he knelt in front of her, took down his underpants and asked her to touch him. She did so, but she refused his request for oral sex. He began to kiss her and to perform oral sex on her for a short time, telling her that he loved her like a daughter.
The next morning, Doctor asked G.D. if they were still friends, and she said they were. Doctor asked her if she wanted to keep her appointment with him that day, and she said she did. Later, Doctor's wife fixed breakfast for G.D. and drove her to Doctor's office. G.D. did not talk with Doctor about the events of the previous night, and she was unable to do so until three weeks later. He said that although he was her doctor, he also had feelings for her as a man, and that it would never happen again. She continued to visit Doctor for weekly therapy sessions.
On January 13, 1984, Doctor called G.D. to say he was going to come to her house. G.D. called her brother at her father's house and told him not to come over. When Doctor arrived, he sat on the couch in the family room and asked G.D. to sit on his lap, which she did. He asked her to kiss him and to take her clothes off, both of which she did. As he began to fondle her, G.D.'s father and *42 brother entered the house and saw her naked. G.D. testified that she jumped off Doctor's lap, and her father and brother testified that they saw her get up and run into a nearby bedroom, where she put on a bathrobe before returning to the family room. Doctor asked her to say hello to her father, but she said nothing. After a few moments, she went back to the bedroom to get dressed. She returned to the family room, but her father already had left. He went to a local shopping center and called his therapist, who had recommended Doctor to him. The therapist advised him to return home right away and stay there. By the time he arrived home, G.D. and Doctor were gone.
Doctor asked G.D. to go to his office with him, and she agreed. Before leaving, G.D. went to her brother's room to tell him where she was going, but before he could say anything about what he had seen, G.D. told him to "leave it alone."
On the way to his office, Doctor kept his hand in G.D.'s pants and had her touch his penis. They attempted to have sexual intercourse at his office, but it was too painful for G.D. She discussed the incident with her parents the next day. Her father threatened to confront Doctor about what had happened, but G.D. begged him not to do so and, to her knowledge, he never did. G.D.'s mother asked her to move out of the house, and she agreed.
Doctor and G.D. attempted to have sexual intercourse at his house on February 11 and 15, 1984, but were unsuccessful. On March 18, 19, and 20, 1984, G.D. spent the night with Doctor at his house, while his wife and daughter were in California. On each occasion, G.D. arrived at Doctor's darkened house in the evening, he met her at the door, they undressed and got into bed together. They successfully engaged in sexual intercourse on at least one of those occasions.
G.D. and Doctor had sexual intercourse at his house on June 19, 24, and 27; July 3, 9, 10, and 27; and August 10 and 21, 1984. The acts occurred in various rooms, but most of them took place on the living room floor. G.D. marked the specific dates of her sexual encounters with Doctor by overlining the date and marking a box around it on her calendar.
G.D. stopped seeing Doctor altogether a couple of days after she and L.A. discovered each other's involvement with him. However, G.D. spoke with Doctor by telephone in September of 1984. He told her that she was the only one with whom he had been having sex, that he had told his wife that L.A.'s allegations were false, and that G.D. did not make similar allegations against him. In the same call, G.D. spoke with Doctor's wife, who said she did not believe L.A.'s allegations.
In his first point, Doctor contends that the Board knew of the allegations against him and began its investigation more than five years before it first informed him of the charges, thereby committing (1) a violation of his due process rights and (2) laches. Doctor claims that, as a result of this delay, he lost contact with witnesses and access to evidence that might have assisted in his defense and that, based on his reasonable belief that no charges would be filed, he invested significant amounts of money and time in rebuilding his practice after it was damaged by adverse publicity.
Doctor's due process argument is that the delay "severely prejudiced [his] ability to defend himself" and therefore he was denied a fair hearing. In order to invoke the mandates of procedural due process, one must have been deprived of a property interest recognized and protected by the Due Process Clauses. Moore v. Board of Educ., 836 S.W.2d 943, 947[1] (Mo. banc 1992), cert. denied, 507 U.S. ___, 113 S. Ct. 1270, 122 L. Ed. 2d 666 (1993). Doctor had a property interest in his license to practice medicine protected by both procedural and substantive due process as prescribed in § 334.100, R.S.Mo.1994. Thus, Doctor was entitled to procedural due process before his license could be revoked. See id.; Moore, 836 S.W.2d at 947[2].
The Board filed its complaint with the AHC in accordance with § 334.100. Specifically, the Board found that Doctor violated § 334.100.2(5), R.S.Mo.Supp.1984, which was in effect at the time of the complaint:
*43 2. The board may cause a complaint to be filed with the [AHC] as provided by chapter 621, RSMo, against any holder of any certificate of registration or authority, permit, or license required by this chapter or any person who has failed to renew or has surrendered his certificate of registration or authority, permit or license for any one or any combination of the following causes:
* * * * * *
(5) Incompetency, misconduct, gross negligence, fraud, misrepresentation or dishonesty in the performance of the functions or duties of any profession licensed or regulated by this chapter[.]
Subsequently, the AHC conducted a hearing in accordance with § 621.045, R.S.Mo.1986, which reads in pertinent part:
1. The [AHC] shall conduct hearings and make findings of fact and conclusions of law in those cases wherein, under the law, a license issued by any of the following agencies may be revoked or suspended ...:
* * * * * *
State Board of Registration for the Healing Arts
The Due Process Clauses require that in order to deprive a person of a property interest, the person must receive notice and an opportunity for a hearing appropriate to the nature of the case. Moore, 836 S.W.2d at 947 [3]. Moreover, due process contemplates the opportunity to be heard at a meaningful time and in a meaningful manner. Id. at 947[4].
The specific dictates of due process are determined by balancing the competing interests at stake in the particular case: (1) the private interest that is affected by the administrative action; (2) the risk of an erroneous deprivation of this interest through the procedures used and the probable value of additional procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that additional procedural requirements would entail. Belton v. Board of Police Comm'rs, 708 S.W.2d 131, 137[8] (Mo. banc 1986) (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903[6], 47 L. Ed. 2d 18, 33[14] (1976)).
With regard to the first factor, the private interest affected here is concededly significant, namely, Doctor's license to practice medicine in Missouri. We deem the risk of an erroneous deprivation of that interest slight, given the evidence against Doctor at the hearing and the lack of any specific proof that substantial exculpatory evidence was lost as a result of the delay. As for the third factor, we find that the state's vital interest in safeguarding the public health and welfare, which is the primary purpose of statutes authorizing the Board to discipline a physician's license, see Missouri Bd. of Registration for the Healing Arts v. Levine, 808 S.W.2d 440, 442[4] (Mo.App.1991), clearly outweighs the private property interest of Doctor in his license. Therefore, the Mathews-Belton balancing test favors the Board here.
Neither § 334.100 nor § 621.045 provides for a time period within which the Board must file its complaint or the AHC must hold a hearing. Our Supreme Court's statement thirty years ago applies with equal force here:
[The Board] has complied with the requirements of the law in that it initiated a complaint as authorized, gave written notice to the accused more than twenty days before the hearing date, which notice contained specifications of charges which the General Assembly has designated as causes for revocation, held a hearing pursuant to such notice, in which hearing evidence was taken and preserved, and made a determination as directed by the statute. The statute makes specific provision for judicial review of the proceedings and [Doctor] secured such review in the circuit court of the county of his residence. A previous statute from which [§ 334.100 is] derived, Section 7336, RSMo 1919, was applied to circumstances similar to this case, and the board revoked the license of a physician for a ground specified in the statute. The statute and procedure were held by the United States Supreme Court to afford due process, the court saying:
*44 "The due process clause does not guarantee * * * any particular form or method of state procedure. Its requirements are satisfied if he has reasonable notice, and reasonable opportunity to be heard and to present his claim or defense, due regard being had to the nature of the proceedings and the character of the rights which may be affected by it. * * * The procedure authorized by [§ 334.100], as it was applied by the Board, satisfied those requirements[.]"
Rose v. State Bd. of Registration for the Healing Arts, 397 S.W.2d 570, 574[2] (Mo. 1965) (quoting Missouri ex rel. Hurwitz v. North, 271 U.S. 40, 42, 46 S. Ct. 384, 385[2], 70 L. Ed. 818, 821[4] (1926)). Moreover, proof of prejudice is required to show a denial of due process. In re Jones, 431 S.W.2d 809, 819[7] (Mo. banc 1966).
In support of his position that "a number of witnesses could no longer be located," Doctor submitted an affidavit to the AHC, which stated in pertinent part:
8. In addition, the Board's extremely deliberate approach to action against me, and its extremely late disclosure to me that such action was contemplated, have severely impaired my capacity to summon witnesses in my defense. Many have left the St. Louis area, or changed their name by marriage, and I do not have their current addresses. Some witnesses whom I would want my counsel to interview for eventual testimony in my behalf are:
[a]. Monica Santo, last known to be in Argentina (was in group meetings with the ... complainants);
[b]. Julie Tombridge, no current address, a patient of mine who was solicited to make a complaint against me;
[c]. Beth Hertzig, last known to be in Florida, a former patient who knew all three complainants well;
[d]. Adella Pizoit, no current address, who knew the complainants well and was aware of their plot;
[e]. Sandy Jansen, address unknown, perhaps on Okinawa; she publicly accused [G.D.] of lying.
Death has claimed another person, Maureen Lamb, who knew of the 1984 complainants' efforts to make a case against me. Another potential witness is my daughter, Paulina Larocca, who was with me on the California trip described by one of the 1984 complainants; Paulina now lives in western Australia and will have to travel more than 20,000 miles round trip to testify.
9. Besides the unavailability of some witnesses for me, and the distance that others will have to travel, the Board's inordinately slow procedure has made it difficult for any witness to recall in detail the events of more than six years ago.
While Doctor names several purportedly helpful witnesses, he fails to indicate what their testimony would be. We do not know what relevant information Santo, Tombridge and Hertzig would offer. Further, Doctor does not explain the "plot" about which Pizoit would testify; he does not state what lies purportedly would be revealed by Jansen's testimony; and he provides no information as to the nature of the testimony of Lamb and his daughter. We cannot presume that the testimony of the "lost" witnesses would corroborate Doctor's contention that he committed none of the acts of which he is accused. He has not shown what prejudice he suffered without the testimony of the named individuals.
With regard to his claims of lost evidence, Doctor offered one witness at the hearing, an interior designer, who testified that she discarded a date book which would have indicated that he was with her on the date of one of the alleged sexual incidents. Even if that were true, the accusations against him concerned activity on multiple dates. Proof that he did not commit sexual misconduct in one instance still would leave ample evidence and testimony supporting the Board's conclusion.
Other than his own affidavit and testimony, Doctor has offered nothing to demonstrate that he was prejudiced by the Board's delayed action. He actually has benefited from the delay, which deferred the revocation of his license. See Panhandle Coop. Ass'n v. EPA, 771 F.2d 1149, 1153 (8th Cir. *45 (1985). We find no violation of Doctor's due process rights here.
Doctor also argues, however, that the Board's delay in informing him of the charges against him constituted laches, thereby invalidating the Board's action. Doctor may invoke laches only if he can prove that the Board had knowledge of the facts giving rise to its proceedings to revoke his license and it delayed the proceedings to the extent that Doctor suffered legal detriment. See Perez, 803 S.W.2d at 166[11]. Mere delay alone does not constitute laches. The delay must be unreasonable and unexplained and it must be accompanied by disadvantage and prejudice to Doctor. See id. at 166[12]. In order for laches to apply, the prejudice must fall into one of two categories: (1) loss of evidence that would support Doctor's position in defending against the Board's charges, or (2) a change of position by Doctor in a way that would not have occurred but for the delay. See id. at 166[13]. The party seeking to invoke laches carries the burden of proof. Kimble v. Worth County R-III Bd. of Educ., 669 S.W.2d 949, 954 [10] (Mo.App.1984).
Doctor makes essentially the same claims of prejudice to support his laches claim as in his due process claim, namely, that he no longer could locate helpful witnesses and that evidence had been lost. We fail to see how either assertion constitutes sufficient prejudice to invoke laches. Doctor offers no proof, other than his affidavit, that he could not locate helpful witnesses. Such a statement cannot rise to the level of prejudice necessary to invoke laches, particularly since "[e]quity does not encourage laches...." Perez, 803 S.W.2d at 166. Moreover, we cannot assume that witnesses' memories would have been more clear but for the delay. As for the investment in his practice, Doctor fails to show that such expenditures would not have occurred but for the delay. He emphasizes that the allegations against him received ample media publicity, which harmed his reputation and caused him to lose patients, yet he offers nothing to show that the expenditures, corroborated only by his affidavit, were increased by the delay. The money and time allegedly spent to restore his practice may have been responsive to the adverse publicity rather than the delay. We conclude that Doctor has failed to carry his burden to show prejudice supporting the invocation of laches.
Because of our finding that Doctor was not prejudiced by the delay, we need not address whether the delay was unreasonable and unexplained. In any event, we note that although we have questioned whether state government is immune from claims of laches, see Scheble v. Missouri Clean Water Comm'n, 734 S.W.2d 541, 560 (Mo.App.1987), the principle of sovereign immunity in such cases remains intact. See Marion County v. Moffett, 15 Mo. 604, 606 (1852). We will not overturn that principle here. Point denied.
Doctor contends in his second point that the AHC's decision was unsupported by competent and substantial evidence, was arbitrary and unreasonable, and was an abuse of discretion. Essentially, Doctor asks us to reverse the decision because the testimony of L.A. and G.D. was "uncorroborated and incredible" and the women were "mentally ill and disturbed."
The AHC explicitly found the testimony of L.A., G.D., and the others who corroborated their testimony to be more credible than that of Doctor. We may not substitute our judgment on the credibility of witnesses for that of the AHC. State ex rel. Hall v. Wolf, 710 S.W.2d 302, 304 (Mo.App. 1986). If the evidence before the AHC warrants either of two opposed findings, as here, we are bound by its findings. Biggs v. Missouri Comm'n on Human Rights, 830 S.W.2d 512, 518[10] (Mo.App.E.D.1992). Point denied.
Judgment affirmed.
AHRENS, P.J., and KAROHL, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435295/ | 897 S.W.2d 866 (1995)
Joe Garcia MORALES, Guardian of the Person and the Estate of Flavio Morales, Appellant,
v.
EMPLOYERS CASUALTY COMPANY, Appellee.
No. 04-94-00156-CV.
Court of Appeals of Texas, San Antonio.
March 8, 1995.
*867 Gary M. Poenisch, San Antonio, for appellant.
Grant E. Adami, III, E. Wayne Shuffield, Davis, Adami & Cedillo, Inc., San Antonio, Thomas H. Crofts, Jr., Wallace B. Jefferson, Crofts, Callaway & Jefferson, San Antonio, for appellee.
Harry Deckard, Asst. Atty. Gen., Tort Litigation Div., Austin, for amicus curiae State of Tex.
Before LOPEZ, HARDBERGER and BUTTS,[1] JJ.
OPINION
HARDBERGER, Justice.
We withdraw our opinion of December 21, 1994 and substitute the following opinion on rehearing. It does not change the holding but deals with the additional point of whether the Workers' Compensation Commission Appeals Panel filed its opinion on time.
Appellant Flavio Morales brings this appeal from a judgment entered in favor of Employers' Casualty Company in a workers' compensation case. In his first point of error Morales argues that the trial court was without jurisdiction to enter the judgment because Employers' missed the statutory deadline for filing its petition in district court challenging the decision of the Texas Workers' Compensation Commission (the "Commission"). We reverse the trial court's judgment.
Background
Flavio Morales was struck by a car while standing at the corner of an intersection on November 1, 1991. At the time of the accident, Morales was employed by Classified Parking Systems, Inc. Classified Parking Systems is a subscriber under the Texas Workers' Compensation Act and Employers' is the carrier.
As a result of the accident, Morales is unable to communicate, is mentally incompetent and is mentally and physically unable to participate in the administrative proceedings and the trial. Appellant Joe Garcia Morales is Flavio's guardian.
On June 29, 1992, a benefit review conference was held at the Commission offices in San Antonio. The issue was whether Flavio Morales was in the course and scope of employment at the time of his injury. The hearings officer found he was. On August 25, 1992, a contested case hearing was held to resolve this issue. Morales was again held to be in the course and scope of his employment at the time of his injury.
Employers appealed the contested case hearing decision and order. The appeals panel affirmed the contested case hearing decision and order finding Morales to be within the course and scope. The appeals panel issued its order on November 20, 1992. The fortieth day following November 20, 1992, was December 30, 1992. Employers' petition commencing the judicial review of the Appeals Panel decision was filed on January 6, 1993, more than forty (40) days after the Appeals Panel decision was filed. Morales filed a plea to the jurisdiction and then moved for summary judgment on the issue of lack of jurisdiction. The trial court denied the motion for summary judgment. The case was then tried to a jury which found that Flavio Morales' injuries did not arise out of and in the course and scope of his employment. The trial court rendered judgment in favor of Employers' from which Morales now appeals.
*868 Jurisdiction
In his first point of error Morales contends that the trial court lacked jurisdiction because timely compliance with the filing period under the Workers Compensation Act is mandatory and jurisdictional and Employers failed to comply.
Morales' injury occurred on November 1, 1991 thus bringing this case within the "new" Workers' Compensation Act of 1989. Under the new act a party appealing a decision of the Commission must file suit by the fortieth (40th) day after the date on which the opinion of the appeals panel was filed with the division. Tex.Lab.Code § 410.252 (Vernon Supp.1994).
Morales argues that the trial court was without jurisdiction because Employers did not file its original petition within the forty day period. We agree. Employers filed its petition forty-seven (47) days after the appeals panel filed its opinion. Employers was seven days late.
This is a case of first impression under the "new" act, but there have been several opinions under the "old" act. Under the former Workers' Compensation Act, Art. 8307, sec. 7, the filing deadline for appealing from a decision of the Industrial Accident Board was mandatory and jurisdictional. See, e.g., Dallas I.S.D. v. Porter, 709 S.W.2d 642, 643 (Tex.1986); Standard Fire Ins. Co. v. LaCoke, 585 S.W.2d 678, 680 (Tex.1979); Lechuga v. Texas Employers' Ins. Ass'n, 791 S.W.2d 182, 184 (Tex.App.Amarillo 1990, writ denied); Tatum v. Second Injury Trust Fund, 730 S.W.2d 351, 352 (Tex.App.Dallas 1987, no writ); Charter Oak Fire Ins. Co. v. Gorman, 693 S.W.2d 686, 688 (Tex.App. Houston [14th Dist.] 1985, writ ref'd n.r.e.); American Gen. Ins. Co. v. Kohn, 425 S.W.2d 688, 689 (Tex.Civ.App.Austin 1968, no writ). There is no reason to distinguish between the statutory 20 day filing requirements under the old workers' compensation law and the 40 day filing requirement in the new law. Compare Tex.Lab.Code § 410.252(a) (Vernon Supp.1994) with Tex. Rev.Civ.Stat.Ann., art. 8307 § 5 (Vernon 1967). Consequently, we hold that the 40 day filing requirement is mandatory and jurisdictional.
In this case, the appeals panel filed its opinion on November 20, 1992. The appeals panel decision became final on December 31, 1992, because no petition seeking judicial review was on file. Employers failure to file its petition with the district court within forty days of filing of the appeals panel decision deprived the trial court of jurisdiction to act in the present case.
Actual Notice
Employers' position is that even though the panel's decision was filed on November 20, 1992, it did not receive actual notice of the decision until November 30, 1992. As Employers filed the suit on January 6, 1993, they point out they were within 40 days of receiving actual notice. Employers contends that the 40 day deadline did not begin to run until it received actual notice.
The code provision in question reads as follows:
(a) A party may seek judicial review by filing suit not later than the 40th day after the date on which the decision of the appeals panel was filed with the division.
(b) The party bringing suit to appeal the decision must file a petition with the appropriate court in:
(1) the county where the employee resided at the time of the injury or death, if the employee is deceased; or
(2) in the case of an occupational disease, in the county where the employee resided on the date disability began or any county agreed to by the parties.
TEX.LAB.CODE ANN. § 410.252 (Vernon Supp.1994). This provision provides that the petition must be filed in district court no later than the 40th day after the date on which the appeals panel decision is filed with the division. No mention is made of actual *869 notice. Absent an express reference to actual notice in the statute there is no basis for calculating the 40 day deadline from Employers "actual notice" of the appeals panel decision.
In support of its position Employers cites Commercial Life Ins. Co. v. Texas State Bd. of Ins., 774 S.W.2d 650, 652 (Tex.1989) and Meador-Brady Management Corp. v. Texas Motor Vehicle Comm'n, 866 S.W.2d 593, 595 (Tex.1993). Those cases both involved either no notice or late notice of the challenged order. In the present case, Employers received notice of the appeals panel decision in a timely fashion. The appeals panel decision was issued on November 21, 1992, a Friday, and was mailed with a Commission transmittal letter on November 23, 1992, the following Monday. Employers received the decision and transmittal letter on November 30, 1992. Unlike the above cited cases in which the complaining parties' deadline to appeal had expired by the time notice of the order was received, Employers had a full thirty (30) days in which to appeal the Commission's final decision. The transmittal letter accompanying the appeals panel decision plainly states that the parties have forty days from the date stamped on the appeals panel decision to file any petition. The appeals panel decision is stamped in large letters "FILED November 20, 1992". Employers simply allowed the deadline to lapse.
We are not dealing with a situation where a party is barred from court before they ever received notice. Employers admits that it had a full thirty days from the time it acquired actual notice of the appeals panel decision until the time the forty day deadline expired. Employers' complaint is not that it did not have time to file an appeal but that it did not have a full 40 days from actual notice of the Commission's decision. But the statute does not guarantee 40 days. Rather it simply says that 40 days after the decision of the appeals panel has been filed with the division it will be too late to appeal.
Employers cites Ward v. Charter Oak Fire Ins. Co., 579 S.W.2d 909, 910-11 (Tex.1979) for the proposition that it should be allowed to calculate its deadline from the date of actual notice despite the absence of such language in the statute. In Ward, the party intending to appeal an Industrial Accident Board determination put her petition in the mail in time for it to arrive at the courthouse and be filed. However, the petition was mistakenly returned to sender for insufficient postage. Both parties agreed that in fact there had been sufficient postage. The court concluded that where a party which desired to appeal a decision takes the appropriate steps to file the appeal in a timely manner but is prevented from doing so, through no fault of its own, then the court will construe the statute as allowing the appeal to be filed. See Ward, 579 S.W.2d at 910-911; Tatum v. Second Injury Trust Fund, 730 S.W.2d 351, 352 (Tex.App.Dallas 1987, no writ).
Ward is inapposite. In the instant case, Employers had notice of the deadline thirty days before it lapsed but failed to file its appeal until seven (7) days after the deadline had passed. The fault in failing to file the petition lies with Employers.
We also recognize that the appellee charges that the Commission itself was delinquent in making its own deadlines and, therefore, the whole schedule of the appeal is askew. Assuming that appellee is right in its charge against the Commission, although we do not think it is, we do not find the argument persuasive. The appeals panel issuance date is clear and undisputed: November 20, 1992. Whether another date could have been arrived at had the Commission met its own deadline becomes immaterial. It would also be unworkable to go behind the date certain on appeal issuance date on every case and try to figure the date had all deadlines been met. Therefore, we hold that the date that controls the beginning of the 40-day deadline is that contained on the Commission's order.
Although we think the type of review advanced by Employers is unworkable, the Workers' Compensation Commission Appeals Panel still filed its appeals opinion timely. A *870 short recitation of the procedural facts will demonstrate why the Appeals Panel filed its opinion on time.
The Decision and Order of the Contested Case Hearing Officer was filed on September 15, 1992, and received by Employers on September 25, 1992. According to Texas Labor Code, § 410.202, Employers had until October 10, 1992, to file its appeal. Employers' appeal was filed on October 9, 1992. According to section 410.202, Morales had until fifteen days after service of Employers' appeal to file its response. Morales filed his response on October 21, 1992. The Appeals Panel had until November 20, 1992, to issue its opinion under § 410.204. The Appeals Panel filed its opinion on November 20, 1992.
Employers' analysis departs with the above by stating that Morales response should be "deemed" filed as of October 15, 1992, the date it was mailed, pursuant to 28 Tex.Admin.Code § 143.4(c). Resort to section 143.4(c) is unnecessary in this case because Morales' response was actually filed on time. Section 143.4 reads in pertinent part:
(c) A response made under this section shall be presumed to be timely filed or timely served if it is:
(1) mailed on or before the 15th day after the date of receipt of the appellant's request, as provided in subsection (a) of this section; and
(2) received by the commission or other party not later than the 20th day after the date of receipt of the appellants' request. (emphasis added).
This rule is a presumption that a response is timely filed if certain requirements are met. However, there is no need to indulge in a presumption of timely filing when a document is in fact timely filed. Morales response was not due until October 24. The response was received by the Commission on October 21, therefore it was timely filed. According to Commission rules, a response is "filed" with the Commission on the date it is received. The applicable rule provides:
Unless otherwise specified in the Texas Workers' Compensation Act or these rules, forms, reports, and other documents required to be filed by a specified time will be considered timely only if received by the commission at Austin, or at an appropriate regional field office prior to or during business hours on the last permissible day of filing.... (emphasis added).
28 TEX.ADMIN.CODE § 102.7. Morales' response was received by the Commission at Austin on October 21, 1992, and therefore is considered filed on that date. It was received prior to the last permissible day of filing. There is no need to resort to a presumption of timely filing.
Pursuant to both Tex.Lab.Code § 410.204 and 28 Tex.Admin.Code § 143.5(a), the Appeals Panel was required to issue its decision not later than thirty (30) days from October 21, 1992. The Appeals Panel decision was issued on November 20, 1992, the thirtieth day after Morales' response was filed with the Appeals' Panel in Austin. Therefore, Employers' argument that the Appeals Panel decision should be considered void because it was not issued in compliance with Tex.Labor Code § 410.204 is groundless.
Employers cites Milam v. Miller, 891 S.W.2d 1 (Tex.App.Amarillo 1994, writ ref'd). However, Milam is inapplicable because it was interpreting the Texas Rules of Civil Procedure for filing pleadings. Miller was not concerned with the rules promulgated by the Texas Workers' Compensation Commission. As discussed above, the Commission has expressly stated that a document is filed with the Commission when it is received in Austin, not when it is mailed. See Tex.W.C.Comm'n, 28 Tex.Admin.Code § 102.7.
Finally, Employers argues that the trial court properly had jurisdiction because to bar it from proceeding under these circumstances would be a denial of its right to due process. Texas Workers' Comp. Com'n v. Garcia, 862 S.W.2d 61, 75 (Tex.App.San Antonio 1993) rev'd on other grounds 893 S.W.2d 504 (1995). Employers' argument is predicated on the assumption that there was a default by the appeals panel in filing its *871 decision. In our opinion there was no default on the part of the appeals panel.
Morales' first point of error is affirmed. The trial court's judgment is reversed and rendered. The trial court had no jurisdiction after the 40 days had expired and the Commission's appeals decision became final.
NOTES
[1] Justice Shirley W. Butts not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435233/ | 337 S.W.2d 693 (1960)
B. C. McCOLLUM, Appellant,
v.
J. P. McKELLAR, Appellee.
No. 7205.
Court of Civil Appeals of Texas, Texarkana.
June 28, 1960.
Supplemental Opinion July 26, 1960.
Kenley, Sharp, Ritter & Boyland, Long view, for appellant.
Fulmer, Fairchild & Badders, Nacogdoches, for appellee.
FANNING, Justice.
This is a suit for personal injuries and for property damage brought by J. P. McKellar against B. C. McCollum, arising from a motor vehicle collision occurring August 19, 1957, in Rusk County, Texas. Defendant admitted his negligence was a proximate cause of the collision. Upon jury trial all damage issues were answered favorably to plaintiff and the trial court entered judgment for plaintiff in the total amount of $74,925, with interest from date of judgment and court costs, from which judgment defendant McCollum has appealed.
Appellant has briefed twelve points of error. By points 1 to 6 inclusive appellant attacks the jury's findings to special issues Nos. 1 and 3, on the grounds of "no evidence", "insufficiency of the evidence", and *694 that such findings were "against the greater weight of credible testimony". By points 7 and 8 appellant contends that the answers of the jury to special issues Nos. 1 and 3 were "excessive in view of the evidence".
The jury in response to special issue No. 1 assessed plaintiff's damages at $61,895 for physical pain and mental anguish, and loss of earning capacity.
The jury in response to special issue No. 3 assessed plaintiff's damages at $12,500 for future medical expenses.
(In response to other issues no under attack here the jury assessed plaintiff's damages for accrued medical expense at $195, and also found in favor of plaintiff for certain property damages.)
Appellant under his points 1, 2 and 3 makes the following statement:
"Mr. McKellar was involved in a motor vehicle collision on August 19, 1957, when a truck in which he was sitting was struck from the rear by Mr. McCollum's automobile and knocked across an intersection. He offered testimony that his head was thrown backward and against the rear of the cab of the truck (S.F. 75-79). He was hospitalized on two occasions, the day of the accident for a period of twenty-four hours (S.F. 616), and a few days later for a little over three days (S.F. 618). He was seen by Dr. W. E. Gabbert of Rusk, at intervals until the early part of November, 1957 (S.F. 620). Dr. Gabbert was of the opinion Mr. McKellar had suffered a whip lash injury to the neck with some muscle strain (S.F. 624) and should have recovered in from six to eight weeks (S. F. 626). Dr. Wilcox, whose testimony was offered by Plaintiff felt that Mr. McKellar would recover with minimal discomfort (S.F. 437-438) and when he last saw him on May 2, 1958, thought he was able to do carpenter work (S.F. 438). Dr. Ray King, who was chosen by the attorneys for Mr. McKellar, and whose testimony was offered by him was of the opinion Mr. McKellar had a cervical sprain superimposed on degenerative changes (S.F. 502). He testified Mr. McKellar could do work that did not require him to look up or to work overhead (S.F. 527) without pain (S.F. 531). Dr. Harry W. Slade, also chosen by the attorneys for Plaintiff, and testifying in his behalf, was of the opinion Mr. McKellar had a ruptured cervical intervertebral disc (S.F. 177). None of the doctors found any evidence of fracture of any of the bones in the neck.
"Dr. Wilcox recommended a Queen Anne collar which Mr. McKellar has worn almost continuously since November, 1957, (S.F. 112). Mr. McKellar complained of headaches, neck pain, numbness in portions of his arms, pain in his hips, and dizziness from the time of the accident to the time of trial. Mr. McKellar complained of weakness in his right arm and hand and testified he had been unable to work since the accident (S.F. 127-129). Dr. Slade classified Mr. McKellar's pain as moderate (S.F. 176-181). The only lay witnesses who testified as to the Plaintiff's disability and pain since the accident were his wife (S.F. 550-564) and daughter (S.F. 587-597).
"In his petition, Plaintiff sought $124,500.00 in his prayer for relief (Tr. 4). Specific allegations pertaining to damages consisted of allegations of permanent physical and mental pain, with no amount alleged, permanent loss of earning capacity of $100.00 per week and a life-expectancy of 22.12 years at the time of the accident, past medical of $400.00, future medical in an unknown amount, and $500.00 property damage (Tr. 2-3). The Plaintiff had one year of college and the courses he studied were of no benefit to him now (S.F. 44-45). He was a carpenter *695 and painter by trade and a considerable amount of his work had been as a box-maker (S.F. 60). Although he testified as to various wage-rates (S.F. 62, 66, 67), the Plaintiff had no recollection of the wages earned for any one year prior to the accident (S.F. 601). Income tax returns for the years 1950 through 1957 showed personal earnings in an aggregate amount of $7,216.15, or an average of $942.00 annually (S.F. 682-716).
"The jury awarded $61,895.00 damages for physical pain and mental anguish and loss of earning capacity (Tr. 19-20)."
Appellee in his brief in reply to points 1 to 3, inclusive, challenges appellant's statement under points 1 to 3, incl., as being incomplete and incorrect in many respects. Appellee's reply statement contains 22 pages and obviously is too long to quote here but same is here referred to for appellee's version of the matter. In this statement, appellee points out that he was stopped in his pick-up truck at an intersection waiting for the red traffic light confronting him to change to green, when he was struck from the rear by a Buick automobile driven by McCollum travelling at a speed of approximately 70 miles per hour, with the pick-up truck being knocked a distance of 70 to 100 feet against a steel post set in concrete; that McKellar was rendered temporarily unconscious and taken to the hospital. A large bump or knot on the back of McKellar's head was observed and was described as being as large as a hen egg or a tea cup. He testified as to various sums of wages made by him as a carpenter, boxmaker, painter, cattle raising, dairying, farming, etc. He testified in great detail as to his various pains and suffering and as to what had been done for him by the various doctors who examined and treated him, telling of the steel neck brace first put on him and later of the "Queen Anne's Collar" that was put on him and which he was wearing at the trial. His complaints of pain were very severe and were also varied, ranging from the neck, where apparently the greater pain existed or was complained of, to complaints indicating a ruptured cervical disk, to pains and numbness in his right arm, the back of his right hand and three fingers on his right hand. He also complained of loss of vision, loss of smell, and of severe and almost constant headaches. He also complained of trouble with his right hip. He testified further that before the collision his right arm and shoulder were larger than the left, but since the collision they have become much smaller. He further testified that he had not done and had not been able to do any work since the collision. Lay witnesses corroborated him with respect to his appearance being worse after the accident than before the accident, and also testified as to his numerous subjective complaints of various pains.
The medical testimony in the case was in some respects similar and in other respects conflicting. Dr. Gabbert, (placed on the stand by defendant) the first doctor to see and treat McKellar, took X-rays of McKellar's neck and found nothing abnormal in the bony pathology of the cervical vertebra. He put McKellar in a neck brace and kept him in the hospital until the following morning. The day after McKellar went home he returned to the hospital and stayed three days. Dr. Gabbert's impression was that McKellar has whiplash injury to the neck with probably some muscle and fascial strain or tearing. He saw no objective symptoms of injury other than muscle spasm in the neck, and he did not recall seeing the large knot on the back of McKellar's head that lay witnesses saw and testified to. Because of McKellar's subjective complaints he sent McKellar's to Dr. Wilcox in Tyler. Dr. Gabbert's impression was the same as that entertained by Dr. Wilcox after Wilcox's first examination of McKellar, that McKellar would probably recover completely in six to eight weeks.
*696 The deposition of Dr. Wilcox was taken by defendant and plaintiff cross-examined Dr. Wilcox in said deposition. Certain portions of Wilcox's deposition were introduced in evidence. On October 30, 1957, his X-rays of McKellar's neck showed a straightening of the normal lordotic curve. He also heard all the subjective complaints that were given to him by McKellar at that time. We quote from appellee's brief on pages 11 and 12 with respect to appellee's further analysis of Dr. Wilcox's testimony as follows:
"* * * He diagnosed McKellar's condition as a myofascial strain, by which he meant a tear, either large or small, of the muscles, and the supporting tissues including the ligaments and tendons, and his prognosis, `guess as to what is going to happen' was that McKellar would recover in six to eight weeks. (428.)
"On February 14, 1958, he did not reexamine McKellar, but prescribed physical therapy, consisting of intermittent head halter traction, with heat, massage, and active motions of the cervical region. On October 30, he had prescribed a Queen Anne's collar support for McKellar. (428, 430.)
"His examination on May 2, 1958, revealed that McKellar's condition was essentially unchanged. X-rays he took on this date, May 2, 1958, revealed nothing different from that which was revealed by the x-rays taken on October 30, 1957. (431-433, 446.)
"At the time of his examination on May 2, 1958, he felt that `functionally' McKellar was able to do some forms of work. (438.) By that he means so far as the mechanical ability to move the portions of his body is concerned. McKellar has no disturbance of function; but this statement is made without reference to pain, and he did not attempt to evaluate McKellar's ability to work as it might be affected by the pain the movements of his body would cause. When he says McKellar is functionally able to work, he lays aside all consideration save the actual motor ability to move. (475-476.)
"Though at the outset he thought McKellar would recover from the injury in all probability in six to eight weeks, McKellar did not do so, and consequently, when he saw him last, on May 2, 1958, he was compelled to revise his estimate of the probable duration of McKellar's disability, so that at that time, he really had no definite idea about how long the injury would last. He has not expressed the view that McKellar would ever get over this myofascial strain completely. He would expect him probably to suffer some degree of disability as a result of the injury from now on out, and the exact extent of that he is unable to predict. (470-471.)
* * * * * *
"McKellar's headaches may be accounted for by damage to the nerves of the autonomic system going up into the brain from the neck, or by injury to the brain itself. His blackouts may be due to his pain. (462-464.) The injury McKellar is suffering with, in his opinion, is such as would be expected to cause McKellar to suffer pain; he expected pain when he saw the flattening of the lordotic curve. (477.)
"From the time of his first examination of McKellar, McKellar's condition remained essentially the same. (482.) And since he has not seen McKellar since May 2, 1958, he is not prepared to express an opinion as to McKellar's condition since that time. (487.)"
Dr. Ray E. King, an orthopedic surgeon of Shreveport, Louisiana, testified by deposition taken by plaintiff and Dr. Harry Warren Slade, a neurosurgeon of *697 Waco, Texas, testified as a witness for plaintiff. The testimony of these doctors was very strongly in favor of plaintiff, and appellee's analysis of their testimony is contained on pages 14 to 21, inc., of appellee's brief and is too long to quote here. This evidence however, is amply sufficient to support a finding of serious permanent disability on the part of appellee to earn money and would virtually support a finding of total and permanent disability or something very near that. This testimony would also corroborate and support the view that appellee's complaints of pain were severe to moderate, and severely to moderately disabling. Dr. Slade also was of the opinion that Mr. McKellar had a ruptured cervical disk in addition to his other multiple injuries and complaints, and that an operation and hospitalization therefor would cost approximately $700, and that he could not guarantee that the operation would be successful or that it would relieve Mr. McKellar's situation.
Dr. Slade was of the further opinion that the reasonable cost of Mr. McKellar's future medical expenses would be $40 or $50 per month for the rest of his life.
Appellee on page 9 of his brief states with reference to Mr. McKellar's income tax returns for the years 1950 through 1957, inclusive, as follows:
"McKellar's income tax returns for the years 1950 through 1957, inclusive, introduced in evidence, reflect that he reported income during these years as follows:
"1957$664.90
"1956$302.25 (McKellar testified he worked on his house most of that year.) (675.)
"1955$545.75 ($431.75 + $114.00)
"1954$1,182.25 (Income from self-employment of $1,003.93, plus wages of $151.12 and $27.20)
"1953$1,336.51 ($1,288.51 + $48.00)
"1952$1,688.75
"1951$1,644.10 ($141.60 + $762.33 + farm profit of $740.17.
"1950$1,798.73 ($1,211.03 + farm profit of $587.70) (682-716.)"
There was testimony to the effect that McKellar's father lived to be 78 and that his mother still living was 78 or 79. McKellar at the time of the injury was 50 years of age and had a life expectancy of 22.2 years. Dr. Slade testified to the effect that McKellar would probably live 27 years longer.
Appellant in his brief on page 8, states that the annual average of plaintiff's earnings as shown by his income tax reports from 1950 through 1953 was $942 annually. Appellant in his brief, using the figure of $942 as appellee's annual earnings, takes the position that certain discounts for cash payment of damages were allowable, and reaches the conclusion that the evidence would not support a finding in excess of $15,862 for loss of earning capacity (see page 12 of appellant's brief). Appellee in his brief on page 39 contends to the effect that McKellar's earning capacity was greater than shown by his previous income tax reports, and that his earning capacity was to be properly estimated on the basis of his experience and training and abilities to earn money, rather than solely upon the basis of what he may have earned over a few years immediately prior to his injury. It is appellee's position as shown in his brief on page 40 thereof that under the evidence the jury was entitled to believe that the earning capacity of a man of McKellar's experience and abilities and attitudes was in excess of $1,500 per year. Appellee sums up his position in this respect, after quoting various figures, on page 41 of his brief, as follows:
"We respectfully submit that the jury, under the record in this case, would have been well authorized to determine that the damages to be assessed for McKellar's lost earning capacity *698 as a result of his injuries should be substantially in excess of $25,000.00."
If appellee is correct that the evidence will support a verdict of at least $25,000 for loss of earning capacity, that amount subtracted from the sum of $61,895 would leave the sum of $36,895 assessed for physical pain and suffering and for mental anguish. If appellant's figures of $15,862, or another figure less than $25,000 was deemed to be the correct amount allowable for loss of earning capacity, then the damages for physical pain and suffering and mental anguish would be in excess of $36,895. At any rate, irrespective of the conflicting theories of the parties with respect to the amount supportive for loss of earning capacity, it is apparent that the greater bulk of plaintiff's award of $61,895 on special issue No. 1 would be for pain and suffering and for mental anguish.
Appellee in his excellent brief persuasively argues that Mr. McKellar's complaints of severe pain, corroborated by lay witnesses and particularly corroborated by Drs. Slade and King, and the evidence as a whole, would amply support a large award for pain and suffering and for mental anguish.
We have reached the conclusion that there is evidence of probative force to support the jury's findings to special issues Nos. 1 and 3, and that the evidence is sufficient to support such findings.
Furthermore we have carefully reviewed all of the evidence in the case in the light of the rules announced by the Supreme Court of Texas in the case of In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, and are of the opinion that the findings of the jury in response to special issues Nos. 1 and 3 are not so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.
Appellant's points 1 through 6, inclusive, are respectfully overruled.
Rule 440, Texas Rules of Civil Procedure, provides as follows:
"In civil cases appealed to a Court of Civil Appeals, if such court is of the opinion that the verdict and judgment of the trial court is excessive and that said cause should be reversed for that reason only, then said appellate court shall indicate to such party, or his attorney, within what time he may file a remittitur of such excess. If such remittitur is so filed, then the court shall reform and affirm such judgment in accordance therewith; if not filed as indicated then the judgment shall be reversed."
The Supreme Court of Texas in the case of Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017, 1122, in construing Rule 440, T.R.C.P., supra, stated in part as follows:
"The rule contains no language suggesting that when the Court of Civil Appeals is of the opinion that the verdict of the trial court is excessive and that the cause should be reversed for that reason only, it cannot require remittitur unless if finds in the record evidence other than that afforded by the amount of the verdict that the jury in fixing the amount was influenced by passion or prejudice. We believe that under this rule a Court of Civil Appeals may require remittitur when, after consideration of the amount of the verdict and the evidence bearing upon the amount, it finds that the verdict is excessive and that the cause should be reversed for that reason only. The amount of the verdict itself, when considered in the light of the evidence in the record, may be enough to convince the Court of Civil Appeals that it was the result of passion or prejudice or other improper motive or was in disregard of the evidence. In our opinion there need not be extraneous proof of passion or prejudice on the part of the jury. Indeed, it *699 would be in many cases very difficult and often impossible to make that proof. The foregoing conclusions find support in Judge Martin's opinion, adopted by the Supreme Court, in World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962."
Having considered the myriad factors involved in this case and in the exercise of the duties enjoined upon this court under Rule 440 T.R.C.P., supra, it is our conclusion that the jury's answers to special issues Nos. 1 and 3 are each manifestly too large and are each excessive. It is found by us that the answers to issues Nos. 1 and 3 are in the aggregate excessive by the sum of $20,000. It is found by us that the evidence will support a verdict and judgment in the sum of $54,925, and that the judgment of the trial court is excessive by $20,000.
Appellant's points 9, 10, 11 and 12 have been carefully examined, are deemed as not presenting reversible error under the record in this case, and are respectfully overruled.
Having found the judgment to be excessive by the sum of $20,000, it becomes the duty of this court, therefore, to order that the case be reversed and remanded for new trial unless within fourteen days after the date of this opinion the appellee files a remittitur of $20,000.
Supplemental Opinion
The supplemental opinion of July 19, 1960 is withdrawn and the following supplemental opinion is substituted in lieu thereof:
On July 7, 1960, appellee filed a remittitur of $20,000 in compliance with the suggestion of remittitur in the original opinion of June 28, 1960. The judgment of the trial court will be reduced by the amount of the remittitur and as so modified is affirmed with the costs taxes as hereinafter outlined.
In view of the fact that the judgment of the trial court has been reduced by remittitur as above outlined, and the cause affirmed as modified, in our best discretion viewing the record as a whole in this cause, it is our opinion that it would be just and equitable to tax three-fourths of the costs in this cause (both in the court below and in this court) against the appellant, and that one-fourth of such costs should be taxes against the appellee.
Affirmed as modified and the costs are taxed in accordance with this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435244/ | 337 S.W.2d 393 (1960)
R. L. PHINNEY, Appellant,
v.
C. H. LANGDEAU, Receiver of Provident American Trust Co. et al., Appellee.
No. 10770.
Court of Civil Appeals of Texas, Austin.
June 29, 1960.
Rehearing Denied July 27, 1960.
Russell B. Wine, U. S. Atty., Preston H. Dial, Jr., Asst. U. S. Atty., San Antonio, for appellant.
Cecil C. Rotsch, Norman V. Suarez, F. William Colburn, Austin, for appellee.
ARCHER, Chief Justice.
This is a case where the District Director of Internal Revenue, R. L. Phinney, filed a claim against three insurance companies in receivership. Upon motion for payment of the claim the District Court held that the claim had been rejected by the Receiver, and the claimant failed to bring action upon the rejected claim within three months after service of notice of rejection, thereby rendering the rejection final and not subject to review.
The appeal is based on three points of error and are that the court erred in holding *394 that a letter to Harry C. Russey on October 6, 1958 constituted proper written notice under Article 21.28, Sec. 3(h) of the Insurance Code, V.A.T.S., in holding that the court's order of September 4, 1958 constituted proper written notice, and in holding that the three months' time for appeal of the receiver's rejection of the claim passed without such appeal having been filed and has therefore become final and not subject to review.
This is a case of first impression involving an interpretation of the following portion of V.T.C.S., Insurance Code:
Art. 21.28, Sec. 3(h). "Action on Claims * * * Upon the rejection of each claim either in whole or in part, the receiver shall notify the claimant of each rejection by written notice. Action upon a claim so rejected must be brought in the court in which the delinquency proceeding is pending within three (3) months after service of notice * * *".
Prior to April 26, 1957 the District Court appointed J. D. Wheeler permanent receiver of the Provident American Trust Co., Legal Guaranty Life Insurance Co. and Provident American Life Insurance Co. et al.
On April 26, 1957 appellant through R. E. Kocurek mailed letters to the three companies in care of the receiver, informing Wheeler that documentary stamp taxes were due and owing by each of the companies, the claim aggregating $777.70, which was paid.
On May 13, the supplemental claim was made by R. L. Phinney, District Director of Internal Revenue, a duly authorized agent for the United States in this behalf, and further reciting that due demand on the tax debtor for the payment of said taxes had been made and that said taxes had not been paid, and claim was duly sworn to by Mr. Phinney.
Article 21.28, Sec. 3(h) supra, provides that notice of the rejection of a claim in whole or in part, that the receiver shall notify the claimant of such rejection by written notice.
On October 6, 1958 a letter was sent to Mr. Russey attaching a photostatic copy of a letter of rejection dated December, 1957.
On March 17, 1959 Mr. Russey requested the payment of the claim and he received a letter from an attorney for the receiver that the claim for $16,883.50 had been rejected by the letter of December 16, 1957.
On May 7, 1959 the attorney for the receiver wrote Mr. Russey, referring to prior correspondence concerning appellant's claim, and stated that the receiver was closing the receivership and requested a reply.
On July 21, 1959, appellant filed a motion for payment of its claim or a hearing thereon. A hearing on the motion was had on October 29, 1959, and judgment adverse to appellant was entered.
The court concluded as a matter of law that the provisions of Article 21.28 are controlling as to the rights of both parties and that appellant having filed the supplemental claim in the District Court was bound by the orders of that Court; that proper notice of the rejection of the claim was given on September 4, 1958 by the court's order approving the rejection and by the letter of October 6, 1958 with its enclosure, and that Russey was a proper person to notify of the rejection of the claim; that the three months' time for an appeal had expired without such appeal having been filed, and that the receiver's rejection had become final prior to July 21, 1959.
Subd. (d) (4) of Rule 4, Federal Rules of Civil Procedure, 28 U.S.C.A., provides for service on the United States and sets out how process may be had and upon whom.
It is apparent that none of the letters or notices were directed to claimant.
Appellee takes the position that the letter dated December 16, 1957 addressed *395 to R. E. Kocurek, Collection Officer, United States Treasury Department, signed by V. F. Taylor, an attorney for the receiver, constituted notice to the United States Government disallowing the claim, and that the three months' appeal period would preclude the necessity for his justifying the rejection in the court of law.
Appellant takes the position that notice to Kocurek, or Harry C. Russey, was not to a proper person and that notice to the claimant is mandatory and that the party to be served in this instance would be R. L. Phinney, who personally signed the proof of claim.
The further contention is that neither Kocurek or Russey was authorized by Phinney, or by any governmental directive to accept service of notice, or to sign and file the supplemental claim.
We do not believe that the letter of December 16, 1957 constituted proper written notice under Art. 21.28, Sec. 3(h), supra.
The court's order of September 4, 1958 authorizing combining of accounting and records of the receivership, and payment of dividends would not constitute written rejection of the claim, but reaffirm the position of the receiver that written notice had previously taken place, and that more than three months had elapsed with no appeal being taken. The United States Government is not named in the order and such order cannot be considered as the written notice required by Art. 21.28, Sec. 3(h). United States v. Whisenant, Tex. Civ.App., 75 S.W.2d 958, er. ref.
The order makes no mention of the Government's claim and cannot be notice of rejection. J. M. West Lumber Co. et al. v. Lyon et al., 53 Tex.Civ.App., 648, 116 S.W. 652, er. ref.
In McClure v. Georgia Casualty Co., Tex.Com.App., Sec. A, 251 S.W. 800, judgment adopted by the Supreme Court, the court discusses the giving of notice by the provisions of Articles 5246-77, 5246-78, V.A.C.S. and held that notice upon the person to whom it is required to be given is necessary.
We do not believe that limitation began to run since the required written notice was not given. Federal Electric Co. v. Johnson, Tex.Civ.App., 187 S.W.2d 410, writ dism.
Statutes regulating the general subject of notice are construed most liberally in favor of the party who is affected by the notice. Hill v. Faison, 27 Tex. 428.
The judgment of the Trial Court is reversed and the cause remanded.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435271/ | 897 S.W.2d 488 (1995)
Mario HERNANDEZ, Appellant,
v.
The STATE of Texas, Appellee.
No. 12-92-00390-CR.
Court of Appeals of Texas, Tyler.
April 5, 1995.
*490 Renie McClellan, Cedar Hill, for appellant.
Jeffrey Herrington, Palestine, for appellee.
HOLCOMB, Justice.
A jury found Appellant, Mario Hernandez, guilty of murder and sentenced him to 60 years in prison. In his appeal, he assigns six points of error. We will affirm.
According to the State's evidence, on June 8, 1989, several members of the Vega and Hernandez families were at an athletic complex in Palestine, Texas, watching baseball games. Appellant got into an argument over a baseball cap with Jose Alejandro Vega ("the deceased"). At trial, the deceased's son, Jose Santos Vega ("Jose"), testified that when he had approached the two men during their argument, his father was holding a stick and Appellant was holding a switchblade and a beer. When Jose took the stick from his father, Appellant stabbed Jose's father in the chest. Appellant immediately left in a car and was followed by his brother, Daniel Hernandez ("Daniel"). Jose helped his father into a van to drive him to the hospital. Enroute, Jose attempted to pass Daniel's vehicle and Daniel rammed into Jose's van, which caused the van to run off the road into a ditch. An ambulance finally took Jose's father to the hospital where he was pronounced dead.
In his first point of error, Appellant contends that the trial court erred when it allowed the State to impeach a defense witness by showing that the witness was serving deferred probation on a prior offense. At trial, Appellant called Daniel Hernandez as a witness during the guilt/innocence stage. On cross-examination, the State questioned him as follows:
Q: Okay. Were you involved in an accident on September 14th, 1986, with James Brent Phillips?
A: Yes.
Q: Were you subsequently charged with a felony offense of failure to stop and render aid?
MR. VAN METER: [Defense Counsel] Your Honor, I am going to object to this at this time.
. . . . .
Q: Isn't it a fact that in October you were involved in a collision with one James Phillips?
A: Yes.
*491 Q: Isn't it a fact that Mr. Phillips suffered some fairly serious injuries as a result of that collision?
A: No.
Q: Did he suffer substantial property damage?
A: Could I speak to Hugh Summers?
Q: No.
MR. VAN METER: Your Honor, may we approach the bench?
THE COURT: No sir. Proceed. Answer the question.
A: Could you ask that question again, please?
Q: Did Mr. Phillips suffer some pretty substantial damages as a result of that incident?
A: Well, when Iwhen that accident happenedwhen I saw it I got out of my car.
THE COURT: Be responsive to the question, please.
A: If there was a lot of damage to the car?
Q: Yes.
A: Yes. I think so.
Q: Was Mr. Phillips transported to the hospital in an ambulance?
A: Well, after the accident happened, when I got out of the car I got down to see what was going on and what happened. And then I didn't find anybody in the car.
Q: Okay. Did you leave the scene?
A: Well, at first yes. I sawI didn't see anything. I looked around. I did not see anything. I needed to go talk to my wife, because they were probably going to investigate me. I tried to call someone.
Q: When did you try to call someone?
A: Well, right after the accidenta short time after the accident.
Q: When did you go to the police? Did you leave your vehicle at the scene?
A: Yes.
Q: Was it registered in your name?
A: Yes.
Q: Did you subsequently learn that the police were looking for you?
A: Yes. That's why I went to the police.
. . . . .
PROSECUTOR: Your Honor, at this time the State would offer State's Exhibit Number 12, which is a certified copy of the indictment in Cause Number 19,179, in the Third Judicial District Court of Anderson County; an order deferring further proceedings and placing the defendant on probation and the conditions of probation.
MR. VAN METER: Your Honor, we would like to renew the same objections that we had to this when the jury was out of the presence of the Court.
THE COURT: It's not necessary to repeat them. And, once again, the Court overruled them. The exhibits are admitted.
MR. VAN METER: We also ask to note our exception.
Q: Mr. Hernandez, as a result of that automobile wreck with Mr. James Brent Phillips were you charged with a felony offense of failure to render aid?
A: Well, my lawyer is the one who would know. After that happened I went to the police and reportedpresented myself.
Q: Did you subsequently plead guilty to the offense of failure to stop and render aid, and were you placed on probation on the 9th day of March, 1989three months before this stabbingfor the offense of failure to stop and render aid?
A: Yes. I was accused and I got probation and I paid money. I paid for insurance. And my lawyer is the one who knows more about this than I do.
Q: Did you not plead guilty to the offense?
A: Well, he's the one who knows.
Q: I beg your pardon?
A: The lawyer is the one who knows. I don't really understand.
Q: Are you on felony probation at this time?
A: Yes.
*492 Q: Were you not on felony probation on June 18th, 1989 for the felony offense of failure to stop and render aid?
A: Well, yes, I was under probation, but at the same time I was not the one that hit anybody. They were the ones that hit me.
. . . . .
Q: On June 18th, 1989the date Mr. Vega was stabbed to deathwere you on probation for felony probation for the offense of failure to stop and render aid?
A: Well, I already had probation. I mean, do I have another probation?
Q: Were you on felony probation for the offense of failure to stop and render aid on June 18, 1989?
A: I was on probation since '89.
Appellant objected on the grounds that Daniel had never been convicted of the prior charges of failure to stop and render aid; therefore, any finding of guilt had been deferred and was not proper evidence to be offered.
On appeal, Appellant cites Soliz v. State, 809 S.W.2d 257 (Tex.App.San Antonio 1991, pet. ref'd), wherein the court held that a State's witness could not be impeached by offering evidence that the witness was on deferred adjudication probation for a felony offense. He argues that a witness cannot be impeached under the Rules of Evidence unless that person has been convicted of a crime. Appellant further points out that the statute dealing with deferred adjudication specifically provides that a person is not convicted of a crime if that individual's probation has been deferred. TEX.CODE CRIM.PROC. ANN. art. 42.12, § 5(a) (Vernon 1995).
The State cites Paley v. State, 811 S.W.2d 226 (Tex.App.Houston [1st Dist.] 1991), in support of its proposition that the State's impeachment of Daniel was proper because the evidence was offered for the purpose of showing bias and motive. However, the circumstances in Paley differ from the instant case. In Paley, the First Court of Appeals held that despite the fact that the witness was on deferred adjudication, he could be cross-examined regarding his probationary status because there was evidence that his testimony would have revealed that he had struck a deal with the State to terminate his probation early. Paley, 811 S.W.2d at 229. However, the reasoning used in Paley is not applicable to Appellant's case.
For the purpose of attacking the credibility of a witness, the court may admit evidence that is offered to prove that the witness has been convicted of a crime, if such evidence is elicited from the witness or established by public record, and the court determines that the probative value of admitting such evidence outweighs any prejudicial effect. Tex.R.Crim.Evid. 609. Apparently, Daniel was placed on felony deferred adjudication, but he had never been convicted of any offense. We hold that the court erred when it allowed the State to impeach Daniel Hernandez by offering evidence to show that he was serving probation for a deferred adjudication. Green v. State, 663 S.W.2d 145, 146 (Tex.App.Houston [1st Dist.] 1983, pet. ref'd).
Having found that evidence of Daniel's deferred probation was error, we next determine whether the error was harmless beyond a reasonable doubt. Tex.R.App.P. 81(b)(2). In determining whether the trial court's error was harmless, we look to Harris v. State, 790 S.W.2d 568, 569 (Tex.Cr.App. 1989). According to Harris, we should not focus on the outcome of the trial. Id. Instead, we focus on the integrity of the process leading to the conviction. Id. In doing this, we examine; (1) the source of the error, (2) the nature of the error, (3) whether, or to what extent the error was emphasized by the State, and (4) the probable collateral implications of the error. Id. Furthermore, we must determine how much weight a juror might have placed upon the error, and whether declaring the error harmless would encourage the State to repeat it with impunity. Id. Following these guidelines, we review all of the evidence and focus on the trial process itself. Id.
Applying the standard set forth in Harris, we hold that the knowledge of Daniel's probationary status had no effect on the jury's verdict. Appellant admitted that he stabbed the deceased. Appellant's defense *493 to the offense of murder was self-defense. Testimony elicited from Daniel concerned events that occurred after the victim was stabbed. Daniel did not see the stabbing so his testimony did not aid, nor did it hinder, Appellant's case. The impermissible impeachment evidence related only to Daniel's credibility concerning his explanation of why he did not stop and render aid to the people in the van that was transporting the dying victim. The prosecutor did not reiterate the impeaching evidence during his closing argument. We hold that the testimony of Daniel Hernandez had no effect on Appellant's defense, and that the evidence was otherwise overwhelming to support Appellant's conviction. Therefore, we conclude, beyond a reasonable doubt, that the impeachment evidence was harmless. Point of error number one is overruled.
In his second point of error, Appellant contends the court erred when it denied him the opportunity to offer evidence to explain the reason that he left the country after he was charged with murder. Through direct examination of their witnesses and cross-examination of defense witnesses, the State presented evidence that Appellant left town immediately after the stabbing occurred. Appellant argues the State implied that Appellant left the country only because he knew that he had committed murder and that he feared prosecution and incarceration. Appellant points out that, in its final argument, the prosecutor stated:
Ask yourself this. If he was not guilty, if he did not commit a vicious act of murder, why did he leave that scene and go to the airport in Dallas/Ft. Worth and catch a flight to Mexico? Is that the act of a man who has just killed someone in self defense? It is not.
He fled on June the 18th. He was returned to Palestine on September 15th under arrest. He did not come back to turn himself in. He did not go up to the border patrol and say, hey, I am wanted in Palestine. Hey, I want to turn myself in. He was not coming to Palestine to turn himself in either.
In a hearing outside the jury's presence, Appellant testified that he had intended to go to the police on June 18, 1989, but instead fled to Mexico because he was afraid of the Vega family and the law enforcement officials in Palestine. He argues that Appellant's brother was killed by Palestine police officers on the same day that Appellant stabbed the deceased.
After Appellant testified about his reasons for going to Mexico, the court made the following ruling:
I will permit him to state that he was afraid to go to the police because he was afraid that they would hurt him. I would not permit him to say what that fear was based on, if you want to go that far and elicit it.
In other words, if he just said "afraid" then that might create the impression that he was afraid of prosecution. But I will permit him to tell the jury he was afraid of the police. He was afraidrather than just getting prosecutedthat he was going to get hurt by the police, if you want to go that far.
We hold that the court's ruling was proper. The need to develop all facts in an adversarial system of criminal justice is fundamental and comprehensive. United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). Every defendant has a right to present his defensive theory and testimony. Coleman v. State, 545 S.W.2d 831 (Tex.Cr.App.1977); Ginther v. State, 706 S.W.2d 115, 119 (Tex.App.Houston [1st Dist.] 1986, writ ref'd). Exclusion of testimony which is crucial to an accused's defense denies his constitutional right to present evidence in support of his defense. United States Constitution Amend. 14; Texas Constitution Art. I, § 10; Braswell v. Wainwright, 463 F.2d 1148 (5th Cir.1972). However, the court properly excluded the evidence offered by Appellant in this case because it concluded that the evidence was hearsay. Tex.R.Crim.Evid. 802. We cannot find any evidence in the record to support Appellant's allegations that his brother was killed by the Palestine police, or the circumstances of his brother's death, or the time of his brother's death; therefore, we cannot tell from the record whether Appellant's brother died prior to Appellant's flight to Mexico. *494 We also are concerned about Appellant's argument that the court's failure to allow such evidence denied him a defensive theory. If such evidence had been admitted, the evidence would only have shown the reason that Appellant did not surrender to the police. Accordingly, we hold that the trial court did not abuse its discretion and overrule Appellant's second point of error.
In his third and fourth points of error, Appellant contends that the trial court erred when it allowed the State to improperly impeach Appellant with Appellant's acts of misconduct in Mexico. On direct examination, Appellant was questioned by his defense counsel and stated:
Q: Have you ever had any other type of problems with the law?
A: No, sir.
Q: Never been arrested here in the State of Texas?
A: No.
Under cross-examination, Appellant had stated that his full name was Mario Quiroz Hernandez and that he came from Villa Hidalgo in San Luis Potosi. Later, the following occurred:
Q: [BY THE STATE] Now, you told Mr. Van Meter you have never been in trouble?
A: [APPELLANT] Yes.
Q: That's not true now, is it?
A: Here in United States and everywhere elseI have been in trouble nowhere.
Q: Well, Mr. Hernandezisn't it a fact that you, Mario Hernandez QuirozQ-U-I-R-O-Z are wanted for the murder of
MR. VAN METER: I want to object to this because I don't see the proper predicate for the introduction of any of this or for the testimony.
THE COURT: Objection overruled.
Q: [STATE]wanted for the murder of Santiago Escalomte Torres in the village of Villa Hidalgo, San Luis Potosi? Isn't that a fact?
A: No, sir.
Q: you're not saying that you're not wanted for that murder down there, are you?
A: No sir.
Q: In fact you know you are, don't you?
A: Yes, sir. Because Mr. Van Meter told me here a couple of weeks ago.
Later, on re-direct by defense counsel:
Q: [The Prosecutor] has talked about you being wanted in Mexico. Has anybody ever arrested you for that?
A: No, sir.
Appellant complains that the charge against him in Mexico was not a final conviction, therefore, the State's attempt to impeach Appellant was in violation of Rule 609 of the Texas Rules of Criminal Evidence. We do not agree.
When a witness makes a blanket statement about his past conduct, intending to mislead the jury about prior arrests, convictions, charges, or trouble, the witness may be impeached by prior acts of misconduct. Prescott v. State, 744 S.W.2d 128, 131 (Tex. Cr.App.1988); Ramirez v. State, 802 S.W.2d 674 (Tex.Cr.App.1990); and Bell v. State, 620 S.W.2d 116, 125-26 (Tex.1980).
As stated in Prescott:
[I]t is well settled that "an accused puts his character for veracity (as opposed to his moral character) in issue by merely taking the stand, and thus he may be impeached in the same manner as any other witness." Hammett v. State, 713 S.W.2d 102, 105 (Tex.Cr.App.1986). As with any other witness, an accused cannot be impeached by a prior offense with which he has been charged unless the charges resulted in a final conviction for either a felony offense or an offense involving moral turpitude, neither of which is too remote. Ochoa v. State, 481 S.W.2d 847, 850 (Tex.Cr.App.1972). An exception to this general rule arises when a witness, during direct examination, leaves a false impression as to the extent of either his prior (1) arrests (2) convictions (3) charges or (4) "trouble" with the police.
Prescott, 744 S.W.2d at 131. Contrary to Appellant's contention, "charges" as well as *495 "arrests" are included as exceptions to the general rule.
In Alexander v. State, 476 S.W.2d 10 (Tex.Cr.App.1972), the defendant was allowed to be impeached when he testified on direct examination that he had "not been in trouble before." This is almost verbatim the statement that Appellant made. Appellant created a false impression about his prior involvement with the law by stating on direct examination that he had not had any "problems" with the law, and by stating, "I have been in trouble nowhere." Appellant opened the door for the State to inquire into any pending criminal charges against Appellant in Mexico. Once Appellant opened the door to other charges pending against him, the State properly inquired about extraneous offenses to correct the false impression that Appellant had created. Points of error three and four are overruled.
In his fifth point of error, Appellant maintains that the trial court erred when it allowed reputation witnesses called by the defense to be cross-examined by "have you heard" questions concerning the murder charges that were pending against Appellant in Mexico. At the punishment stage of the trial, Appellant called three reputation witnesses; Grady Jeanes, Ignacio Vigil, and Travis Henderson. All three witnesses stated that Appellant's reputation for being a peaceable and law abiding citizen was good. On cross-examination, the State asked all three witnesses whether they had heard that Mario Hernandez had been accused of murdering an individual in Villa Hidalgo, San Luis Potosi, Mexico. Appellant objected.
Appellant claims there is no evidence before this Court to validate the State's claim that he is the same person who was named in the warrant in Mexico. He contends that the State failed to provide to the trial court a valid, certified copy of any warrant naming Appellant, and further failed to connect Appellant to the warrant by any identifying marks, photographs, or witness testimony. Appellant further asserts that the State's persistence in bringing such evidence before the jury was clearly calculated to influence the minds of the jury against Appellant. Rogers v. State, 725 S.W.2d 350 (Tex.App. Houston [1st Dist.] 1987, no pet.). Appellant argues that he was deprived of his right to fundamental fairness and due process of law by the State's actions. Further, he argues that the cumulative effect of the State's line of questioning was so extensive that, even if Appellant had properly preserved his objection on each occasion concerning the murder warrant, it would have been impossible for the jury to properly reach a verdict. We do not agree.
"It is axiomatic that when the accused places his reputation in issue through the testimony of a witness, the witness can be impeached on cross-examination with `have you heard' questions." Rutledge v. State, 749 S.W.2d 50, 52-53 (Tex.Cr.App. 1988). In addition, the record reflects that Appellant did not object when the State asked the "have you heard questions of Vigil and Henderson during their cross-examinations. Appellant only objected when Jeanes was asked:
[H]ave you heard that the defendant is accused of murdering another man in Mexico...?
[H]ave you heard that the defendant, Mario Hernandez, is accused of murdering a man at Villa Hidalgo, San Luis Potosi, Mexico ...?
A party must object each time inadmissible evidence is offered, and any error in admission of evidence is cured where the same evidence comes in through another witness without objection. Ethington v. State, 819 S.W.2d 854, 858 (Tex.Cr.App.1991); Hudson v. State, 675 S.W.2d 507, 511 (Tex.Cr.App. 1984). By failing to object to the prosecutor's questions that were directed to Vigil and Henderson, Appellant has waived any error. Point five is overruled.
In his sixth point of error, Appellant asserts that the trial court erred when it allowed the State to place on display Appellant's two brothers, Daniel and Jeronimo Hernandez. Appellant argues that neither Daniel nor Jeronimo were convicted of any offense, and yet the court allowed the State to put them on display before the jury. After Appellant's identity became an issue, the State had three of its witnesses, Jose Vega, *496 Maria Estrada, and Frederico Salinas, identify Appellant and his brothers. Appellant argues that this procedure "certainly cast [Appellant's brothers] in a criminal light to the jury." By calling Daniel and Jeronimo into the courtroom and displaying them before the jury, the State made it appear as though the two men had been charged with a criminal offense; thereby compromising the credibility of their testimony which was crucial to Appellant's defense. However, Appellant cites no authority to support his argument that the procedure utilized was error. We conclude that the judge did not abuse his discretion in allowing the identification procedure. Point of error six is overruled.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435366/ | 897 S.W.2d 351 (1995)
Cameron Todd WILLINGHAM, Appellant,
v.
The STATE of Texas, Appellee.
No. 71544.
Court of Criminal Appeals of Texas, En Banc.
March 22, 1995.
*353 David Martin, Greg White, Waco, for appellant.
*354 Patrick C. Batchelor, Dist. Atty., Corsicana, Jim Vollers, Austin, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
WHITE, Judge.
Appellant Cameron Todd Willingham was convicted on August 21, 1992 of capital murder by murdering more than one person during the same criminal transaction. Tex. Penal Code Ann. § 19.03(a)(6)(A). Two special issues were submitted to the jury under Tex.Code Crim. Proc. Ann. art. 37.071 § 2(b)(1) and § 2(e), and following the jury's verdict of guilty, the trial court sentenced appellant to death. Direct appeal to this Court is automatic. Tex.Code Crim.Proc. Ann. art. 37.071 § 2(h). We will affirm.
Appellant brings four points of error for this Court to review. In point of error number one, appellant contends the trial court erred in refusing to grant his Motion for Change of Venue, in light of inflammatory statements made by the Navarro County District Attorney. Appellant asserts in his second point of error that the trial court erred in refusing to admit evidence offered by the defense to impeach the testimony of a witness for the State. In his third point of error, appellant maintains the trial court erred in its charge to the jury during the punishment phase of the trial by failing to instruct the jury on the effect of parole, as parole would qualify as a "mitigating circumstance" under the facts of this case. Appellant contends, in point of error number four, that the evidence is insufficient to support the jury's answers to the special issues submitted in the punishment phase of the trial, particularly: (a) that the evidence is insufficient to support the finding that appellant is a continuing threat to society, and (b) that the evidence is insufficient to support a finding that mitigating circumstances would not warrant a life sentence. Appellant does not challenge the sufficiency of the evidence to support his conviction; therefore, the facts of the offense will be discussed only in reference to the error alleged in point of error number four.
Appellant contends in his fourth point of error that the evidence is insufficient to support the jury's answers to the special issues submitted in the punishment phase of the trial. Although appellant does not argue that the evidence was insufficient to support his conviction for capital murder, a review of the facts and other evidence underlying his conviction is necessary, as this is the information which the jury considered when answering the special issues in the punishment phase of the trial. James v. State, 772 S.W.2d 84, 88 (Tex.Cr.App.1989), 493 U.S. 885, 110 S. Ct. 225, 107 L. Ed. 2d 178 (vacated and remanded on other issue); James v. State, 805 S.W.2d 415 (Tex.Cr.App.1990) (on remand); cert. denied, 501 U.S. 1259, 111 S. Ct. 2915, 115 L. Ed. 2d 1078 (1991).
The evidence adduced at trial was that on December 23, 1991, appellant poured a combustible liquid on the floor throughout his home and intentionally set the house on fire, resulting in the death of his three children. Amber, age two, and twins Karmon and Kameron, age 1, died of acute carbon monoxide poisoning as a result of smoke inhalation, according to autopsy reports. Neighbors of appellant testified that as the house began smouldering, appellant was "crouched down" in the front yard, and despite the neighbors' pleas, refused to go into the house in any attempt to rescue the children. An expert witness for the State testified that the floors, front threshold, and front concrete porch were burned, which only occurs when an accelerant has been used to purposely burn these areas. This witness further testified that this igniting of the floors and thresholds is typically employed to impede firemen in their rescue attempts.
The testimony at trial demonstrates that appellant neither showed remorse for his actions nor grieved the loss of his three children. Appellant's neighbors testified that when the fire "blew out" the windows, appellant "hollered about his car" and ran to move it away from the fire to avoid its being damaged. A fire fighter also testified that appellant was upset that his dart board was burned. One of appellant's neighbors testified that the morning following the house *355 fire, Christmas Eve, appellant and his wife were at the burned house going through the debris while playing music and laughing.
At the punishment phase of trial, testimony was presented that appellant has a history of violence. He has been convicted of numerous felonies and misdemeanors, both as an adult and as a juvenile, and attempts at various forms of rehabilitation have proven unsuccessful.[1]
The jury also heard evidence of appellant's character. Witnesses testified that appellant was verbally and physically abusive toward his family, and that at one time he beat his pregnant wife in an effort to cause a miscarriage. A friend of appellant's testified that appellant once bragged about brutally killing a dog. In fact, appellant openly admitted to a fellow inmate that he purposely started this fire to conceal evidence that the children had recently been abused.
Dr. James Grigson testified for the State at punishment. According to his testimony, appellant fits the profile of an extremely severe sociopath whose conduct becomes more violent over time, and who lacks a conscience as to his behavior. Grigson explained that a person with this degree of sociopathy commonly has no regard for other people's property or for other human beings. He expressed his opinion that an individual demonstrating this type of behavior can not be rehabilitated in any manner, and that such a person certainly poses a continuing threat to society.
Appellant first contends the evidence is insufficient to support the jury's finding that he is a continuing threat to society. In determining whether evidence is sufficient to support a jury's answer to this special issue presented in the punishment phase of a capital murder trial, this Court views the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the elements of Tex.Code Crim.Proc.Ann. art. 37.071 § 2(b)(1) beyond a reasonable doubt.[2]Rivera v. State, 808 S.W.2d 80, 94 (Tex.Cr.App. 1991), cert. denied, 502 U.S. 902, 112 S. Ct. 279, 116 L. Ed. 2d 231 (1991); Hathorn v. State, 848 S.W.2d 101, 115 (Tex.Cr.App.1992), cert. denied, ___ U.S. ___, 113 S. Ct. 3062, 125 L. Ed. 2d 744 (1993); Willis v. State, 785 S.W.2d 378, 386 (Tex.Cr.App.1990), cert. denied, 498 U.S. 908, 111 S. Ct. 279, 112 L. Ed. 2d 234 (1990). Any evidence adduced *356 at the guilt/innocence and punishment phases of trial can be used by the jury when considering future dangerousness. Willis v. State, 785 S.W.2d at 386; Valdez v. State, 776 S.W.2d 162, 166-67 (Tex.Cr.App.1989), cert. denied, 495 U.S. 963, 110 S. Ct. 2575, 109 L. Ed. 2d 757 (1990); Mitchell v. State, 650 S.W.2d 801, 812 (Tex.Cr.App.1983), cert. denied, 464 U.S. 1073, 104 S. Ct. 985, 79 L. Ed. 2d 221 (1984). Often, the circumstances of the offense alone are enough to sustain an affirmative answer to this special issue. Willis at 386; Sosa v. State, 769 S.W.2d 909, 912 (Tex.Cr.App.1989); Moreno v. State, 721 S.W.2d 295, 302 (Tex.Cr.App. 1986). A defendant's prior criminal record is also relevant to future dangerousness. Willis at 387; Valdez v. State, 776 S.W.2d at 167; Keeton v. State, 724 S.W.2d 58, 61 (Tex.Cr. App.1987).
The facts of the offense are heinous and exhibit complete disregard for human life. Appellant saturated his house with a combustible liquid, ignited the house, and left his three children in the burning house. We believe a rational trier of fact could have answered "yes" to the second special issue based solely on the circumstances of the offense. Willis at 386; Sosa v. State, 769 S.W.2d at 912; Moreno v. State, 721 S.W.2d at 302.
Criminal history and reputation evidence are also probative of future dangerousness. Willis at 387; Valdez at 167; Keeton v. State, 724 S.W.2d at 61; James v. State, 772 S.W.2d at 90. The fact that appellant has been convicted of numerous offenses and has failed all attempts of rehabilitation, as well as having committed other violent acts apart from his criminal convictions, are relevant considerations the jury could have used to find that appellant would present a continuing threat to society.
Having reviewed all the evidence in the light most favorable to the verdict, including trial evidence, circumstances of the offense, and appellant's extensive criminal history, we find sufficient evidence in the record for a rational trier of fact to have concluded beyond a reasonable doubt that there was a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society.
Appellant also contends in point of error four that the evidence is insufficient to support a finding that mitigating circumstances would not warrant a life sentence. See Tex.Code Crim.Proc.Ann. art. 37.071 § 2(e). Appellant fails to point to any mitigating factors which would persuade a jury to answer this special issue in his favor and render a life sentence. Likewise, no mitigating circumstances are apparent from a thorough reading of the record. No authorities are cited and no argument is made under this point of error; therefore, nothing is presented for review on this point. Tex.R.App. Proc. 74(f); Woods v. State, 569 S.W.2d 901, 905 (Tex.Cr.App.1978), cert. denied, 453 U.S. 913, 101 S. Ct. 3145, 69 L. Ed. 2d 995 (1981); Byrom v. State, 528 S.W.2d 224, 226 (Tex.Cr. App.1975). Accordingly, appellant's fourth point of error is overruled.
Appellant maintains in point of error number one that the trial court abused its discretion in refusing to grant appellant's motion for change of venue. Appellant argues that, especially in light of inflammatory statements made by the Navarro County District Attorney, he could not receive a fair trial.
The trial court conducted a hearing on the motion to change venue on August 3, 1992. Testifying for appellant were Stacy Willingham, appellant's wife; and Tracy and Ronnie Kuykendall, Stacy Willingham's brothers. These witnesses testified that it was their opinion that appellant could not receive a fair trial in Navarro County due to the media coverage, which included a televised statement made by the district attorney. Appellant introduced into evidence various newspaper articles pertaining to the events of the fire. Also introduced was a video tape of the criminal district attorney, in which he commented that the possible motive for appellant's commission of this offense was that "the children were interfering with [appellant's] beer drinking and dart throwing."
The State then offered the testimony of three witnesses: J.D. Kuykendall, appellant's father-in-law; Mildred Kuykendall, appellant's *357 mother-in-law; and Jim Gill, an attorney from Corsicana. These witnesses testified that they believed the affiants supporting the Motion to Change Venue were not credible due to their lack of knowledge to support their statements. They further testified that appellant's witnesses possessed special knowledge of the defendant, as a result of their relationship with the defendant, which rendered their testimony less than credible. These witnesses also testified that they believed appellant could obtain a fair and impartial trial in Navarro County.
The trial court denied appellant's motion for a change of venue, but the judge stated, "... with reference to the Change of Venue: I realize that it may crop back up, you know, sometime [sic] down the road; and if it does, we will handle it as it comes up." Neither during nor following voir dire of the jury panel did Appellant reurge his motion to change venue.
A change of venue is proper and consistent with principles of due process when a defendant demonstrates his inability to obtain an impartial jury or a fair trial at the place of venue. Groppi v. Wisconsin, 400 U.S. 505, 510-11, 91 S. Ct. 490, 493, 27 L. Ed. 2d 571 (1971); Hathorn v. State, 848 S.W.2d at 109; see Henley v. State, 576 S.W.2d 66, 69 (Tex.Cr.App.1978). A change of venue is the remedy to jury prejudice resulting from extensive, widespread inflammatory news coverage. Beets v. State, 767 S.W.2d 711 (Tex.Cr.App.1987), cert. denied, 492 U.S. 912, 109 S. Ct. 3272, 106 L. Ed. 2d 579 (1989); Henley v. State, 576 S.W.2d at 71.
The mere fact that a crime was publicized in the news media does not establish prejudice or require a change of venue per se. Hathorn at 109; Beets v. State, 767 S.W.2d at 743; see Johnson v. Texas, 773 S.W.2d 322, 324 (Tex.Cr.App.1989), aff'd on other grounds, ___ U.S. ___, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993). Rather, the test is "whether outside influences affecting the community's climate of opinion as to a defendant are inherently suspect." Hathorn at 109; Beets, 767 S.W.2d at 742; Henley, 576 S.W.2d at 72. In order to prevail in a motion to change venue, a defendant must prove that publicity about the case is pervasive, prejudicial and inflammatory. A defendant must demonstrate an "actual, identifiable prejudice attributable to pretrial publicity on the part of the community from which members of the jury will come." DeBlanc v. State, 799 S.W.2d 701, 704 (Tex.Cr.App.1990), cert. denied, 501 U.S. 1259, 111 S. Ct. 2912, 115 L. Ed. 2d 1075 (1991); Beets at 743; Faulder v. State, 745 S.W.2d 327, 338 (Tex. Cr.App.1987).
When a trial court is presented with a motion to change venue, the trial judge must act as fact-finder with regard to the issue presented. Tex.Code Crim.Proc. Ann. Art 31.04; see Cook v. State, 667 S.W.2d 520, 522 (Tex.Cr.App.1984). The trial judge is in a better position than this Court to resolve such issues as a result of his ability to observe the demeanor of witnesses and scrutinize their veracity. Consequently, we will affirm the trial court's judgment absent evidence of an abuse of discretion. Hathorn at 109; Aranda v. State, 736 S.W.2d 702, 705 (Tex.Cr.App.1987), cert. denied, 487 U.S. 1241, 108 S. Ct. 2916, 101 L. Ed. 2d 947 (1988); Freeman v. State, 556 S.W.2d 287, 297 (Tex. Cr.App.1977), cert. denied, 434 U.S. 1088, 98 S. Ct. 1284, 55 L. Ed. 2d 794 (1978).
The newspaper articles offered by appellant demonstrated nothing more than accurate reporting of a newsworthy occurrence in Navarro County. See Johnson v. State, 773 S.W.2d at 325. Although the statement made by the district attorney was televised, the record does not demonstrate that either the newspaper or television reporting was widespread. Nothing in the record indicates an identifiable prejudice existed in the community, nor does it show that the community climate of opinion was inherently suspect.[3]
*358 Appellant has failed to prove that these articles and televised statement amounted to pervasive, prejudicial, or inflammatory publicity. After reviewing the record, we conclude that the trial court did not abuse its discretion in overruling appellant's motion for change of venue and proceeding with the trial in Navarro County. Appellant's first point of error is overruled.
In his second point of error, appellant argues that the trial court erred in refusing to admit evidence offered by the defense to impeach the testimony of a witness for the State. Johnny Webb, a State's witness, testified that appellant confessed to him that he committed the offense; that appellant explained in detail how he poured lighter fluid throughout the house, purposely burned one of the children, set the house on fire, fled, and refused to go back into the house to rescue the children.
During appellant's cross-examination of Webb, no inquiry was made concerning Webb's alleged interest in the case, and Webb was not afforded an opportunity to explain or deny the significance of any such circumstances. Appellant then offered the testimony of James McNally for the purpose of impeaching the State's witness Webb. The Court sustained the State's objection to this testimony. In a bill of exceptions, defense witness McNally testified that Webb had at one time stated he had been threatened by prison deputies, and that "he was hoping to get outget time cut or something was supposed to happen with his lawyer in a couple of months." When asked whether Webb was threatened in connection with obtaining a statement on the case at bar, no clear answer was given. Appellant urged that this testimony was admissible to show motive of the State's witness to perjure himself. The State reurged its objection and the trial court sustained the objection.
Impeachment of a witness means adducing proof that such witness is unworthy of belief or credit. Ransom v. State, 789 S.W.2d 572, 587 (Tex.Cr.App.1989); cert. denied, 497 U.S. 1010, 110 S. Ct. 3255, 111 L. Ed. 2d 765 (1990); Jackson v. State, 516 S.W.2d 167, 175 (Tex.Cr.App.1974). The credibility of a witness may be attacked, inter alia, by evidence that the witness is slanting his testimony against or in favor of a party as a result of personal interest or bias in the cause. Tex.R.Crim. Evid. 612(b).
What first must be established is a specific connection between the witness' testimony and the cause, disclosing an actual bias or motive, see London v. State, 739 S.W.2d 842, 846 (Tex.Cr.App.1987), and this nexus must be demonstrated by laying the proper foundation. To lay a proper predicate for impeachment the witness should be asked about any possible interest or bias he may have before there is an attempt to prove interest or bias otherwise. See Green v. State, 566 S.W.2d at 88. The witness must first be informed as to the circumstances supporting a claim of bias or interest and must be given an opportunity to explain or deny such circumstances. Tex.R.Crim.Evid. 612(b); Green v. State, 566 S.W.2d 578, 587-88 (Tex.Cr.App.1978).
No nexus was established between the admission made by appellant to Webb and Webb's alleged hopes of early release. Furthermore, trial counsel failed to lay a proper foundation upon which to impeach the testimony of the State's witness Johnny Webb. When a party does not lay the proper predicate for impeaching a witness, it is not error to refuse to allow the admission of such testimony. See Moore v. State, 652 S.W.2d 411, 413 (Tex.Cr.App.1983). Appellant's second point of error is overruled.
Appellant contends in point of error number three that the trial court erred in its charge to the jury during the punishment phase of the trial by failing to instruct the jury on the effect of parole, as parole would qualify as a "mitigating circumstance" under the facts of this case. Appellant posits that the jury discretion was impermissibly channeled to a sentence of death, in violation of the Eighth Amendment. Appellant cites Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964, 57 L. Ed. 2d 973 (1978), which holds that a jury may not be "... precluded from considering, as a mitigating factor, any *359 aspect of the defendant's character or record, and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death," in support of his argument that appellant did not receive individualized treatment.
The concept of parole eligibility bears no relationship to the defendant's character or record, or circumstances of the offense. Smith v. State, 898 S.W.2d 838, 853 (Tex.Cr.App.1995), and cases cited therein. Rather, mitigating evidence is defined as any evidence that a juror might regard as reducing the defendant's moral blameworthiness. Tex.Code Crim.Proc.Ann. art. 37.071 § 2(f)(4). For purposes of the Eighth Amendment, mitigating circumstances are those circumstances of "the defendant's background and character [which will support a] belief, long held by this society, that defendants who commit criminal acts that are attributable to [such circumstances] may be less culpable than defendants who have no such excuse." Penry v. Lynaugh, 492 U.S. 302, 319, 109 S. Ct. 2934, 2947, 106 L. Ed. 2d 256 (1989); Lewis v. State, 815 S.W.2d 560, 567 (Tex.Cr.App.1991), cert. denied, 503 U.S. 920, 112 S. Ct. 1296, 117 L. Ed. 2d 519 (1992). Such evidence may be considered by the jury when deliberating at punishment. Penry v. Lynaugh, 492 U.S. at 328, 109 S. Ct. at 2951.
Thus, we hold the matter of parole eligibility is not a proper consideration for the jury's deliberations on punishment. Smith, 898 S.W.2d at 853-54. Accordingly, we hold the trial court's refusal to charge the jury on the effect of parole was proper. Appellant's third point of error is overruled.
The judgment and sentence of the trial court are affirmed.
CLINTON, Judge, concurring.
In his third point of error appellant argues that the trial court erred in failing to charge the jury at the punishment phase of trial that, if sentenced to life imprisonment, he would have to serve a minimum of 35 years in the penitentiary before becoming eligible for parole. He seems to argue that this information in and of itself constitutes mitigating evidence in contemplation of the Eighth Amendment to the United States Constitution. The majority rejects this argument on the basis of its naked conclusion that "parole eligibility bears no relationship to the defendant's character or record, or the circumstances of the offense." At 859. I agree, at least, that appellant fails to establish in his brief how minimum parole eligibility constitutes constitutionally mitigating evidence in this case.
In my view, minimum parole eligibility is constitutionally mitigating only to the extent that, in combination with other evidence, it tends to show that the capital defendant will not "commit criminal acts of violence that would pose a continuing threat to society." Article 37.071, § 2(b)(1), V.A.C.C.P. See Smith v. State, 898 S.W.2d 838 (Tex.Cr.App. 1995) (Clinton, J., dissenting, 898 S.W.2d at 864 & 867-68; Maloney, J., dissenting, 898 S.W.2d at 882-84). It has no intrinsically mitigating significance otherwise. Id., (Maloney, dissenting, 898 S.W.2d at 874-75). Appellant does not argue that he put on evidence to show, e.g., that for the duration of his lengthy incarceration he will pose no threat to the prison population or that by the time he is eligible for parole he will not pose a threat to any facet of society. Compare Matson v. State, 819 S.W.2d 839 (Tex.Cr. App.1991). In combination with such evidence, information about minimum parole eligibility is "indisputably relevant" to the issue of future dangerousness. Had appellant adduced such evidence, to prevent him from also informing the jury of his minimum parole eligibility date would likely have violated the Eighth Amendment in much the same way it would violate due process. Smith v. State, supra (Clinton, J., dissenting).
Because he did not, however, I join the judgment of the Court. I do not join its opinion.
MALONEY, J., joins this opinion.
BAIRD, J., joins this opinion for the reasons stated in Matson v. State, 819 S.W.2d *360 839 (Tex.Cr.App.1991), but for the reasons stated in his concurring opinion in Smith v. State, 898 S.W.2d 838 (Tex.Cr.App.1995) (Baird, J., concurring), specifically does not join that portion of the opinion referring to the dissenting opinions in Smith, 898 S.W.2d 838 at 857 and 872 (Clinton, J., dissenting and Maloney, J., dissenting.).
OVERSTREET, Judge, concurring.
In point number three, appellant alleges, "The Trial Court erred in its charge to the jury during the punishment phase of the trial by failing to instruct the jury on the effect of parole, as parole would qualify as a `mitigating circumstance' under the facts of this case." Appellant's argument in support of that point focuses upon the second special issue asking whether, after consideration of all of the mitigating evidence, there is a good reason for the defendant to be sentenced to life imprisonment rather than death. He notes that the United States Supreme Court has grappled with the proper role that the State may play in guiding juries in the assessment of punishment versus an improper restriction of the sentencing authority's ability to exhibit mercy. He suggests that since the State must restrict the conduct for which the defendant becomes eligible for death, but must not restrict the sentencer in consideration of factors that might weigh against imposing a death sentence, the trial court's absolute refusal to give the jury information about parole amounted to an instruction that the jury may not, or should not, consider it. Appellant insists that such impermissibly channeled the jury's discretion to a sentence of death in violation of the Eighth Amendment of the United States Constitution.
As appellant's claim avers error in terms of instructions on parole being mitigating evidence, I agree with the majority's conclusion that the trial court's refusal to charge the jury on the effect of parole was proper because I do not believe that such evidence is necessarily within the ambit of Penry. I also point out that this Court's previous caselaw has held that a trial court properly refuses to instruct the jury at the punishment stage of a capital murder trial on the parole laws in Texas. Elliott v. State, 858 S.W.2d 478, 490 (Tex.Cr.App.1993), cert. denied, ___ U.S. ___, 114 S. Ct. 563, 126 L. Ed. 2d 463 (1993); Boyd v. State, 811 S.W.2d 105, 121 (Tex.Cr. App.1991), cert. denied, 502 U.S. 971, 112 S. Ct. 448, 116 L. Ed. 2d 466 (1991); Knox v. State, 744 S.W.2d 53, 62-64 (Tex.Cr.App. 1987), cert. denied, 486 U.S. 1061, 108 S. Ct. 2834, 100 L. Ed. 2d 934 (1988); Andrade v. State, 700 S.W.2d 585, 587-88 (Tex.Cr.App. 1985), cert. denied, 475 U.S. 1112, 106 S. Ct. 1524, 89 L. Ed. 2d 921 (1986).
Nevertheless, I point out that in Simmons v. South Carolina, ___ U.S. ___, 114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994) the U.S. Supreme Court has recently found denial of the constitutional right to due process and therefore reversible error in a trial court refusing to inform a jury of the defendant's parole ineligibility. While we have initially interpreted Simmons' application to our Texas capital punishment procedures, see Smith v. State, 898 S.W.2d 838 (Tex.Cr.App.1995), I cannot agree with the majority's broad blanket statement that "the matter of parole eligibility is not a proper consideration for the jury's deliberations on punishment." Willingham v. State, 897 S.W.2d 351, 359 (Tex.Cr.App.1995). Pursuant to Simmons, and the Due Process Clause of the U.S. Constitution, there are circumstances in which it may be appropriate and/or necessary to inform the jury of parole law in capital punishment situations. I also note that in the case at bar, during punishment deliberations the jury sent out a note asking about what a life sentence means in terms of years and about whether parole could be denied.
Article 37.07, § 4, V.A.C.C.P., enacted after an amendment to the Texas Constitution, mandates that the trial court, i.e. the judicial department, include instructions on parole law in non-capital felonies; thus, jury instructions on parole law are now constitutionally permissible and are not in violation of separation of powers principles. I also note that while Art. 37.07, § 4, V.A.C.C.P. provides for the jury to be informed of various matters as to parole eligibility in non-capital punishment proceedings, it does not prohibit *361 such information from being provided to juries in capital proceedings. I also do not believe that the Legislature's silence in not amending Article 37.071, V.A.C.C.P. to provide for parole law instructions in capital proceedings should necessarily be construed to mean that the Legislature affirmatively meant that such instructions should not be given in capital cases. I am unwilling to conclude that such silence absolutely indicates that the legislative body of Texas reviewed our decisions in caselaw and somehow affirmatively decided that this Court's opinions on the issue represented its intentions.
Because I agree that information about the effect of parole is not necessarily within the ambit of Penry mitigating evidence, I agree with the majority's disposition of point of error number three. I therefore concur only in the results reached.
NOTES
[1] Maria Tassie Malowney, an Assistant District Attorney for Carter County, Oklahoma, listed the felonies and misdemeanors with which appellant has been charged and/or convicted. She explained that the synopsis of the juvenile offenses cannot be released, but that appellant has been involved in criminal activity since he was fifteen or sixteen years of age. Malowney testified that the felonies of which appellant was convicted are as follows:
1) May 1986: Second Degree Burglary
Punishment: probation, placed in a Nonviolent Intermediate Offender Act
2) April 1987: Grand Larceny
Punishment: two years probation and 60 days in the county jail
Additionally, misdemeanors for which appellant was convicted are as follows:
1) April 1986: Carrying a Concealed Weapon and Public Intoxication
Punishment: 4 days in the county jail and ordered to pay fine and costs
2) May 1986: Entering a Building with Unlawful Intent and Contributing to the Delinquency of a Minor (supplying paint for sniffing to a twelve-year-old child)
Punishment: ordered to pay restitution, 15 days in the county jail and six months probation, running concurrently
3) November 1986: Two counts of Contributing to the Delinquency of a Minor (supplying paint to a twelve-year-old child and an eleven-year-old child)
Punishment: 60 days in the county jail
4) November 1988: Driving Under the Influence of Liquor and/or Drugs (substance was paint)
Punishment: One year probation on the condition he check himself into an in-patient rehabilitation program for paint abuse.
5) February 1989: Shoplifting
Punishment: Probation orders from April 1987 Grand Larceny conviction and November 1988 DUI conviction vacated, sent to a special boot camp program, then given a two year sentence with all but 74 days suspended on the condition he 1) complete a substance abuse treatment program, 2) attend at least one AA or NA meeting per week, and 3) take part in a urinalysis every week and a half.
[2] Article 37.071 § 2(b)(1) provides that:
On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
(1) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.
[3] Of the twelve jurors selected, four (4) remembered reading "something" in the newspapers; three (3) had not heard anything or read anything about the case; two (2) reported that they had vaguely heard talk about the case; one (1) recalled hearing "the basics" of the case on television; one (1) remembered reading about the fire in the paper and knew that the fire was set; and one (1) believed she had heard what everyone in Corsicana had heard.
Furthermore, all of these jurors testified that they could set aside anything they had heard about the case and judge the case solely upon the evidence heard at trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435368/ | 897 S.W.2d 562 (1995)
320 Ark. 444
CITY OF LITTLE ROCK, Appellant,
v.
Kevin Scott CAMERON, Appellee.
No. 94-1334.
Supreme Court of Arkansas.
May 8, 1995.
*563 Thomas M. Carpenter, Anthony W. Black, Little Rock, for appellant.
Sarah Presson, Julia L. Busfield, Little Rock, for appellee.
BROWN, Justice.
This case involves an appeal from a grant of a directed verdict in favor of the appellee, Kevin Scott Cameron. The City of Little Rock, as appellant, contends that the trial court erred in its ruling. We do not agree and affirm.
At approximately midnight on March 5, 1992, Cameron left the Bobbisox Lounge at the Holiday Inn by the Little Rock Airport. He had been drinking alcoholic beverages. He went to a Waffle House across the street and left there at about 2:00 a.m. He drove into downtown Little Rock. It was raining. At the intersection of West Markham and McKinley, his car struck a traffic signal pole and destroyed it. The City sued Cameron for negligence and for damages in the amount of $4,562.70 for the destruction of the pole.
At the resulting jury trial, the City called Officer Linda Barron as a witness. Officer Barron testified that she was the investigating officer and that two vehicles were involved in the accident: Cameron's 1987 Ford Taurus and a 1989 G.M.C. pickup driven by Othlea Patterson. Officer Barron testified that she smelled alcohol on Cameron's breath. She stated that Cameron told her that the pickup truck had entered his lane and that he had swerved to miss it and struck the pole. She noted that Cameron's vehicle had hit the pickup but stated that Cameron was unaware of this at the time. No citations were issued to the driver of either vehicle, and the police officer's accident report noted no contributing causes for the wreck.
*564 Officer Roy Howard of the Little Rock Police Department testified that he administered a portable breathalyzer test to Cameron at the scene and that Cameron tested for a blood/alcohol level of .05 percent. He stated that he did not believe that Cameron was "impaired to an extreme point," though he did state he believed that drinking alcoholic beverages does impair one's ability to drive.
The City rested its case after providing proof of its damages. Cameron moved for a directed verdict, and it was granted.
The City urges on appeal that the trial court erred in granting Cameron's motion for directed verdict. In determining the correctness of the trial court's ruling, we view the evidence in the light most favorable to the party against whom the verdict is sought and give it the highest probative value, taking into account all reasonable inferences deducible from it. Bice v. Hartford Acc. & Indem. Co., 300 Ark. 122, 777 S.W.2d 213 (1989). A motion for directed verdict should be granted only if the evidence so viewed would be so insubstantial as to require a jury verdict for the party to be set aside. Id.; Campbell Soup Co. v. Gates, 319 Ark. 54, 889 S.W.2d 750 (1994). Evidence is insubstantial when it is not of sufficient force or character to compel a conclusion one way or the other or if it does not force a conclusion to pass beyond suspicion or conjecture. See Allred v. Demuth, 319 Ark. 62, 890 S.W.2d 578 (1994); Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).
In the case before us, the trial court found that there was insufficient evidence to support a claim of negligence. To establish a prima facie case in tort, a plaintiff must show that damages were sustained, that the defendant was negligent, and that such negligence was a proximate cause of the damages. Arkansas Kraft v. Cottrell, 313 Ark. 465, 855 S.W.2d 333 (1993). We reiterated our definition of negligence in Cottrell:
Negligence is the failure to do something which a reasonably careful person would do. A negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992).
313 Ark. at 470, 855 S.W.2d at 337. While a party can establish negligence by direct or circumstantial evidence, he cannot rely upon inferences based on conjecture or speculation. Id.
The mere fact that Cameron had been drinking alcoholic beverages is not sufficient evidence of negligence, standing alone, for this claim, to withstand a directed verdict. Cameron was not legally intoxicated based on his percentage of blood/alcohol content. See Ark.Code Ann. § 5-65-103(b) (Repl. 1994). But even had he been intoxicated, a distinguished treatise on torts concludes that the fact of intoxication is not negligence in itself, but it must be shown to have caused the actor's behavior to have deviated from that of a reasonable person and to have caused the plaintiff's injuries. See Prosser and Keaton on Torts § 32, pp. 178-179 (5th Ed.1984); see also Restatement (Second) of Torts § 283C, Comment D. In this vein, we have stated that voluntary intoxication may be a factor to be considered by the trier of fact in determining negligence. Jernigan v. Cash, 298 Ark. 347, 767 S.W.2d 517 (1989).
We can readily agree with Officer Howard that drinking alcoholic beverages may impair one's ability to drive. Here, though, there was no evidence that Cameron was intoxicated or otherwise impaired at the time of the accident or that his liquor consumption either evidenced a lack of reasonable care on Cameron's part or caused the wreck in any way. In sum, we agree that the City's proof does not give rise to an inference of negligence but only to conjecture and speculation. See Sanford v. Ziegler, 312 Ark. 524, 851 S.W.2d 418 (1993). The trial court did not err in granting the directed verdict.
Affirmed.
GLAZE and CORBIN, JJ., dissent.
CORBIN, Justice, dissenting.
I dissent.
The case should have been submitted to the jury for decision. The facts of the appellee's *565 drinking mixed with a collision with another vehicle he did not know he hit and his collision with a traffic light pole should have been submitted to the jury to resolve whether he was negligent in the operation of his vehicle. One does not have to be intoxicated under a legal definition of 0.10% before having his mental and reaction time slowed down by the drink. See Stephens v. State, 320 Ark. 426, 898 S.W.2d 435 (1995). When all of this is coupled with rain slicked streets, it would be a proper issue for a jury to draw upon their individual experiences to determine if, under all of these conditions, negligence existed. I would reverse and remand for trial.
GLAZE, J., joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2465162/ | 882 S.W.2d 824 (1994)
Henry J.N. TAUB, Petitioner,
v.
CITY OF DEER PARK, Respondent.
No. D-1589.
Supreme Court of Texas.
Argued January 18, 1994.
Decided June 22, 1994.
Rehearing Overruled September 8, 1994.
*825 Joe G. Roady, Houston, for petitioner.
Marvin B. Peterson, Houston, P.B. Dover, Deer Park, Sheryl Sikes Roper and William A. Olson, Jr., Houston, for respondent.
SPECTOR, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, HIGHTOWER, HECHT, DOGGETT, CORNYN, GAMMAGE and ENOCH, Justices, join.
This case presents two issues involving rights of land ownership: first, whether a city's refusal to rezone property amounts to an unconstitutional taking; and second, whether a landowner is entitled to recover for damages to the remainder of property when the portion taken divides the remainder tract in half. The court of appeals approved the trial court's ruling, which upheld the refusal to rezone and awarded no remainder damages in the condemnation. 1994 WL 394095.[1] We affirm the court of appeals' judgment on the rezoning issue; but on the issue of remainder damages, we conclude that the court of appeals misapplied the law on special benefits. Consequently, we reverse the court of appeals' judgment in part and remand the cause to that court for further consideration.
I.
In 1978, the City of Deer Park filed two eminent domain proceedings on a tract of land owned by Henry J.N. Taub. The City sought 2.4691 acres for street improvements from the southern portion of the tract and another 14.5616 acres to construct drainage ditch structures which would run along the southeastern side of the tract, extend across the tract to the western edge, and then continue along the northwestern section of the tract.
In 1980, Taub filed an application to rezone the southern 69.6684 acres of the parent tract from single-family residential (SF-1) to multi-family residential (MF-1). The northern *826 49.55 acres of the tract had previously been rezoned from SF-1 to Industrial Parks-1.
In meetings before the Zoning and Planning Commission and the City Council, Taub presented evidence that his tract could not be profitably developed for single-family residential use and that there was a demand in Deer Park for multi-family housing. Deer Park residents, as well as city and school officials, strenuously objected to Taub's rezoning proposal. There was testimony that rezoning Taub's tract for multi-family residential use would require new city facilities and personnel; would cause traffic, water, and sewer problems; and would prevent the City from providing adequate fire, police, or school facilities for the project. After considering the evidence, the Zoning and Planning Commission voted unanimously to deny Taub's application. The City Council accepted the recommendation of the Zoning Commission and denied the request.
In the condemnation proceedings, the special commissioners valued the property to be taken at $7,000 per acre, based on single-family residential use. Accordingly, they awarded Taub $18,500 for the street taking and $217,000 for the ditch taking. Taub objected to this valuation and filed a separate suit against the City, asserting that the property taken should be valued on the basis of multi-family rather than single-family zoning. The condemnation actions were transferred to the district court and were later consolidated with Taub's suit.
After a bench trial, the trial court rendered judgment for the City, finding that the City's refusal to rezone was not unreasonable or arbitrary and that there was no damage to the remainder of Taub's land as a result of the taking. The court of appeals affirmed.
II.
Taub argues that the City has effectively taken his property by refusing to rezone it from single-family to multi-family residential use, thus preventing him from profitably developing the property. We disagree.
An act short of actual physical invasion, appropriation, or occupation can amount to a compensable taking when a governmental agency has imposed restrictions that constitute an unreasonable interference with the landowner's right to use and enjoy the property. See City of Austin v. Teague, 570 S.W.2d 389, 393 (Tex.1978); DuPuy v. City of Waco, 396 S.W.2d 103, 108 (Tex.1965); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922), cited in Lucas v. South Carolina Coastal Council, ___ U.S. ___, ___, 112 S. Ct. 2886, 2892, 120 L. Ed. 2d 798 (1992). While it is impossible to state categorical rules for such cases, important considerations are whether property has been rendered "wholly useless," or whether its value has been totally destroyed. Teague, 570 S.W.2d at 393 (citing Armstrong v. United States, 364 U.S. 40, 48, 80 S. Ct. 1563, 1568, 4 L. Ed. 2d 1554 (1960) (although not every governmental act affecting property constitutes a taking, "total destruction by the Government of all value of [certain] liens" is a taking)).
In the present case, Taub's land is not rendered completely useless or deprived of all economically beneficial use. While the development of the property is limited in scope, it is not altogether precluded. The testimony Taub offered at trial was simply that the land could not be profitably developed when zoned for single-family use. The takings clause, however, does not charge the government with guaranteeing the profitability of every piece of land subject to its authority. Purchasing and developing real estate carries with it certain financial risks, and it is not the government's duty to underwrite this risk as an extension of obligations under the takings clause. Taub has failed to show, under these circumstances, a sufficiently severe economic impact. We need not decide whether a more restrictive ordinance would constitute a taking; we simply hold, under the circumstances of this case, that the City's refusal to rezone places no constitutional burden on Taub's property. See Lucas, ___ U.S. at ____, 112 S.Ct. at 2888 (under federal takings clause, addressing a prohibition on any habitable structures on a landowner's land).
Taub asserts that the City's dual role as both a rezoning authority and a condemning *827 authority proves that it acted to its own advantage, in violation of City of Austin v. Teague, 570 S.W.2d at 393. Under Teague, a landowner may recover damages when the government, acting in the role of an ostensibly neutral arbiter, acts for its own advantage against a landowner's economic interest.
The possibility of conflict is present whenever a governmental entity becomes involved in both condemning and appraising land. We recently addressed this conflict in State v. Biggar, 873 S.W.2d 11 (Tex.1994), in which we held that the State of Texas improperly used its discretion as arbiter to gain an advantage as the purchaser of land in condemnation proceedings and that this amounted to an unconstitutional taking of property. The landowners in Biggar provided evidence that the State denied a routine easement exchange in order to reduce the cost of acquiring a portion of the Biggar tract. Taub, by contrast, presented no evidence at trial which would show that the City denied his zoning request for the purpose of lowering his property's value for the condemnation proceeding. Instead, he argued primarily that he could not profitably develop his property under the current single-family use ordinance. Without evidence that the City acted to serve its own advantage, we are unwilling to find the refusal to rezone invalid under this theory.
III.
Apart from the takings issue, Taub contends that the court of appeals erred in holding that there were no damages to the remainder of his property. The proposed ditch would divide the tract roughly in half. Taub's expert testified that the cost of building one bridge to unify the tract would be roughly $105,000, and that this amount represented the difference in the value of the remainder before and after the taking. Taub claims that the cost of constructing a bridge to reestablish access to the divided tract fairly and accurately represents the damage he suffered.
The City responds that the proper measure of damages to the remainder is not the cost of building a bridge to unify the tract; rather, it is the difference in the market value of the remainder immediately before and after the taking. See State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 201 (Tex. Comm'n App.1936, judgm't adopted). There are no damages to the remainder of property, the City contends, when access is reasonable, rather than naturally or substantially impaired. See City of Waco v. Texland Corp., 425 S.W.2d 374, 376 (Tex.Civ.App.-Waco 1968), aff'd, 446 S.W.2d 1 (Tex.1969). In this case, the remainder tracts still have access to public streets. Finally, the City argues in favor of the court of appeals' holding that any harm suffered by Taub is offset by the ditch, which the City claims provides a special benefit to Taub's property by decreasing its susceptibility to flooding.
We agree with the City of Deer Park that the proper measure of damages for taking only part of a tract is the market value of the land actually appropriated and the difference, if any, in the market value of the remainder immediately before and immediately after the taking. See State v. Carpenter, 89 S.W.2d at 197. Market value is the price the property would bring in a transaction between a willing seller and a willing buyer. See id. at 202. The effect of condemnation on the value of the owner's remaining property is to be included in determining damages to the owner. Tex.Prop.Code Ann. § 21.042(c) (Vernon 1984).
Here, the court of appeals concluded that there was evidence supporting an implied finding that any damage to the remainder of Taub's property would be offset by the special benefit it received from the installation of the drainage ditch. 1994 WL 394095. The evidence indicated that the drainage ditch would facilitate the property's development by upgrading it from a 100-year flood plain to a 500-year flood plain.
Taub argues that any benefit his land has enjoyed is not unique to his tract, but rather is shared in common with the general community, and therefore may not be used to offset damages to him. We agree.
Benefits that a landowner experiences in common with the general community may not be considered in estimating injury or benefit to the owner. Tex.Prop.Code § 21.042(d) *828 (Vernon 1984); see also State v. Carpenter, 89 S.W.2d at 201. General benefits are those common to all property in the vicinity of the condemnee's property; such benefits accrue to landowners within the usable range of the public work. 3 Nichols On Eminent Domain, § 8A.04[2] (3d ed. 1994). Special benefits are those which arise from the peculiar relation of the land in question to the public improvement, and a benefit may be special even if it is not absolutely unique to the particular property at issue. Id. at § 8A.04[2]. The theory underlying the distinction between special and general benefits is that the landowner's recovery should not be reduced by benefits that arise from the condemnation itself and that inure to the community at large, rather than only to the landowner.
We recently reiterated that a special benefit connotes an enhancement more localized than a general improvement in community welfare, but not necessarily unique to a given piece of property. A special benefit is one going beyond the general benefit supposed to diffuse itself from the improvement through the municipality. State v. Schmidt, 867 S.W.2d 769, 780-81 (Tex.1993), citing Haynes v. City of Abilene, 659 S.W.2d 638, 641-42 (Tex.1983); see also Olson v. Harris Co., 807 S.W.2d 594, 595 (Tex.App.-Houston [1st Dist.] 1990, writ denied) (injuries or benefits experienced in common with the community may not be considered in estimating damages).
Here, there is no evidence that the benefit afforded is peculiar to Taub's property; rather, the improvement that placed Taub's tract in the 500-year flood plain benefited the entire eastern half of Deer Park as well. Thus, we hold that any benefit due to the installation of the drainage ditch was general to the community and may not be used to offset any damages to Taub's property.
* * * * * *
We conclude that the City of Deer Park's decision to deny Taub's request for rezoning was a reasonable, legitimate exercise of the police power and did not amount to a taking of property. We also conclude, however, that the court of appeals erred in holding that any damages to the remainder of Taub's property were offset by a special benefit due to the ditch installation. Accordingly, we reverse the court of appeals' judgment in part and remand the cause to the court of appeals for further consideration of Taub's complaints regarding the trial court's refusal to award remainder damages.
GONZALEZ, Justice, concurring and dissenting.
I agree with the Court that the proper measure of damages for a taking of only part of a tract is the market value of the land actually appropriated and the difference, if any, in the market value of the remainder immediately before and immediately after the taking. However, I would affirm the judgment of the court of appeals because Taub failed to establish damages to the remainder tract. I therefore concur in part and dissent in part with the opinion of the Court.
The basis for damages to a remainder tract is the fact that the property as a whole constituted a single tract prior to the taking; that is, there was unity of use, unity of ownership, and contiguity between the remainder tract and the parcel actually taken.[1]See City of Austin v. Capitol Livestock Auction Co., 453 S.W.2d 461, 463 (Tex.1970) (citations omitted); see also 4A Nichols On Eminent Domain, § 14B.03[1] (3d ed. 1994). The most troublesome factor for determining whether damages to the remainder are appropriate is determining whether there was unity of use between the tract taken and the remainder tract. See generally Nichols, supra, § 14B.03[3].
In Capitol Livestock, 453 S.W.2d at 464, this Court held that there was no unity of use or unity of ownership in a remainder tract that had been sold prior to the date of the *829 taking. In the present case, the evidence establishes that Taub succeeded in re-zoning the upper half of the tract for light industrial use prior to the date of the taking, while the lower half of the tract remained zoned for single-family residential use. Because Taub is using portions of the remainder tract for different purposes, there is no unity of use for the entire tract, even though there may be unity of ownership and contiguity. See Nichols, supra § 14B.03[1] ("[W]here an owner has been proven to use portions of what would otherwise constitute a single tract for different and separate purposes, the parts of that single tract, although in unity as to ownership and contiguity, may be held to be independent even though they are not physically separated."). A landowner may divide the actual remainder into two parts and seek damages as to only one part. State v. Oak Hill Joint Venture, 815 S.W.2d 827, 830 (Tex.App.-Austin 1991, no writ) (citing State v. Watson, 448 S.W.2d 720, 721 (Tex. Civ.App.-1969, writ ref'd n.r.e.)). Taub, however, did not do this; instead, he sought to recover damages to the remainder property as a whole. The only evidence Taub provided of market value before and after the taking was as to the entire tract. I do not believe that under the present record Taub established damages to the remainder tract because he did not prove that there was unity of use between the parcel taken for the ditch easement and the remainder of his tract.[2] I would therefore affirm the judgment of the court of appeals because Taub did not establish damages to the remainder tract. I otherwise concur with the opinion of the Court.
NOTES
[1] The court of appeals reversed and remanded to allow correction of errors in the form of the judgment. Neither party complains of this action.
[1] Thus, when the tract taken is a self-sufficient economic unit independent of the remainder of the tract, with no unity of use between the two tracts, then the owner's recovery should be ascertained by considering only the condemned land. In that case, neither severance damages nor benefits to the remainder of the property are to be considered. See DeWitt & Rearick, Inc. v. State, 531 S.W.2d 862, 865 (Tex.Civ.App.-El Paso 1975, no writ).
[2] Because I conclude that Taub is not entitled to remainder damages, I would not reach the question of whether the ditch provided an "implied special benefit," as the court of appeals held. 882 S.W.2d at 828. See State v. Schmidt, 867 S.W.2d 769, 780-81 (Tex.1993); see also Olson v. Harris Co., 807 S.W.2d 594, 595 (Tex.App.-Houston [1st Dist.] 1990, writ denied) (injuries or benefits experienced in common with the community may not be considered in estimating damages). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2465161/ | 882 S.W.2d 75 (1994)
HARRIS COUNTY APPRAISAL DISTRICT and Harris County Appraisal Board, Appellants,
v.
Florence H. DINCANS, Independent Executrix of the Estate of Harold Burton Dincans, Deceased, Appellee.
No. C14-93-00963-CV.
Court of Appeals of Texas, Houston (14th Dist.).
July 28, 1994.
Rehearing Denied August 25, 1994.
*76 M. Scott Bresk, Robert P. McConnell, Houston, for appellants.
Marvin A. Wurzer, Houston, for appellee.
Before ROBERTSON, CANNON and DRAUGHN, JJ.
OPINION
ROBERTSON, Justice.
This case concerns a dispute as to the appraised value of two tracts of land owned by Harold Burton Dincans before his death in 1986. This appeal comes to us from the trial court's judgment ordering that Dincans's agricultural use exemption be reinstated for the years 1983 through 1986. Trial was to the court on a set of facts to which all parties stipulated. Appellants bring one point of error on appeal in which they assert the trial court had no jurisdiction over this cause because Dincans failed to exhaust his administrative remedies. Because we find the stipulated facts insufficient to establish delivery of the required notice of appraised value in 1984, we find Dincans was not bound to exhaust his administrative remedies before obtaining judicial review. Accordingly, we affirm the judgment of the trial court.
In the tax years of 1982 and 1983, Harris County was the taxing entity responsible for appraisals and tax assessments. Revisions in the Tax Code, however, led to the creation of county appraisal districts. Thus, beginning in 1984, the Harris County Appraisal District (HCAD) assumed these responsibilities. The dispute underlying this appeal originated in two tracts of land owned by Dincans being granted an "ag-use exemption" in 1982, and not being allowed this exemption in the years 1983 through 1986. Although the parties stipulated that from 1980 through 1986 the property met all requirements qualifying it as eligible for the exemption, only the years 1984 through 1986 are before us in this appeal. *77 The agricultural use exemption, referred to by statute as an exemption for "qualified open space land," allows property to be appraised at a lower rate of valuation on property qualifying as such. Tex.Tax Code Ann. § 23.01 et seq. (Vernon 1992). The difference in the property owner's tax burden can be great. In the instant case, for example, one of the two tracts of Dincans's land in 1982 had a full market value of $271,340. With the agricultural use exemption, however, the taxable value of the land was only $29,140. This same tract of land experienced a drastic increase in value in 1984, appraising at a full market value of $1,943,500. The tax burden on this property at full market value would thus be extremely high, illustrating the importance both parties attach to this case.
The arguments made by the parties demonstrate a seeming conflict in two provisions of the tax code concerning notice to the taxpayer. Appellants state their case strictly in terms of section 25.19 that governs appraisals in general. This section requires the chief appraiser to deliver a written notice to a property owner in certain circumstances. In the instant case, HCAD was listing this property on its appraisal rolls for the first time in 1984 and thus was required by statute to send written notice of the property's appraisal. Tex.Tax Code Ann. § 25.19(a)(3) (Vernon 1992). Appellee, however, frames the issue in the case in terms of section 23.54, the section concerning appraisals for qualified open-space land. Id. § 23.54. This section states that failure to file an application for such appraisal on time renders the land ineligible for the exemption. However, it also provides that once land is eligible for the exemption, the land is eligible for appraisal with that status in subsequent years without refiling an application. Another application need be filed only if eligibility of the land ends or the ownership of the land changes. However, the section places a limitation on this continuous entitlement to the exemption by noting that if the chief appraiser has good cause to believe that eligibility has ended, he may require a new application. Tex.Tax Code Ann. § 23.54(e) (Vernon 1992). The chief appraiser must then deliver written notice that a new application is required and include an application form. The facts stipulate that HCAD did not mail such notice to Dincans, though the facts do state that "it was the custom and policy of HCAD to deliver by mail a written notice that a new application was required, accompanied by the application form, to the person who filed an application that was previously granted." Appellee asserts that this section provides a requirement for notice to the taxpayer exclusive of the notice provision in section 25.19, such that even if Dincans did receive a notice of appraisal reflecting no agricultural use exemption, that HCAD's failure to give the notice in section 23.54 accompanied by an application form would absolve him of his failure to protest. We do not agree.
Appellee provides no authority to sustain her contention that section 23.54 prevails over the notice provision in 25.19. The Code Construction Act states that when interpreting a statute, one must presume that the legislature intended an entire statute be effective. Tex.Gov't Code Ann. § 311.021(2) (Vernon 1988). Therefore, it follows that an entire act within which the single statute appears was intended to be effective as well. Allegheny Mut. Cas. v. State, 710 S.W.2d 139, 141 (Tex.App.-Houston [14th Dist.] 1986, no pet.). We must interpret the respective notice provisions of these two sections to give effect to each provision such that we avoid ambiguity and render a just and reasonable result.
Generally, a party must exhaust its administrative remedies before being entitled to judicial review. Texas Educ. Agency v. Cypress-Fairbanks, I.S.D., 830 S.W.2d 88 (Tex.1992); City of Sherman v. Public Utility Comm'n of Texas, 643 S.W.2d 681, 683 (Tex.1983). Failure to comply with the administrative remedy set up by the legislature in a statutory scheme means the trial court cannot gain jurisdiction over the cause. Webb County Appraisal Dist. v. New Laredo Hotel, 792 S.W.2d 952, 955 (Tex.1990); Lawler v. Tarrant Appraisal Dist., 855 S.W.2d 269, 271 (Tex.App.-Fort Worth 1993, no writ); Peil v. Waller County Appraisal Dist., 737 S.W.2d 33, 36-37 (Tex.App.-Houston [14th Dist.] 1987, no writ). Chapter 41 of the *78 Tax Code provides the means of reviewing a decision of the taxing entity. It specifically sets out a property owner's right to protest and states a taxpayer's right and opportunity to protest a number of actions. Tex.Tax Code Ann. § 41.41 (Vernon 1992). These actions include specifically a determination that an owner's land does not qualify for appraisal under subchapter "c" of chapter 23, the provision concerning the agricultural use exemption. Id. § 41.41(1). This provision also includes a general right of protest for any action "that applies to and adversely affects the property owner." Id. § 41.41(9).
We find that the remedy for the alleged erroneous appraisal of Dincans's two tracts of land at their full market value was to lodge a protest pursuant to the procedures outlined in section 41. Failure to receive the notice and application under section 23.54(e) can be addressed in a protest before the appraisal board. We find no conflict between the notice provision in 23.54 and that of 25.19 because of the primary significance of section 25.19 in being the first notice to a taxpayer that for whatever reason an agricultural use exemption had not been allowed. In view of the plethora of cases placing the burden on the property owner to pursue his administrative remedy in a timely manner, we cannot accept appellee's argument that would permit a property owner to do nothing when confronted with an obviously erroneous tax bill. To interpret sections 23.54 and 25.19 in such a manner would defeat the entire scheme the tax code sets out for protesting and appealing actions of the appraisal board.
We thus find that this case turns on the question of whether Harold Dincans received the required notice of appraised value in 1984, the first year Harris County Appraisal District appraised his property and was thus required to send this notice. The stipulation as to this matter states the following: "According to the official records of HCAD, a notice of the appraised market value was mailed to Harold Burton Dincans at his correct address on September 13, 1984." No other stipulation concerns this issue of whether Dincans received this notice under section 25.19. Section 1.07 of the Tax Code allows a party the presumption of delivery of notice upon its deposit in the mail for delivery by first-class mail. Tex.Tax Code Ann. § 1.07(c) (Vernon 1992). The presumption is rebuttable, however, and the presumption will disappear if the taxpayer presents evidence that he in fact never received the notice. Id.; see also Dallas Cent. Appraisal Dist. v. Las Colinas Corp., 814 S.W.2d 816, 818 (Tex.App.-Dallas 1991), rev'd on other grounds, 835 S.W.2d 75 (Tex.1992). The facts of this case thus lead us to the controlling issue of whether the stipulation is sufficient to create the presumption of delivery where the stipulation does not exactly track the language of the statute. See Green v. State, 681 S.W.2d 84, 85 (Tex.App.-Houston [14th Dist.] 1984, writ dism'd) (finding stipulation sufficient although did not track language of statute because statutory requirement of being "under arrest" was met by stipulation stating party "had been arrested").
Few cases exist regarding the provisions of section 1.07 and the conditions necessary to establish the presumption. One of the most extensive discussions of this provision occurs in Dallas County Appraisal Dist. v. Lal, 701 S.W.2d 44 (Tex.App.-Dallas 1985, writ ref'd n.r.e.). Lal was a summary judgment case, and to determine the question of delivery, the court had considerable evidence to look to in the form of an affidavit from the appraisal coordinator. The affidavit detailed eight steps taken by the appraisal district in mailing the notice of appraisal. The affidavit contained the following information:
(1) notice of the appraised value of all property in the county was printed by carbon within an envelope addressed to each taxpayer listed on the 1982 tax roll;
(2) the 1982 tax roll shows Lal's address as 1335 North Beltline Rd., Irving, Texas;
(3) the envelopes were preprinted "pre-sorted First Class Mail, U.S. Postage Paid";
(4) the Appraisal District has money in escrow with the U.S. Post Office to pay for postage;
(5) the employees of Appraisal District collated and separated individual notices;
*79 (6) such notices were then placed into a U.S. Post Office delivery box at the Appraisal District office;
(7) each postal delivery box was then taken to the main U.S. Post Office in Dallas for mailing; and
(8) the notice sent to Lal was not returned to the Appraisal District.
Lal, 701 S.W.2d at 48-49.
We do not agree with appellee's far-reaching suggestion that these eight elements are a universal means of establishing the presumption of delivery, nor do we agree that a party must show these eight elements any time it seeks the benefit of the presumption. See Uvalde County Appraisal Dist. v. Kincaid, 720 S.W.2d 678, 680 (Tex.App.-San Antonio 1986, writ ref'd n.r.e.) (noting need for evidence "comparable" to that of Lal in order to establish presumption). We do interpret Lal as demonstrating the kind of evidence necessary to establish the presumption. Given the importance the Tax Code places on giving notice for purposes of due process, we find the stipulation in the instant case inadequate to establish the presumption of delivery under section 1.07.
As the summary judgment proof presented in Lal illustrates, it is important to have the appraisal district prove that sufficient postage was placed on the envelope containing the notice, to know the means by which it places such notices in the mail, and to know that first-class mail was in fact utilized, and to know it was sent to the most current address and not returned. These more detailed assertions justify the appraisal district's entitlement to the presumption, showing that all possible precautions were taken to ensure the notice would go to the taxpayer listed on the tax rolls at his or her correct address as reflected on the tax rolls. The stipulation in the instant case, which could have easily established the presumption through clarifying the means by which notice was sent, instead would require us to assume facts not in evidence. See Sadler v. Duvall, 815 S.W.2d 285, 289 (Tex.App.-Texarkana 1991, writ denied) (stating trial court is bound by stipulation); Collum v. Deloughter, 535 S.W.2d 390, 393 (Tex.Civ.App.-Texarkana 1976, writ ref'd n.r.e.) (stating when parties stipulate that value of property is certain amount, court cannot go behind stipulation and speculate that value is less than that stipulated); Employers Casualty Co. v. Am. Employers Ins. Co., 397 S.W.2d 292, 297 (Tex.Civ.App.-Amarillo 1965, writ ref'd n.r.e.) (where case submitted on stipulated facts, duty of court is simply to determine legal effect of those facts). If an appraisal district is to gain the benefit of this significant presumption, it must do its part in ensuring, and proving, that all such safeguards were taken.
Because HCAD could have easily stated it had taken these safeguards suggested in Lal, we must question the steps it took in sending out the notices of appraised value and cannot find their stipulation, stating merely that they sent notice, sufficient to establish the presumption of delivery. Thus, appellee had nothing to rebut. Without sufficient proof that HCAD delivered in 1984 the notice required by section 25.19, we must find that appellee was not bound to the general rule that all administrative remedies must be exhausted before resorting to the judicial system. Uvalde County Appraisal Dist. v. Kincaid, 720 S.W.2d 678, 680 (Tex.App.-San Antonio 1986, writ ref'd n.r.e.). Therefore, we cannot find on this basis that the trial court erred in entering judgment for appellee. Point of error one is overruled, and the judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435577/ | 359 S.W.2d 602 (1962)
A. J. ARNOLD, Plaintiff-Appellant,
v.
Opal FISHER, Defendant-Respondent.
No. 8085.
Springfield Court of Appeals, Missouri.
August 18, 1962.
Motions for Rehearing or to Transfer Overruled September 11, 1962.
*604 Douglas & Douglas, Neosho, for plaintiff-appellant.
Ruyle & Henry, Neosho, for defendant-respondent.
STONE, Judge.
In this jury-tried action for damages in the sum of $15,000 on account of injuries alleged to have resulted from a vehicular collision, plaintiff appeals from an adverse judgment entered upon a unanimous jury verdict for defendant. About 7:30 A.M. on February 25, 1961, "a cold, frosty morning," A. J. Arnold, plaintiff herein, was riding in a 1958 Mercury sedan, owned by his son Bobby Lee (not then in the automobile), and being driven by his son Darrell, eighteen years of age. The Arnolds were proceeding in an easterly direction on U. S. Highway 60, which has a two-lane blacktop roadway approximately 24 feet in width, en route from the Arnold farm home near Seneca to Neosho where plaintiff was employed regularly and Darrell intended to seek employment. After traveling about one mile on Highway 60, "going upgrade all the time," at a speed estimated by both plaintiff and Darrell at 30 to 35 miles per hour, the right front fender of the eastbound Mercury ran into the left rear fender of a 1952 Ford automobile, also headed toward the east but then standing motionless, in which Mrs. Opal Fisher, defendant herein, had left her nearby farm home a very few minutes previously, en route to her regular employment in Neosho. Of the position of the Fisher Ford at the time of collision, we shall treat shortly.
Due to weather conditions, the windshields and windows of automobiles left in the open overnight (as both the Arnold Mercury and the Fisher Ford had been) were covered with frost in the early morning. With respect to the Arnold Mercury, plaintiff and his son Darrell testified that they had cleaned the windshield and rear window before they started that morning and that the windshield remained clear thereafter. With respect to the Fisher Ford, defendant and her husband said that, while she had finished dressing he had started the motor, warmed up the automobile, turned on the defroster, and "cleaned the frost off the windshield," and that, when defendant left the Fisher farm home, the windshield was clear and both the heater and the defroster were operating. However, when defendant turned from the Fisher driveway to the east onto Highway 60 and "the sun hit the windshield * * * it went to frosting over." Defendant drove "real slow" but the windshield "just kept covering." In her language, *605 "I drove pretty near to the top of the hill; I was trying to make it to Cook's (the next) driveway but I couldn't make it that far because I couldn't see to get there." So, she stopped.
Defendant fixed the point where she stopped as even with a clump of small trees on the south side of the highway, and defendant's witness Edsell, a civil engineer who subsequently made measurements and prepared a plat received in evidence, located that point as being approximately 650 feet east of the driveway (hereinafter referred to as the Fisher driveway), from which defendant had turned onto Highway 60. Upon trial, plaintiff testified that the collision had occurred "somewhere between 450 and 500 feet" east of the Fisher driveway. His pretrial deposition estimate of that same distance had been about 150 feet.
Defendant's evidence was to the effect that she had been unable to pull completely off the blacktop, because the south shoulder of Highway 60, at and near the point of accident, was not as wide as an ordinary automobile and fell off sharply into a deep ditch. She frankly admitted that, when she stopped, the left wheels of the Fisher Ford were "about 18 or 20 inches" north of the south edge of the blacktop, but she insisted that "I pulled over as far as I could""on the south side of the highway as far as I could get over." Plaintiff's evidence was to the effect that the south shoulder was of sufficient width to permit the parking of an automobile completely off the blacktop, but that the Fisher Ford was entirely on the blacktop with its left wheels about 2 feet south of the center line. In this connection, we note that, with the record affirmatively showing the width of the Fisher Ford as 6 feet 2 inches, Darrell also thought that the right wheels of the Fisher Ford were "within a foot" of the south edge of the 24-foot blacktop.
Regardless of the precise position of the Fisher Ford, defendant had turned off the ignition, had alighted from the automobile, and was "scraping real fast" on the windshield with a razor blade carried for that purpose, when she saw the eastbound Arnold Mercury "coming around the curve" west of the Fisher driveway. As to the unobstructed sight distance to the west, i. e., the distance at which the Fisher Ford could have been seen by an eastbound motorist such as Darrell, (a) defendant's witness Lett, eastbound on Highway 60 and the first motorist to stop at the scene of accident, estimated "around 1,000 feet," (b) defendant's husband estimated "around 900 feet," (c) defendant's witness Edsell after observation and measurement stated 800 to 850 feet, and (d) both plaintiff and his son Darrell thought about 550 feet. But whatever the distance at which the Fisher Ford could have been seen, plaintiff and his son (in precise accord on this detail also) agreed that neither did see the Ford until it was "about 20 feet" distant; and, with their testimony still following the same track, both said that, although Darrell swerved to his left, he could not go around the Fisher Ford because of an approaching westbound truck which they sighted about the same time they saw the Ford and which passed "right before" the collision. Defendant saw no such westbound vehicle. Admittedly, no truck stopped. In any event, Darrell never applied the brakes on the Arnold Mercury and its right front fender ran into the left rear fender of the Fisher Ford with the Mercury still traveling at undiminished speed estimated by plaintiff at "between 30 and 35 miles" per hour. As a result of the impact, the Ford was knocked forward or to the east about 20 feet and the Mercury "bounced back" and "nosed right down in the (south) ditch."
The only explanation or excuse offered by plaintiff or his son Darrell for their admitted failure to see the Fisher Ford until they were within 20 feet of it was that they had been blinded by the rising run or, as Darrell put it while seeking more innocuous language after plaintiff's counsel objected to use of the term "blinded," "it (the sun) didn't blind me; it just obstructed my vision for awhile." Darrell offered considerable testimony on this subject, not all of it easily reconcilable. His first statement *606 in this evidentiary area was that the sun had been in his eyes "just momentarily, just when you came around that curve" west of the Fisher driveway. (All emphasis herein is ours.) When asked later whether anything had prevented him from seeing the Fisher Ford as he had rounded that curve, Darrell's response was, "well, the sun would be the only thing; I could see for a good distance, but I wasn't expecting her to be up there." But, to the second succeeding question as to whether "the sun blinded you * * * as you came around the curve," Darrell agreed, "yes, where I couldn't see a good distance." Although stating that he could see farther than 20 feet, he readily agreed that he had not seen the Fisher Ford until "about 20 feet" from it, repeating that "I wasn't looking for her because I wasn't expecting her to be there." Further along in his cross-examination, Darrell insisted that he "wasn't blinded" as he rounded the curve west of the Fisher driveway and that he "could see all right from the time (he) came around the curve up to the driveway"; but, "when I hit the driveway, the sun hit my eyes about the same time." Plaintiff said that the sun "blinds anybody going up the hill early of a morning" but immediately denied that it had blinded him. "I could see all the time""yes, about 30 feet ahead" of the Mercury.
Plaintiff's witness Reed eastbound on Highway 60, who stopped at the accident scene, said that he was "not completely" "blinded as he rounded the curve west of the Fisher driveway, but that "you couldn't see as good as you could (on) an ordinary day." According to Reed, he saw the damaged automobiles when he was "maybe a hundred feet" distant. Defendant's witness Beavers also eastbound, who had entered Highway 60 from his home driveway only some 300 feet west of the Fisher driveway, had experienced the same difficulty as defendant in that the windshield of the Beavers automobile, although clear when he left home, had "frosted over pretty well" by the time he reached the Fisher driveway, but nevertheless Beavers said that "as soon as I rounded that curve I could see something up there, some cars." Defendant's witness Lett, likewise eastbound on the highway en route from Wyandotte, Oklahoma, to Springfield, said that there was "some sun through the windshield" but that "it wasn't so bright but what you could see the wreck" rounding the curve west of the Fisher driveway.
The only alleged negligence, on which the case was submitted by plaintiff's sole verdict-directing instruction 1, was "that the defendant failed to exercise the highest degree of care in that defendant stopped her automobile on the traveled portion of said highway and negligently left said automobile stopped on said highway in front of oncoming traffic." Upon appeal, plaintiff's principal point is that the trial court erred in giving defendant's sole cause instructions F and G. The primary reason assigned in subpoint (a) is that, since "at least a part of defendant's car was left stopped on the traveled portion of the highway, * * * this is not a true sole cause situation because it could not be said that defendant was free and clear of all negligence on her part." Or, as the same subpoint is presented in plaintiff's argument, "all reasonable persons would have to say that defendant was at least guilty of concurring negligence on her part and that under these facts defendant could not be cleared of contributory (sic) negligence to the extent that a sole cause situation existed."
The gist and substance of this subpoint is that, regardless of whether Darrell (the driver of the Arnold Mercury in which plaintiff was riding) was negligent, defendant was guilty of negligence as a matter of law and thus a sole cause instruction should not have been given. Wilkins v. Stuecken, 359 Mo. 1047, 1052, 225 S.W.2d 131, 134(3); Wilson v. Toliver, 365 Mo. 640, 651, 285 S.W.2d 575, 581-582(9). However, plaintiff offered no motion for a directed verdict [Rule 72.01; Section 510.280][1]*607 and sought no peremptory instruction; but, on the contrary, plaintiff treated defendant's negligence as an issue for determination by the jury and submitted that issue by plaintiff's instruction 1. In these circumstances, plaintiff did not preserve for appellate review, and is precluded from urging here, the assignment that the trial court erred in giving defendant's sole cause instructions because (so plaintiff asserts) defendant was guilty of negligence as a matter of law. This was the specific holding in Warren v. Weaver, Mo.App., 343 S.W.2d 682, 684-685(3). See Robbins v. Robbins, Mo., 328 S.W.2d 552, 555(1), and Heideman v. Lorenz, Mo., 349 S.W.2d 230.
Although the foregoing is dispositive of this subpoint, it may not be inappropriate to add that, if plaintiff's contention were to be ruled on its merits, we would be impelled to deny it. In determining whether the facts justified the giving of a sole cause instruction, it would be our duty to view the evidence in the light most favorable to defendant and to give her the benefit of all favorable inferences fairly and reasonably deducible therefrom. Hartley v. Smith, Mo., 354 S.W.2d 854, 857(2); Ketcham v. Thomas, Mo., 283 S.W.2d 642, 650; Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254, 255(1). If, as defendant positively testified, the windshield of the Fisher Ford was clear when she left home but, as soon as she turned onto the highway and "the sun hit the windshield * * * it went to frosting over" and "just kept covering" (and the testimony of witness Beavers tended to confirm this), and if, although she tried "to make it" to the next driveway, "I couldn't make it that far because I couldn't see to get there," she had a duty, with her vision thus materially impaired, to exercise care commensurate with the existing situation [Duffy v. Cortesi, 2 Ill. 2d 511, 119 N.E.2d 241, 245; Templar v. Tongate, 71 Wyo. 148, 255 P.2d 223, 229]; and if, unable to see ahead, she nevertheless had proceeded blindly, she would have irresponsibly invited disaster to herself and others and recklessly hazarded the risk of being branded as negligent, perhaps as a matter of law. See Phillips v. Stockman, Mo.App., 351 S.W.2d 464, 471(8), and cases collected in footnote 6.
Defendant definitely stated that "I pulled over as far as I could""on the south side of the highway as far as I could get over," thus placing the left wheels of the Fisher Ford only 18 or 20 inches north of the south edge of the blacktop and leaving more than 22 feet of the blacktop roadway unobstructed, of which more than 10 feet (and thus considerably more than the width of an ordinary automobile such as the Arnold Mercury) was between the left side of the Fisher Ford and the center line of the blacktop.[2] It was what we colloquially refer to as "broad daylight" and the unobstructed sight distance to the rear, or to the west, was not less than 800 to 850 feet. Mindful that, under defendant's evidence, the Fisher Ford was placed with its right side "as near the right-hand side of the highway as practicable" [Section 304.015, subd. 1] and that the only negligence submitted was "that defendant stopped her automobile on the traveled portion of said highway and negligently left said automobile stopped on said highway in front of oncoming traffic," we could not say, upon the record presented, that, in stopping briefly for the reason and *608 at the place she did, defendant was negligent as a matter of law. See again Phillips v. Stockman, supra.
The only case, to which plaintiff refers in his argument, is Beahan v. St. Louis Public Service Co., Mo.App., 213 S.W.2d 253, a split decision with respect to which it will suffice to comment as did our Supreme Court in Lynn v. Kern, Mo., 323 S.W.2d 726, 730: "There was a strong dissent. Whether the Beahan case is right or wrong it does not present the situation we have here. The defendant did not submit that the sole cause of plaintiff's injuries was (his) own negligence." Other cases cited by plaintiff (but not referred to in argument) do not support the assignment of error in subpoint (a). It may be observed in passing that defendant's sole cause instructions in the instant case do not exhibit the manifest frailties of the criticized instructions in plaintiff's cited cases, e. g., cryptic submission on the hypothesis of abstractions only [Ketcham v. Thomas, supra, 283 S.W.2d loc. cit. 651], or failure to require a finding that the negligence of plaintiff's host driver was the sole cause of the collision and plaintiff's injuries [Happy v. Blanton, Mo., 303 S.W.2d 633, 636-637], or failure to require a finding excluding or negativing defendant's negligence as submitted in other instructions. Dulley v. Berkley, Mo., 304 S.W.2d 878, 883-884.
In subpoint (b), plaintiff complains that defendant's sole cause instructions F and G were erroneous "because they fail to sufficiently hypothese the factual situation in regard to defendants evidence and to properly state all factual elements necessary for a sole cause instruction." This subpoint is not developed, in fact is not even mentioned, in the argument section of the brief. However, in a second sentence in the subpoint, plaintiff states that "it was a disputed question as to the exact location of defendants automobile on the traveled portion of the highway," so (that being the only "factual element" mentioned) the gist and import of this complaint is that the sole cause instructions did not require a finding "as to the exact location of defendants automobile on the traveled portion of the highway." True, a finding of "exact location * * * on the traveled portion of the highway" was not required in the sole cause instructions. But the initial finding required in both such instructions was that "defendant stopped her vehicle upon U. S. Highway 60 at a point where the view from the west along said highway was unobstructed for a distance of approximately 700 to 800 feet"; and, as we have noted, there was ample evidence from which the jury reasonably might have so found.[3]
It is an altogether appropriate and adequate answer to plaintiff's complaint to point out that, in his sole verdict-directing instruction 1, he was content to submit in the broadest of terms, i. e., "that defendant stopped her automobile on the traveled portion of said highway," which certainly did not require a finding as to "the exact *609 location of defendants automobile on the traveled portion of the highway" or, for that matter, even a more general finding as to whether it was entirely on the blacktop as plaintiff said or only partially thereon as defendant insisted. Regardless of the sufficiency of the hypothesization as to the location of defendant's automobile in the sole cause instructions (concerning which we need not express an opinion), plaintiff will not be heard to complain where his verdict-directing instruction submitted the same "factual element" in language similarly general and no more specific.[4]
Furthermore, in a case such as this which was submitted on a single charge of primary negligence and in which the facts were simple, "easily understood and within the common knowledge of the members of the jury" [Carson v. Evans, 351 Mo. 376, 381, 173 S.W.2d 30, 32; Kelly v. Kansas City Public Service Co., Mo., 335 S.W.2d 159, 164], recent holdings of our Supreme Court sound the timely warning that, in the absence of plainly confusing or misleading instructions manifestly infringing substantial rights in a demonstrably substantial manner, there is no error "materially affecting the merits of the action" [Rule 83.13(b); Section 512.160(2)] and the granting of a new trial is neither required nor justified. Kelly, supra, 335 S.W.2d loc. cit. 164(8); Stewart v. Boring, Mo., 312 S.W.2d 131, 134; McGhee v. Jones, Mo., 336 S.W.2d 722, 726. We may say with respect to instructions F and G in the case at bar, as did the Supreme Court concerning a sole cause instruction assailed in Happy v. Blanton, supra, 303 S.W.2d loc. cit. 640: "There was no misdirection by the instruction(s), and we do not see how the jury could have been confused by (them). In the final analysis these are the two basic tests which determine the sufficiency of any instruction." Subpoint (b) is disallowed.
In subpoint (c), plaintiff asserts that the trial court erred in giving "two sole cause instructions F and G submitting the same theory along with a contributory negligence instruction D." It is a fundamental and time-honored principle of appellate procedure that a trial court must be afforded an opportunity to review and correct its own errors before the aid of an appellate court may be invoked. State ex rel. Morton v. Cave, 359 Mo. 72, 220 S.W.2d 45, 49(4); Brown v. Thomas, Mo.App., 316 S.W.2d 234, 236(3); Gover v. Cleveland, Mo.App., 299 S.W.2d 239, 243(12). Thus, the plain requirement of Rule 79.03 [see Section 512.160(1)] that "(a)llegations of error, in order to be preserved for appellate review, must be presented to the trial court in a motion for a new trial" is held to be mandatory [C & O Distributing Co. v. Milner Hotels, Mo.App., 305 S.W.2d 737, 738(1); Gosnell v. Gosnell, Mo.App., 329 S.W.2d 230, 234(5) ]; and excepting only those questions particularized and enumerated in Rule 79.03 (none of which are applicable here), a party is precluded from urging on a civil appeal any allegation of error not presented to the trial court in a motion for new trial. Mayor v. Mayor, Mo., 349 S.W.2d 60, 62-63(2); State ex rel. State Highway Commission v. Dockery, Mo., 340 S.W.2d 689, 695(8); Robbins v. Robbins, supra, 328 S.W.2d loc. cit. 555(4, 5); Fruit Supply Co. v. Chicago, B. & Q. R. Co., Mo.App., 119 S.W.2d 1010, 1011(4). Referring particularly to instructions, Rules 79.03 and 70.02 permit specific objections to instructions to be made *610 wholly before submission to the jury, wholly in the motion for new trial, or partly before submission and partly in the motion for new trial [Sullivan v. Hanley, Mo.App., 347 S.W.2d 710, 711(1)], but an alleged error not presented by specific objection at one place or the other is not preserved for appellate review. O'Brien v. City of St. Louis, Mo., 355 S.W.2d 904, 908(8); Wolff v. Richardson, Mo.App., 358 S.W.2d 112, 116(5). See also Adair v. Cloud, Mo., 354 S.W.2d 866, 871(5); Hartz v. Heimos, Mo., 352 S.W.2d 596, 602(5). Not having been presented by specific objection either at the time of trial or in the motion for new trial, the complaint which instant plaintiff now asserts for the first time in subpoint (c) will not be considered.
Finally, plaintiff now asserts that the trial court erred "in permitting defendant to read the deposition of M. E. Lett because Mr. Lett had been subpoened to be present and the court ruled the subpoena to be without force because it was issued in blank when as a matter of fact a subpoena issued in blank is good." Careful examination of the record reveals no ruling by the trial court that the subpoena, to which counsel refer, was "without force" or invalid. We do not presume error on the part of the trial court [Hardy v. McNary, Mo., 351 S.W.2d 17, 20(2, 3); Orlann v. Laederich, 338 Mo. 783, 92 S.W.2d 190, 197(10)], and we will not indulge in speculation or implication to reach a labored conclusion that he erred. Osby v. Tarlton, 336 Mo. 1240, 1253, 85 S.W.2d 27, 34(6). Furthermore, the alleged error averred with particularity in plaintiff's motion for new trial was that: "The court erred in permitting the defendant to read the deposition of M. E. Lett in evidence because Mr. Lett had been subpoened in Newton County, Missouri, and was available under the subpoena as a witness and the record shows a valid subpoena issued for Mr. Lett and properly served. Plaintiff had a right to require the defendant to put the witness on the stand instead of using the deposition." We observe parenthetically that nothing in the transcript indicates that Lett "was available under the subpoena as a witness." In any event, the same fundamental and time-honored principle of appellate procedure noted in our discussion of subpoint (c), supra, forbids our consideration of the point now urged which is radically different from that specifically averred in the motion for new trial. See Grapette Co. v. Grapette Bottling Co., Mo.App., 286 S.W.2d 34, 37, and cases there cited.
The judgment should be and is affirmed.
McDOWELL, J., concurs.
RUARK, P. J., not sitting.
NOTES
[1] All references to rules are to the Missouri Rules of Civil Procedure, V.A.M.R., and all references to statutes are to RSMo 1959, V.A.M.S.
[2] Although some of defendant's quoted testimony was conclusionary in nature and might have been excluded upon timely objection or motion to strike, its probative worth and effect were for the jury in the absence of any such objection or motion. Lomax v. Sawtell, Mo.App., 286 S.W.2d 40, 42(1); Mayne v. May Stern Furniture Co., Mo.App., 21 S.W.2d 211, 213(2); Ferrell v. Sikeston Coca-Cola Bottling Co., Mo.App., 320 S.W.2d 292, 296(7), and cases collected in footnote 2.
[3] Instruction F required additional findings (1) that Darrell, "in the exercise of the highest degree of care, saw or should have seen the defendant's car where it was stopped on the highway approximately 700 to 800 feet ahead," (b) that Darrell "failed to exercise the highest degree of care * * * in that he negligently and carelessly failed to keep and maintain a reasonably careful and vigilant lookout for other vehicles upon the road," (c) that "such conduct on his part was negligence," (d) that "whatever injuries plaintiff received resulted solely from such negligence of the said Darrell Arnold," and (e) "that defendant was not guilty of any negligence under other instructions given you herewith." Instruction G required the same finding (a), followed by findings that Darrell "became blinded so that he could not see his way ahead, at a point when the defendant's car was then approximately 600 to 650 feet ahead stopped on the highway" but that Darrell "after becoming blinded continued to drive his car while blinded for a distance of approximately 600 to 650 feet to the point of collision at a speed which was high and excessive under the circumstances," and then findings similar to (c), (d) and (e), supra.
[4] Terrell v. Missouri-Kansas-Texas R. Co., Mo., 327 S.W.2d 230, 238-239(14); Stewart v. Boring, Mo., 312 S.W.2d 131, 133-134; Layton v. Palmer, Mo., 309 S.W.2d 561, 569-570(17), 66 A.L.R. 2d 1242; Palmer v. Lasswell, Mo., 287 S.W.2d 822, 828(5); Zumwalt v. Utilities Ins. Co., 360 Mo. 362, 228 S.W.2d 750, 755(5); Roeslein v. Chicago & E. I. R. Co., Mo., 214 S.W.2d 13, 18(6); Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30. See particularly Moses v. Kansas City Public Service Co., 239 Mo.App. 361, 377, 188 S.W.2d 538, 547(15). And, see generally the multitude of cases collected in West's Missouri Digest, Appeal and Error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435591/ | 359 S.W.2d 238 (1962)
In the Matter of the ESTATE of George W. BAKER, Deceased.
Roy BAKER, Petitioner-Respondent,
v.
Alta BAKER, Administratrix, Defendant-Appellant.
No. 8038.
Springfield Court of Appeals, Missouri.
July 20, 1962.
*240 Sharp & Hatley, William B. Sharp, Malden, for defendant-appellant.
Riddle, Baker & O'Herin, Malden, Bock & Jones, New Madrid, for petitioner-respondent.
RUARK, Presiding Judge.
This is an appeal by the administratrix-defendant from an adverse judgment rendered in a discovery proceeding.
In 1955 George W. Baker died intestate, leaving his widow, Alta, and various children, including sons Roy and Clifford. The widow was appointed administratrix. The inventory shows a quantity of real estate but no personalty.
On August 8, 1960, the son Roy, whom for convenience we will refer to as the petitioner, filed amended affidavit charging the administratrix with withholding and concealing certain personal assets and praying that citation be issued to compel her to answer questions under oath. We do not find the citation in the files, but the record shows it was issued returnable October 25. Upon disqualification of the probate judge, the matter was transferred to the circuit court.
On November 22 the cause was set for trial on January 10, 1961. Thereafter, on the same day (November 22), defendant-administratrix filed answer which was in effect a general denial of the petitioner's affidavit. Thereafter (still November 22) the petitioner filed interrogatories. The interrogatories with which we are now concerned dealt with (a) a note from J. E. Hollcroft and Myrtle Hollcroft to George Baker, dated January 4, 1951; (b) a bank account at the State Bank of Bernie; and (c) an automobile.
On January 10, 1961, the parties appeared before the court. No answers to the interrogatories had been filed, but the court proceeded to hear evidence. Concededly no one asked for a jury. The petitioner put into evidence an instrument entitled "Vendor's Lien Note" given at Weslaco, Texas, on January 4, 1951, and payable at the First National Bank of Weslaco. Said note was given by J. E. Hollcroft and Myrtle Hollcroft, who therein promised to pay to G. W. Baker $10,500, in monthly installments of $75, and stated the note was given as part payment for certain land (legal description set forth) in Hidalgo County, Texas, which land was "this day conveyed to the undersigned, by G. W. Baker and wife, Alta Baker." The note further recites that as further security a deed of trust is given concurrently therewith.
In reference to the bank account, petitioner called the cashier of the State Bank of Bernie, who produced under subpoena duces tecum the ledger sheets of a checking account headed "G. W. or Alta L. Baker," commencing with a first deposit in the amount of $643.67, of date September 19, 1953, and continuing to February 20, 1958. He identified as records of the bank some nine deposit slips. The first one (September 9, 1953) reflected a deposit in the amount of $643.67 to the credit of "G. W. Baker or Alta L." Another deposit receipt dated September 29, 1953, showed a deposit of $1500 made in the same manner. The following receipts simply reflected deposits by "G. W. Baker." The witness testified that when the account was opened, G. W. Baker appeared in person with his wife, Alta, and a card was made out. Both of them (husband and wife) had to sign the card. He said that he opened the account for them himself and that the initial deposit slip was in his (the cashier's) handwriting. (Although he was not asked about it, each of the following deposit slips appears to be in the same handwriting.) The witness obviously understood and was of the opinion that this was a *241 "joint" account. He repeatedly referred to it as such. When asked to explain why the deposit slips following the first two were made out in the name of "G. W. Baker" only, he said, "It is not necessary to show it, the two after you have a joint account established." Referring to the custom of the bank, "After we open a joint account and the original deposit slip is the only one that is necessary to show it, and G. W. or Alta Baker and" (interrupted by objection). "The original must show it and it is G. W. or Alta and it is posted to the ledger account and the ledger account will show it too, and then any deposits thereafterany bank will tell you that you don't have to show the two, but it is posted to that joint account, G. W. or Alta L. Baker." "Yes, sir, it is our practice." He said that the account in question was the only one which G. W. or Alta Baker had in the bank; that all deposits went into that one account; that he (or the bank) never did receive instructions to put any money in any other account.
As to the signature card, the witness said it had been mislaid in the bank and he had been unable to find it, so he could not produce it. He did not say, and nobody asked him, what the missing card contained, whether it contained a survivorship provision, a tenancy in common arrangement, a tenancy by entirety clause, a mere permission to check, or what. Nor was he asked to produce the form of card which was signed.
Defendant-administratrix then took the stand and identified as Exhibit 1 an original deed of conveyance of date May 29, 1945, wherein were conveyed to "G. W. Baker, and wife, Alta Baker," of Hidalgo County, Texas, the identical lands described in the vendor's lien note hereinbefore mentioned. After the witness had identified the deed, the petitioner objected, "I object to that, to this witness testifying to a contract to which G. W. Baker was a party, and he is now dead."
Thereafter the administratrix was handed defendant's Exhibit 2, which was a deed of trust given by J. E. Hollcroft and wife, Myrtle Hollcroft, of date January 4, 1951, the same date as the vendor's lien note aforementioned, to secure an indebtedness to "G. W. Baker and wife, Alta Baker." The deed of trust described the note aforementioned and conveyed the same land. The administratrix testified that the note therein described was the same as petitioner's Exhibit A. Thereupon petitioner objected "for the reason G. W. Baker is a party to that instrument and is now dead." The objection was overruled and defendant then offered the whole exhibit. Upon such offer no ruling was made, but the witness interposed, "That is what the lawyer said, it didn't make a bit of difference in the world in Texas." That was objected to on the ground it was not responsive and was a conclusion, and there the testimony ended. There was no evidence pro or con in respect to the charge concerning the automobile. Thereupon the court took the matter under advisement.
On March 7, 1961, the petitioner, Roy Baker, filed a brief. This evidently set the administratrix' attorney to thinking that he had better file answers to the interrogatories, and this he did on March 13, 1961. The substance of these answers was:
(a) The note from the Hollcrofts was owed to deceased and his wife jointly and since the death of G. W. Baker the amount paid on it was $4950.
(b) The account at the State Bank of Bernie was a joint account.
(c) Deceased owned no automobile. A Plymouth automobile belonging to Clifford Baker was "listed" in the name of George W. Baker. Said automobile had been delivered to Clifford Baker. (The answer leaves in doubt whether or not the administratrix had had actual possession or control of the automobile.)
On April 25, 1961, the court filed a judgment which recited that Alta Baker *242 failed to answer the interrogatories until after the hearing on January 10, 1961, "and filed same late without leave of court"; that on January 10, the trial date, the parties went to trial and neither required a jury; that at his death George W. Baker was the owner of the Hollcroft note and that the administratrix-widow had concealed and unlawfully withheld it; that at the time of his death George W. Baker was the owner of the bank account at the State Bank of Bernie in the amount of $5214.63 and that the administratrix-widow had withdrawn and concealed and unlawfully withheld it; that George W. Baker was the owner of a Plymouth automobile which administratrix had concealed and unlawfully withheld; that the administratrix had failed in her trust as administratrix and converted assets to her own use and was thereby removed as administratrix. In addition to removal, the administratrix was ordered forthwith to deliver the aforementioned property to a new administrator.
It is appellant's first complaint that she was denied the due process of a trial of the issues. Her attorney contends that since the statute (V.A.M.S. § 473.343) provides the right of oral examination prior to interrogatories, she was justified in waiting to file answers to the interrogatories until that examination was had, and that she presented herself for such examination on January 10, 1961 (the date set for hearing).
It is the petitioner-respondent's position that in failing to file answers to interrogatories by trial date the administratrix was in default. Although we are not certain, it would appear from the language of the judgment that the court took this view.
The procedures set up for discovery proceedings comprise a code of their own. Briefly, the statutes (V.A.M.S. §§ 473.340, 473.343, 473.347, 473.350) provide for the following steps:
(1) An affidavit is filed and citation is issued.
(2) The defendant may admit or deny the allegations of the affidavit.
(3) If defendant denies the allegations of the affidavit, the petitioner has the right to subject the defendant to oral examination.
(4) The petitioner files interrogatories.
(5) The defendant files answers to such interrogatories.
(6) Trial is had on the issues thus raised. Missouri Probate Law and Practice, Maus, vol. 4, § 876, et seq.; State ex rel. Lipic v. Flynn, 358 Mo. 429, 215 S.W.2d 446, 449.
As to the right of the petitioner to place the defendant under oral examination [(3) above], that provision is still carried in the statutory procedure (V.A.M.S. § 473.343), presumably because the examination may be an aid in framing the interrogatories. But the petitioner may waive this right. And it can be seen that he may wish to do so when the dead man's statute (V.A.M.S. § 491.010) is involved. Maus, supra, § 877; In re Weingart's Estate, Mo.App., 170 S.W.2d 972, 977. Although it might seem better practice to require the signification of this waiver by some sort of notice to court and counsel, we think the act of filing of interrogatories on November 22 was in and of itself a notice of such waiver and that defendant should have taken notice of this fact.
However, there is a more important consideration: Under the statutes and all of the decisions the issues are framed by the interrogatories and the answers thereto.[1]*243 In ex parte Fowler, 310 Mo. 339, 275 S.W. 529, 533, it was said:
"In the absence of an admission, then, there is no case until interrogatories are filed, and answer made thereto. Under the statute, it is then, and then only, that we have issues to be determined by a jury or by the court. * * * Absent triable issues, and a trial, the court is without power to enter a judgment or order. * * If an adjudication is made, and a judgment entered, it is a nullity. It is not due process of law."
Unless, therefore, the defendant can be considered in default, no trial on the merits could have been had because the issues had not been made up.
But when should the answers to interrogatories be filed? What is the time limit? The statute fixes no time, and no case which we have found deals with that problem. It is our conclusion that, since the statute does not fix a time, it is the duty of the court to fix a time for answering. The court did not do so in this instance (nor did any citation so far as we can find in the record). Bearing in mind that the interrogatories and the answers thereto make up the issues, the court should be zealous that the parties are apprised of the time and occasion when the issues are to be made up. In re Waters' Estate, Mo.App., 153 S.W.2d 774, 775.
Referring back to the statutes, if the defendant fails to file answers within the time limited, the court is not powerless. It can commit the defendant to jail until such answers are filed. (V.A.M.S. § 473.347) The situation, although not exactly similar, is somewhat analogous to a garnishment proceeding after judgment. In such a case, where the interrogatories had not been answered and judgment was taken, this court in Chenoweth v. La Master, Mo.App., 342 S.W.2d 500, held that the judgment rendered on a supposed default was improper and remanded the case for proper proceedings, this for the reason that the real issues contemplated by the proceeding had not been made up and heard.
It is our conclusion that the trial (of the issues?) and the judgment on the same was premature; that there was no real trial as contemplated by the statute; and hence the judgment must be reversed and remanded for a new trial.
Nor are we certain as to how the trial judge considered the belated answer. In respect to the automobile there was no evidence presented. If the court considered the answer as a pleading of that issue, the defendant should have been permitted to make proof on that issue. If he considered it solely as evidence, such was improper because it had not been offered in evidence. (See Covey v. Van Bibber, Mo.App., 311 S.W.2d 112, 115; Starks v. Lincoln, 316 Mo. 483, 291 S.W. 132, 133). Since the case must be retried, we suggest that since the answer shows that legal title to the automobile was in the deceased, the burden is squarely upon the administratrix to prove the affirmative, viz., that the defendant actually had no beneficial interest therein. Allmon v. Allmon, Mo.App., 306 S.W.2d 651, 654.
As to the bank account:
Whether a deposit in two names is a joint tenancy or a tenancy by the entirety usually depends upon the intention of the parties.[2] Whether the deposit is made in husband and wife or in husband or wife does not seem to be the controlling *244 factor. In Longacre v. Knowles, Mo., 333 S.W.2d 67, it was held that in a relationship between uncle and nephew, where notes and bonds were "or," the use of the disjunctive was incompatible with a joint tenancy.[3] And in those cases where the deposit arrangement carries no provision for survivorship as provided in Section 362.470, V.A.M.S., a deposit in husband or wife creates no presumption of joint tenancy. Murphy v. Wolfe, 329 Mo. 545, 45 S.W.2d 1079, 1081. On the other hand, a deposit arrangement in the form of the statute (providing for survivorship) raises a presumption in favor of the joint account. Melinik v. Meier, Mo.App., 124 S.W.2d 594, 597. And a deposit to husband or wife where the deposit or signature card shows right in the survivor raises a presumption of joint tenancy or estate by the entirety. Feltz v. Pavlik, Mo.App., 257 S.W.2d 214, 218; Hanebrink v. Tower Grove Bank & Trust Co., Mo.App., 321 S.W.2d 524. Of course, the estate by the entirety continues in personal property, and a deposit made to husband and wife, regardless of lack of the survivorship provision, will be presumed to be a tenancy by the entirety.[4]
We would think that once a single deposit account has been established in a bank, in whatever form it might be, then in the absence of any evidence showing to the contrary, subsequent deposits made in the same bank, without indication of intention that they shall be considered or credited differently, would justify the inference that the depositor intended them to become a part of the account originally established.
As to the Hollcroft note:
Appellant says that a tenancy by entirety follows the proceeds of the sale of the Texas property. We would say that in the absence of evidence indicating a contrary intention by both parties a tenancy will be presumed to follow the proceeds of the sale of entirety property.[5]
Respondent says that the defendant did not prove an entirety in the land because the deed which showed title in the husband and wife was identified in violation of the dead man's statute. In that connection we note that the objection to such identification came after the witness had answered. There was no claim that the answer came too fast to permit opportunity to object, nor was there any request to strike such testimony. (See Hamiltonian Federal Savings & Loan Ass'n v. Wendling, Mo.App., 199 S.W.2d 29, 33; see also Stephenson v. Stephenson, 357 Mo. 8, 171 S.W.2d 565, 568)
Both parties ignore the question of whether there was an original entirety and the question of whether or not such note had a fixed legal status in regard to interest and ownership when it was brought into this state. No attention is paid to the question of whether the Texas community property law is applicable.[6]
It is not the duty of the appellate courts to brief the cases for the litigants' attorneys. In this opinion we have attempted to point out some procedures and some of the phases of the law which may be applicable or might be involved on a retrial *245 of this case, in the hope it will be of some assistance. All we can say is that if counsel wish to sit on their assurance and rely upon "presumptions" and fail to produce evidence when such is readily available, they run the risk of rendering a disservice to their clients.
The judgment is reversed and remanded.
McDOWELL and STONE, JJ., concur.
NOTES
[1] Missouri Probate Law and Practice, Maus, vol. 4, § 878; Maynard v. McClellan, 236 Mo.App. 352, 156 S.W.2d 770, 773; Spencer v. Barlow, 319 Mo. 835, 5 S.W.2d 28, 32; Allmon v. Allmon, Mo.App., 306 S.W.2d 651, 654; Covey v. Van Bibber, Mo.App., 311 S.W.2d 112, 113; In re Decker's Estate, 348 Mo. 32, 152 S.W.2d 104; In re Weingart's Estate, Mo.App., 170 S.W.2d 972, 977, 978.
[2] 7 Am.Jur., Banks and Banking, §§ 425, 426, pp. 299-301; Banks and Banking, Michie, vol. 5A, ch. 9, § 46, p. 115; 64 A.L.R.2d, § 31, p. 80; Longacre v. Knowles, Mo., 333 S.W.2d 67, 70; Murphy v. Wolfe, 329 Mo. 545, 45 S.W.2d 1079, 1081; Yates v. Richmond Trust Co., Mo.App., 220 S.W. 692, 693; Craig v. Bradley, 153 Mo.App. 586, 134 S.W. 1081, 1082; Ray v. Ray, Mo.App., 336 S.W.2d 731, 737; see Dalton v. American National Bank, Mo., 309 S.W.2d 571, 579.
[3] See also Princeton State Bank v. Wayman, Mo.App., 271 S.W.2d 600; Hilke v. Bank of Washington, Mo.App., 251 S.W.2d 963(4); but compare Conquerer Trust Co. v. Craig, 204 Mo.App. 650, 218 S.W. 972, 973(1).
[4] State Bank of Poplar Bluff v. Coleman, 241 Mo.App. 600, 240 S.W.2d 188, 190; Craig v. Bradley, 153 Mo.App. 586, 134 S.W. 1081, 1082; Cullum v. Rice, 236 Mo.App. 1113, 162 S.W.2d 342, 344.
[5] Schwind v. O'Halloran, 346 Mo. 486, 142 S.W.2d 55, 59; Ray v. Ray, Mo.App., 336 S.W.2d 731, 737; Ambruster v. Ambruster, 326 Mo. 51, 31 S.W.2d 28, 37, 77 A.L.R. 782; Johnson v. Johnson, Mo.App., 268 S.W.2d 439; Feltz v. Pavlik, Mo.App., 257 S.W.2d 214, 219.
[6] See V.A.T.S., civil statutes, Art. 4619, and annotations at notes 6, 7, 9, 120, 122; Art. 2578; Texas Probate Code, §§ 45, 46, V.A.T.S. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435596/ | 359 S.W.2d 23 (1962)
Anna E. POWERS, Respondent,
v.
STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE, Appellant.
No. 23619.
Kansas City Court of Appeals, Missouri.
June 4, 1962.
Rehearing Denied July 2, 1962.
Thomas F. Eagleton, Atty. Gen., Moody Mansur, Asst. Atty. Gen., Jefferson City, for appellant.
David R. Clevenger, William D. Lay, Platte City, Preston Forsee, Kansas City, for respondent.
*24 HUNTER, Presiding Judge.
This is an appeal by the State Department of Public Health and Welfare from a judgment of the Circuit Court of Platte County, Missouri, holding that the decision of appellant's director was arbitrary and unreasonable in finding that respondent, Mrs. Anna E. Powers, owned real property not furnishing shelter for her which had a current market value of $750.00 or more and hence was properly removed from the old age assistance rolls.
The pertinent evidence essentially is neither controverted nor conflicting. Anna E. Powers is seventy years of age and an unemployed widow. Prior to 1948 she inherited from her mother a tract of land near Parkville, Missouri, containing 12 acres upon which was located the old family home. At the time of the hearing this house in which she lived was sixty-eight years old, dilapidated and without plumbing, running water or modern conveniences.
In 1948, Mrs. Powers' daughter, Dorothy, became engaged to Lloyd Murray. Dorothy had been living with her mother who wanted her to continue to live near her after the marriage so that they could take care of her, take her to the grocery store, to church and do other needed things for her.
Mrs. Powers testified that upon her daughter's marriage to Mr. Murray she made them a gift of one acre ("Murray Acre") of the mentioned 12 acres on their promise that they would build a house on it, near her home.[1] It is undisputed that in 1948 the Murrays immediately took possession of this one acre and built a house on it with money that Mr. Murray borrowed from his father who mortgaged his own home to obtain it, supplemented some by money Lloyd Murray had. Mrs. Powers contributed no money or materials for this house and disclaimed any interest in it. The Murray home on the one acre tract is located about 200 feet from Mrs. Powers' home.
In 1949, about seven years before Mrs. Powers applied for old age assistance, she employed Mr. Willis, the Platte County surveyor, to survey the boundaries of the "Murray Acre". This survey is in evidence.
In 1955, upon attaining the required age of 65, Mrs. Powers applied for old age assistance. She testified that at that time she told Mrs. Younger, of the county welfare office, that she did not own the "Murray Acre" but that Lloyd and Dorothy Murray owned it. She stated she also told this to a Mrs. Listrom of that office.
In November, 1959, Lloyd tried to borrow some money on the "Murray Acre" house, and was unable to do so because Mrs. Powers had not given him a deed to the "Murray Acre". Lloyd and Dorothy then requested Mrs. Powers to furnish them with a deed to it and she did so. This deed was recorded on December 14, 1959.
This deed came to the attention of the county welfare office and on January 13, 1960, the county welfare director had Mrs. Powers in and discussed with her, her daughter, and her attorney, the effect of the deed on her old age assistance case. Mrs. Powers, her daughter, and her attorney, testified that the county director told them at that discussion that before Mrs. Powers could again be eligible for old age assistance the property would have to be transferred back to Mrs. Powers so she would be in the same status as prior to the transfer. The county director denied that this was what she told them and stated that what she said to them was, "* * * that before she *25 (Mrs. Powers) could ever be eligible again there would either be a period time consisting of five years, and I (county director) explained to you (Mrs. Power's attorney) she would have to remain in the same status as she was in prior to the transfer, which would in turn mean that the property would have to be transferred back to her. However, when that was done we discussed that the property would become an available resource."
Shortly thereafter and on February 9, 1960, the Murrays executed a deed on the "Murray Acre" to Mrs. Powers. After that deed was recorded the county director deemed the "Murray Acre" to be an available resource to Mrs. Powers which precluded her from eligibility to the old age assistance rolls. She was removed from the rolls on April 26, 1960, for this reason.
Appellant introduced into evidence at the hearing on December 13, 1960, its rule and regulation No. 13 which provides in part that when an applicant or recipient owns real estate which is not furnishing shelter and its current market value is $750 or more if the applicant or recipient is single, such property shall be considered as a resource which will render such person ineligible for public assistance.[2] Additionally, it was stipulated and agreed at the hearing by appellant's referee and respondent that the house on the one acre tract, "known as the Murray house, was paid for by the Murrays, and we can also stipulate Mrs. Powers has an available resource consisting of cash value of insurance of $434.85." (Emphasis ours.) It is also agreed by the parties that the one acre tract with the house on it was worth over $750.
Appellant's position and contention as expressed and given by appellant's state director as the controlling part of his decision and relied upon in appellant's brief is that "Claimant in 1948 attempted a gift of the property but the gift was ineffective except as between the parties and third parties with knowledge because there was no legal transfer. * * * The Division of Welfare ascertains who are the record title owners of real estate in determining eligibility for public assistance, and neither the Division of Welfare nor the Department of Public Health and Welfare does not have equity jurisdiction to consider or adjudicate contractual rights or to declare title to real estate, and, therefore, we cannot determine that real estate belongs to someone not the legal record title holder. * * * To determine title or ownership of land such question must be settled by a court of competent jurisdiction in a direct proceeding to determine such title. Considering the above * * * it ("Murray Acre" with house on it) must be considered as a resource and, therefore, claimant is ineligible to receive Old Age Assistance benefits at this time."
In his oral argument before this court appellant's counsel advised the court that "it is the policy of the director not to even consider evidence of any equitable interest but to consider only record title" in determining a claimant's resources which affect his eligibility for public assistance.
On an appeal involving the decision of the director of public health and welfare the authority of this court, as that of the circuit court, is limited to a determination from the record of the hearing whether a fair hearing was granted and whether the decision made by the director was arbitrary and unreasonable. Section 208.100(4), (5) RSMo. 1959, V.A.M.S.; Ellis v. State Department of Public Health and Welfare, 365 Mo.Sup. 614, 285 S.W.2d 634; Collins v. Division of Welfare, 364 Mo.Sup. 1032, 270 S.W.2d 817.
The division of welfare through its director by statutory authority acts in a quasi-judicial capacity in conducting hearings *26 and determining eligibility for public assistance. Section 208.010 RSMo. 1959, V.A.M.S. provides in part, "In determining the eligibility of an applicant for public assistance under this law, it shall be the duty of the division of welfare to consider and take into account all facts and circumstances surrounding the applicant, including his earning capacity, income and resources, from whatever source received, and if from all the facts and circumstances the applicant is not found to be in need, assistance shall be denied." (Emphasis ours.)
Section 208.080(3) RSMo. 1959, V.A.M.S. provides, "The director of the department of public health and welfare shall give * * * a fair hearing * * *. Every applicant * * * shall be entitled to be present, in person and by attorney, at the hearing, and shall be entitled to introduce into the record at said hearing any and all evidence, by witnesses or otherwise, pertinent to such applicant's eligibility, and all such evidence shall be taken down, preserved and shall become a part of the applicant's record in said case, and upon the record so made the director of the department of public health and welfare shall determine all questions presented by the appeal." (Emphasis ours.)
Section 208.100 RSMo. 1959, V.A.M.S. provides in part, that on appeal, "If the court shall decide for any reason that a fair hearing and determination of the applicant's eligibility and rights under this law was not granted the individual by said director, or that his decision was arbitrary and unreasonable, the court in such event shall remand the proceedings for redetermination of the issues by said director."
We have concluded that in the light of these statutes the director has failed to grant Mrs. Powers a fair hearing. The determinative question in this case concededly is whether Mrs. Powers has real estate assets (other than the home in which she lives) exceeding $750 in value. If so, she is not eligible. If not, she is eligible. This in turn requires the director to decide whether in actual fact she or the Murrays own the "Murray Acre" and the house on it, for it is admitted that the "Murray Acre" without the house is of no consequential value. As appellant stated in its brief the controlling question is "if the house built by the Murrays on respondents' land now belongs to the respondent then respondent does own real estate which renders her ineligible for public assistance under rule and regulation No. 13. On the other hand, if the Murrays are found to be the owners of the house separate and apart from the land on which it is situated (or if respondent does not own the land or the house) then respondent does not own real estate which would render her ineligible under Rule and Regulation No. 13."
In making this determination we conceive it to be the duty of the director "to consider and take into account all facts and circumstances" pertinent to the applicant's eligibility and to decide all questions inherent in determining the applicant's eligibility. We think the mentioned statutes call for no less, and that any other approach to the decision the director must make would be unrealistic, would permit uncontemplated injustices to occur, and not be what the legislature intended by these statutes.
In so saying we fully recognize the right of the director to judge the credibility of any witness, and after consideration, to disbelieve the testimony of such witness. The right of the director to determine credibility is not involved in this case for the director has made it clear that he did not undertake to consider or to pass on the credibility of all the evidence pertaining to ownership of the "Murray Acre" but rather restricted his consideration to who was the "record title holder" as shown by the county recorder's records, and that he refused to consider any other evidence for the assigned reason that a consideration of such other evidence would involve the application of equitable principles and equitable rules.
Our old age benefit statutes prescribe many eligibility requirements that must be *27 met in order for a senior citizen to be entitled either to get on, or to remain on, the eligible list. If in determining whether such requirements have been met the director in blanket manner refuses to consider and to apply established principles of law because he deems them to involve equitable considerations and refuses to consider otherwise pertinent evidence for the same reason, then we are constrained to rule that a fair hearing has not been accorded. A fair hearing contemplates more than a mere going through the ritual of permitting a claimant to be present with counsel at the hearing and to be accorded the opportunity of presenting evidence. According a fair hearing includes a proper consideration of all of the pertinent evidence rather than a refusal to consider any evidence that might call for the application of established equitable principles and rules.
For literally centuries the courts have applied equitable principles to avoid the often overly harsh, technical common law. Old distinctions between equitable and legal forms of action long ago were abolished in favor of a single form of action permitting the courts to reach a just result by the application of both legal or equitable rules as necessary to fairly decide all the questions presented by the facts. It is recognized that in no other manner could justice in the particular case be obtained. It is just as important that justice be obtained in an administrative proceeding as in a court. Our legislature is fully aware of all this. In establishing appellant department and giving it quasi-judicial authority to conduct hearings to determine eligibility for old age assistance it nowhere has indicated that appellant department in dealing with the poor of this state should limit such hearings by refusing to look to or consider any facts that might call for the application of established equitable principles of jurisprudence. Appellant is unable to cite any authority to sustain such contention as it makes, and we deem it to be without merit. Cf. Ames v. Department of Labor & Industries, 176 Wash. 509, 30 P.2d 239, 91 A.L.R. 1392.
Appellant suggests if evidence other than that of "record title" must be considered "it would make it almost impossible to honestly and effectively administer the program." We think the right of the director to weigh the evidence and to determine the credibility of the witnesses is an effective safeguard against possible fraud or dishonesty, and none such has been suggested in this case.
It is noteworthy that after appellant's director ruled against Mrs. Powers she brought suit in the circuit court against the Murrays to have the mentioned deed of December, 1959, from the Murrays to her cancelled and voided. Apparently on the evidence she presented here and which evidence the director refused to consider she obtained a judgment setting aside and voiding that deed. Over objection the circuit judge permitted that judgment to be introduced in evidence at the circuit court hearing and to be made a part of the transcript on appeal. Section 208.100(4) RSMo. 1959, V.A.M.S. provides that the appeal to the circuit court shall be tried and the cause determined upon the record of the proceedings had before and certified by the director. There is no provision for the taking of additional evidence before the circuit court. It was error for the trial court to admit or consider any evidence in the course of the submission on appeal other than the record as certified by the director. Johns v. State Social Security Commission, 235 Mo.App. 150, 143 S.W.2d 161.
On our review we have not considered this evidence not contained in the record of the proceedings certified by the director. On a redetermination of the issues on the remand of this cause to the director respondent will have ample opportunity to offer such evidence and to have it made a part of the transcript certified by the director in the event of further appeal. We do not now pass on the possible effect of such evidence.
For the reasons stated, the judgment of the circuit court reversing this cause and *28 remanding the proceedings for redetermination of the issues by the director is affirmed.
All concur.
ON MOTION FOR REHEARING:
PER CURIAM.
In its motion for rehearing appellant misconceives the effect of our opinion, contending it requires appellant in conducting hearings in public assistance cases to exercise equity jurisdiction belonging only to a court by establishing and enforcing a trust or by determining contractual or property rights as between individuals.
The legislature by statute, Section 208.010 RSMo. 1959, V.A.M.S., has clearly stated what appellant is to do, i. e., determine "the eligibility of a claimant for public assistance", and states that "In determining the eligibility of a claimant for public assistance under this law, it shall be the duty of the division of welfare to consider and take into account all facts and circumstances surrounding the claimant, including his living conditions, earning capacity, income and resources * * *."
Of course appellant cannot undertake to enter a judgment or decree as a court, determining who owns a piece of land, which judgment or decree would be binding on not only the claimant for public assistance but on others who might claim an interest in the land. This is true whether the issue of title or "resources" turns on evidence of "record title", legal rules or equitable rules.
Yet appellant can and daily does determine as between appellant and a claimant the question of his eligibility for public assistance. In making such a determination appellant does have to make incidental determinations concerning a claimant's "earning capacity, income and resources" in order to determine the ultimate fact of his eligibility or lack of eligibility for public assistance. These incidental determinations of resources and income have no legal effect on anyone other than the claimant in his claim for public assistance, and then only as an incidental determination or consideration of "facts and circumstances surrounding claimant" pertinent to his economic status.
As the statute declares, appellant must "consider and take into account all facts and circumstances", and not deliberately limit itself to a consideration of only those facts or circumstances which it believes involve the application of "legal rules" as contrasted with "equitable rules". If a claimant did not have "legal" or "record" title but was the beneficial owner of valuable property his beneficial interest is a pertinent fact and circumstance bearing on his eligibility. As stated in 81 C.J.S. Social Security and Public Welfare § 18, page 44: "* * * the word `resources' has been held to mean any property which the applicant owns legally or beneficially." (Emphasis ours.) Thus equitable rules are applied in determining a claimant is not eligible because he is the beneficial owner of resources in excess of the minimum permitted. Equitable rules are equally applicable in determining a claimant is eligible for public assistance. See, 42 Am.Jur., Public Administrative Law, Section 58, page 365; Red Rover Copper Co. v. Industrial Commission, 58 Ariz. 203, 118 P.2d 1102, 137 A.L.R. 740; Ames v. Dept. of Labor and Industries, 176 Wash. 509, 30 P.2d 231, 91 A.L.R. 1392.
Appellant also contends this applicant (and presumably all applicants for public assistance with a similar problem) should first engage in litigation in the circuit courts to establish any pertinent fact concerning his economic status that might involve "equitable" considerations and to there disavow and disclaim any interest in income or resources that an application of purely legal as opposed to equitable rules might show belong to him, including obtaining a court order setting aside any instrument of record such as that here involved.
*29 We do not find anything in the statute suggesting or requiring that a claimant for public assistance, presumably a poor person in advanced years, must first go to the expense and delay involved in employing legal counsel and engaging in litigation, requiring possibly more than one lawsuit, to establish "facts and circumstances surrounding the applicant, including his earning capacity, income and resources" (his economic situation). On the contrary the legislature throughout the entire act has evidenced regard for our elderly poor and obviously intended to establish a complete, inexpensive, and reasonably quick procedure for determining an applicant's eligibility for public assistance. This it did when it gave appellant authority to hear and determine from all the facts the question of eligibility for public assistance. It amply protected the public's interest by also giving appellant the right to weigh the evidence and to determine the credibility of witnesses.
NOTES
[1] Ten witnesses appeared at the trial prepared to testify that Mrs. Powers gave the Murrays the one acrecalled the "Murray Acre". That the Murrays paid for the construction of the house, and that Mrs. Powers did not make any financial contribution toward the construction of the house. After hearing the testimony of two of them the appellant's referee declined to receive the testimony of the other eight on the ground such testimony would be cumulative.
[2] This regulation, appellant says, is authorized by Section 208.010 RSMo 1959, V.A.M.S. providing that benefits shall not be payable to a person who "* * * has earning capacity, income or resources * * * sufficient to meet his needs for a reasonable subsistence compatible with decency and health." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435599/ | 359 S.W.2d 393 (1962)
SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation (Plaintiff), Respondent,
v.
RAWLINGS MANUFACTURING COMPANY, a Corporation, William Quigley and Richard E. Harder (Defendants),
Richard E. Harder, Appellant.
SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation (Plaintiff), Appellant,
v.
RAWLINGS MANUFACTURING COMPANY, a Corporation, and William Quigley (Defendants), Respondents.
Nos. 30943, 30944.
St. Louis Court of Appeals, Missouri.
June 19, 1962.
Rehearing Denied September 11, 1962.
*394 John Mohler, Leo E. Eickhoff, Jr., Wm. C. Sullivan, Murry L. Randall, St. Louis, for appellant Southwestern Bell Tel. Co.
Wm. J. Becker, Clayton, for appellant Richard E. Harder.
Aubrey B. Hamilton, St. Louis, for respondent Wm. Quigley.
*395 J. C. Jaeckel, St. Louis, for respondent Rawlings Mfg. Co.
WOLFE, Judge.
This is a suit to recover damages that the plaintiff sustained when its underground cables were caused to fall into an excavation made by a contractor employed by the Rawlings Manufacturing Company. The action is against Rawlings Manufacturing Company as employer, Quigley as its agent, and Harder as an employee making the excavation. There was a verdict and judgment for the plaintiff against all three defendants in the sum of $5,400.
The Southwestern Bell Telephone Company and William Quigley filed motions for a judgment in accordance with their motions for a directed verdict or, in the alternative, for a new trial. Richard Harder moved for a new trial. Harder's motion for a new trial was overruled and he appealed. The motion of Rawlings Manufacturing Company and Quigley's motion for a judgment on the pleadings were sustained and a judgment entered for them. From this the Southwestern Bell Telephone Company appealed. Both defendant Harder's appeal and the appeal of the plaintiff, Southwestern Bell Telephone Company, are herein considered.
The petition alleges that plaintiff had underground telephone conduits and cables in a public alley which adjoined the property of the Rawlings Manufacturing Company. The cables had been there since 1905 and were placed under the surface of the alley with the permission of the City of St. Louis. The Rawlings Manufacturing Company, in excavating for a basement on its own property, extended its excavation for three feet into the public alley, and the depth of the excavation was from 15 to 18 feet. The petition alleges that no permit was obtained from the Director of Streets and Sewers as required by Section 9 [Ordinance 30386], Section 92 [Ordinance 41298] of the Municipal Code of the City of St. Louis. It also alleges that the excavation was not braced or shored, in violation of Section 95 [Section 2321, Chapter 32, Article V, Revised Code 1936] and Section 107 [Ordinance 36721], Chapter 64 of the Code.
It alleges that Harder and Quigley were the agents and employees of the Rawlings Manufacturing Company, and that all of the defendants, in the exercise of ordinary care, should have known of the presence of the plaintiff's cables in the alley. The petition charges that Rawlings Manufacturing Company negligently failed to obtain a permit from the City of St. Louis as required by two of the ordinances pleaded. Quigley is charged with the same negligence, and Harder is charged with excavating without first determining if a permit had been obtained. The Rawlings Manufacturing Company is charged with the failure to require Harder to shore and brace the sides of the excavation, and Harder is charged with the failure to shore and brace the sides.
The defendant Rawlings Manufacturing Company, by their answer, denied that Quigley and Harder were their agents, and Quigley denied by his answer that Harder was his agent. Harder's answer was in the nature of a general denial.
The facts of the matter are that the Rawlings Manufacturing Company desired to erect an addition to buildings that they occupied in 1950. Architects were employed, and they prepared plans for a building 43 feet x 117 feet. On the north side of the building it was to extend 117 feet along a public alley. The west side of the building fronted on Jefferson Avenue for 43 feet, and to the south and east the new structure adjoined the existing buildings belonging to the Rawlings Manufacturing Company.
The plans called for an excavation under the proposed building and extending into a public alley upon which the Rawlings property line abutted. This "overdig" was for foundation footings which were to be put in.
The plaintiff introduced in evidence the following agreement entered into between *396 the Rawlings Manufacturing Company and J. Wm. Quigley:
"J. WM. QUIGLEY CONSTRUCTION CO.
"General Repairing
"4625 Kossuth Avenue
"St. Louis 15, Mo.
"July 10, 1950
"Rawlings Mfg. Co.,
"2703 Lucas Ave.
"St. Louis, Missouri
"Gentlemen:
"I propose to act as General Contractor and to supervise North Addition to Rawlings Manufacturing Company, as follows:
"Obtain all sub-contractors' bids
"Select bidders best suited to perform the work
"Supervise all forms of construction and installations
"Obtain all licenses and permits pertaining to the work
"Erect temporary office and tool shed
"Stake out the job
"See that all material delivered on site is stored in the most convenient place and protected from the weather
"Give all lines, levels and grades to sub-contractors
"Lay out sub-contractor's work as building progresses
"Supervise all rough carpenter work and finish carpentry
"See that all crafts carry out their portion of the work in the best workmanlike manner, according to plans and specifications by Brussel and Viterbo, Engineers
"Settle any discussions or disputes that may arise between sub-contractors due to conflicting work
"Supervise all wrecking of rear walls of building
"Supervise protecting of working area of building when north wall is removed
"See that all sub-contractor's work is properly protected, such as covering of window jams, door jams, stone sills, etc., and that all well holes and stair ways are barricaded
"I shall spend as much time as is necessary to expedite construction of North Addition to the Rawlings Manufacturing Company, this supervision time to be a minimum of four (4) hours per day while work is in progress, for a fee of 10% (ten percent) of total cost of the above mentioned addition; fee to be payable monthly as work progresses.
"Yours very truly,
"(signed) J. Wm. Quigley
"JWQ:G
"Accepted July 10, 1950
"R. M. Co.by O. D. Schnaare
"Sec."
The plaintiff also introduced in evidence a letter signed by Richard E. Harder and addressed to J. Wm. Quigley Construction Co., as follows:
"RICHARD E. HARDER
CONTRACTING CO.
"1518 Sulphur Avenue
"St. Louis 10, Mo.
"July 13, 1950
"J. Wm. Quigley Construction Co.,
"4625 Kossuth Ave.,
"Saint Louis, Missouri
"Subject: Rawlings Co., Addition
"Dear Sir:
"We propose to furnish the necessary equipment and labor for excavating the addition to the present building. This proposal includes all machine excavation, hand excavation, underpinning, removal of present concrete areaway, all back-filling, and replacing alley in rear where overdig occurs, according to plans shown me by you. This bid *397 also includes bracing of bank along the alley and Jefferson Ave. side.
"Basement is to be overdug approximately three feet.
"We will do the above mentioned work for the sum of (six thousand three hundred nineteen dollars and twenty five cents) $6319.25 "Yours truly, "Richard E. Harder Contracting Co. "(signed) Richard E. Harder
"In strict accordance with drawings dated June 20th, 1950 and specifications therefor prepared by BRUSSEL & VITERBO ENGINEERS, as per set initialed by J. Wm. Quigley, which is to remain of record with Rawlings Manufacturing Co.
"July 18th, 1950 (signed) Richard E.
Harder
"J. Wm. Quigley Construction Co.
"By (signed) J. Wm. Quigley
"Rawlings Manufacturing Company
"By (signed) O. D. Schnaare
"Secretary"
Mr. Schnaare, who was employed by the Rawlings Company in 1950, testified that after the plans were completed the company entered into the above contract with Mr. Quigley, and that Quigley selected the sub-contractors, which were approved by the architects and paid by the company.
Quigley had submitted the plans showing the "overdig" to the Building Department for the City of St. Louis and had obtained a building permit. This was the only permit applied for in connection with the work. About two weeks after the contract with Harder was signed he started the excavation.
In 1903 or 1904 the Kinloch Telephone Company had installed what was described as a multi-tile conduit in the alley in question. This installation had been made with the permission of the City of St. Louis. The conduit contained four tile ducts through which the lead-covered cables could be run. Three of the four ducts had cables running through them, and the fourth was empty. These tiles, which were laid in sections, were encased in concrete after they had been laid. The concrete covered the ducts containing the cables and was about eighteen inches below the surface of the alley, which was paved with brick. These conduits below the surface ran parallel to the Rawlings property line and about three feet four inches from that line. The concrete casing was fourteen inches wide and seventeen inches high. The Southwestern Bell Telephone Company had acquired all of the property of the Kinloch Telephone Company.
Mr. Schnaare testified that in 1946 a survey had been made of the Rawlings property and the streets and alley upon which it abutted. The survey was offered in evidence, and it showed gas and water lines under the streets but it showed nothing in the alley except a brick sewer on the far side of the alley from the defendant's property.
As the work progressed the sides of the concrete covering of the conduit came into view near the top of the excavation. The concrete strip was observed by Quigley and Harder, but they did not know what it was. The conduits remained undisturbed near the top of the side until August 27. At that time part of the wall or side of the excavation caved in and the conduit above the cave-in fell. As it fell it pulled the rest of the conduit with it down into the excavation.
There was evidence that excavation to the depth dug should have been braced to prevent the wall from caving. To the contrary defendant Harder testified that bracing was unnecessary as the ground was hard. He testified that the cave-in was caused by heavy rains.
The cables served to connect two downtown exchanges and some municipal exchange connections. This service was cut off by the fall of the conduit, and the conduit itself was rendered useless. There *398 was evidence of the damage that plaintiff suffered by reason of this, and such evidence will be set forth in a discussion of the point in relation to its sufficiency.
The plaintiff introduced four city ordinances, over the objection of the defendants. Ordinance 36721 has to do with removing the lateral support of a public street or alley by excavation along the side of such street or alley. Ordinance 41298 requires that a permit be obtained for excavating in a public alley or street and requires a deposit to assure that the street will be returned to a proper condition after the excavation has been made. Ordinance 30386 makes unauthorized obstruction, excavation, et cetera in a public street or alley a misdemeanor and prescribes punishment for its violation. Chapter XXXII, Article V, Section 2321, Revised Code 1936, City of St. Louis, provides the manner in which excavated material must be removed and that excavations shall be done in such a way as to not inconvenience the public.
As stated, the jury returned a verdict for the plaintiff against all of the defendants, and the court sustained an after-trial motion for a judgment for the defendants Rawlings Manufacturing Company and William Quigley.
We consider, first, the appeal of the Southwestern Bell Telephone Company, which, of course, was directed to the court's action in entering a judgment for the two defendants, Rawlings Manufacturing Company and Quigley. The question of their liability hinges upon whether or not Harder, who did the actual excavating, was their servant for whose negligence they were liable, or an independent contractor for whose negligence they were not liable.
The appellant Telephone Company maintains here that Rawlings Manufacturing Company is liable because they were engaged in a trespass, and that by reason of this it does not matter what the status of Harder may have been. This is asserted as being based upon the rule that one cannot escape liability for an unlawful act by employing an independent contractor to do it. Williamson v. Fischer, 50 Mo. 198. See, also, Press v. Penny & Gentles, 242 Mo. 98, 145 S.W. 458. This would of course include a trespass if it were directed by the employer. Crenshaw v. Ullman, 113 Mo. 633, 20 S.W. 1077.
It is asserted that a trespass was directed by Rawlings Manufacturing Company. This is advanced for the first time on appeal, as the case was submitted to the jury only upon the negligence of the defendant's agents in failing to shore up or brace the excavation. We fail to find any evidence of trespass being directed, but if it were present it could not be considered, for it is foreign to the theory upon which the case was tried and submitted.
It is asserted that Rawlings had a non-delegable duty to avoid causing damage to plaintiff's property. It is an established rule that an employer of an independent contractor is not liable for the torts of the contractor or his servants. There is an exception to this where the work, during its progress, creates a peculiar risk of bodily harm to others unless special precautions are taken. If the risk is such that it should be recognized by the employer and personal injury results to a third party by reason of the contractor's failure to take necessary precautions, then the non-delegable duty is imposed and the employer held liable. Stubblefield v. Federal Reserve Bank of St. Louis, 356 Mo. 1018, 204 S.W.2d 718. No such situation is here present. The relationship of an independent contractor existed between Rawlings Manufacturing Company and Quigley and Harder, and no evidence presented in any way brings into play exceptions which would make Rawlings Manufacturing Company liable for the omissions, if any, of the contractors. Williamson v. Southwestern Bell Telephone Co., Mo.Sup., 265 S.W.2d 354; Coul v. George B. Peck Dry Goods Co., 326 Mo. 870, 32 S.W.2d 758.
As for Quigley, his position was that of a general contractor charged with *399 sufficient control over the work to see that it was done according to the plans furnished by the architects. He had no control over Harder's employees, their payment, or the method of excavating. The fact that Quigley exercised a certain measure of control does not remove Harder from his status as an independent contractor and make him Quigley's agent. Quigley cannot therefore be held, under the doctrine of respondeat superior, for Harder's acts or omissions. Williamson v. Southwestern Bell Telephone Co., Mo.Sup., 265 S.W.2d 354, l. c. 358; Dulley v. Berkley, Mo.Sup., 304 S.W.2d 878; Wilkey v. Rouse Const. Co., 224 Mo.App. 495, 28 S.W.2d 674; McGrath v. City of St. Louis, 215 Mo. 191, 114 S.W. 611.
As for the ordinances and any permit required by them, there is no causal connection shown to be related to the ordinances and the damage suffered. If a permit had been obtained, it is certain that this would not have prevented the wall from caving, and neither is there any showing that such a permit would have revealed the presence of the cables. In fact, it is stated in the appellant Southwestern Bell Telephone Company's reply brief: "The liability of the defendants is not predicated upon a breach of a duty created by the City Ordinances. Their liability was based upon a breach of their common law duty to refrain from conduct of a character likely to cause injury to plaintiff's property without just cause or excuse."
For the reason stated we see no theory upon which Quigley could be held liable.
As to Harder's appeal, he does not question the sufficiency of the evidence to make a case against him. He knew from his experience in excavation work that there were underground installations of various utilities in the alleys and streets of St. Louis. He stated that the telephone conduit was exposed for about three weeks before it caved in. Harder did not know what it was, but he made no inquiry of the Telephone Company to find out if it was a conduit. He did not brace the face of the excavation. He stated that in the matter of shoring and bracing he was the one who decided whether or not it should be done, and that he was not instructed by any one in relation to it.
Harder does contend that the court erred in submitting the case to the jury on common law negligence. He states that this was a departure from the pleadings which charged a violation of the ordinances mentioned. In State v. Mayfield, 365 Mo. 238, 281 S.W.2d 9, the Missouri Supreme Court held that ordinances may be pleaded where they might make applicable a common law rule of liability, and this is apparently what the plaintiff sought to do by its petition. In the case of State v. Mayfield, supra, the court clearly stated that it was dealing only with the sufficiency of the petition. It went on to say that the question of causation and applicability of the ordinance was a matter to be determined at the trial. As we stated, the ordinances here appear to have no application to the occurrence complained of or any causal connection with it. We therefore hold that it was error to permit their introduction into evidence.
Some objections are raised as to the proof of damages, but there is no contention that the amount of $5,400 is excessive. It is contended that the proper measure of damages was not the cost of repairing the cables, but the difference between their value before and after the occurrence. If this measure had been used, there was evidence upon which the jury could have found damages in the sum of $87,221.45. Where repairs can and are effected and they are less than the difference in value before and after damage, then the cost of repairs is the measure where such repairs completely restore the damaged article to its former condition. Conner v. Aalco Moving & Storage Co., Mo.App., 218 S.W.2d 830. The proof of the cost of such repairs was made from the books of the plaintiff company, and we find no error in connection therewith.
For the reasons stated, the judgment of the trial court in favor of defendants Rawlings Manufacturing Company and *400 Quigley is affirmed; and the judgment against Harder and in favor of the plaintiff is reversed and remanded for a new trial as to this defendant on the issue of liability only.
ANDERSON, P. J., and ELGIN T. FULLER, Special Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435602/ | 359 S.W.2d 481 (1962)
Wanda L. FLY, Plaintiff-Respondent,
v.
INDUSTRIAL COMMISSION of Missouri, a division of the Department of Labor and Industrial Relations; June R. Rose, George W. Wise and Chas. E. Cates, members, and Division of Employment Security, Defendants-Appellants.
No. 8075.
Springfield Court of Appeals, Missouri.
August 14, 1962.
Gordon P. Weir and George Schwartz, Jefferson City, for Division of Employment Security.
Lloyd G. Poole, Jefferson City, for Industrial Commission of Missouri.
J. Hal Moore, Aurora, for plaintiff-respondent.
RUARK, Presiding Judge.
This is one of three companion cases (the others being Cross v. Industrial Commission, 359 S.W.2d 494, already decided by this court, and Rapp v. Industrial Commission, 360 S.W.2d 366. The cases, although not consolidated, were argued together. All three of them involve telephone operators who lost their employment with the Western Light and Telephone Company of Aurora when a switch was made to the dial system.
Claimant's employment terminated February 27, 1960. She drew unemployment compensation until July 31, 1960. The deputy determined that she was ineligible from July 31, 1960, to August 13, 1960. Appeal was made to the Appeals Tribunal. Hearing was held on September 28, 1960, and on appeal the referee made findings and decision, a portion of which we copy:
"The Referee is of the opinion that the claimant has not met the availability *482 requirements of the Law during the weeks under review. A claimant is available for work when he sincerely wants work and when he is acting reasonably in his circumstances to relieve his unemployment. It has been held that an individual who has been unemployed for a long period of time must make a greater effort to secure employment than an individual who has been unemployed temporarily or for a relatively short time. At the time of the hearing the claimant had been unemployed and claiming benefits for seven months. Notwithstanding her long period of unemployment, she made only two applications in person for work each week and she applied for work on only one day in each week. Of these applications some were made at places where she had previously applied although there was an indication that she had no prospects of securing work at those establishments. During the seven weeks under review the claimant applied for work at only eleven places. She made no inquiries for work at several factories and restaurants in the immediate area which employed many female workers. Considering all the circumstances the Referee is not convinced that the claimant, who has been unemployed for seven months, has made a reasonably active and earnest search for work in her circumstances or has done those things reasonably expected of an individual who wants to relieve his unemployment. Accordingly, the Referee finds that the claimant was not available for work from July 31, 1960 through September 17, 1960.
"DECISION:
"The determination of the deputy is affirmed. The claimant is denied benefits from July 31, 1960 through September 17, 1960."
Review having been denied by the commission, judicial review was sought in the circuit court, which remanded and reversed the decision of the commission on the stated ground that it is "unsupported by competent and substantial evidence." The case is here on appeal by the commission.
Wanda Fly is (or was at hearing date) thirty-one years old, with two children, ages eight and nine. She lives on a farm one and a half miles from Aurora. Her husband is employed in Aurora, but she has a separate automobile available to use in going to work.
Under her testimony and the weekly statements accompanying application for benefits it appears that during the period for which she has been denied eligibility she made application for employment as follows:
8-2-60 B & T (supermarket) and
Aurora Baptist Temple
8-9-60 Bon-Ton (dress shop) and
A. B. C. (retail drygoods
store)
8-?-60 Midwest Map Company and
Mid-America ("they print
advertising")
8-25-60 Midwest Map and
Mid-America
8-31-60 Aurora Funeral Home and
Ben Franklin (retail)
9-7-60 Binion's (or Benson's?) Furniture
and Hub Propane
9-14-60 Midwest Map and Aurora
Greenhouse.
All of the foregoing places are in Aurora. It will be noted that on one day each week she applied to two establishments.[1] On two successive weeks the application was made to the same two businesses. Within three weeks she again applied to Midwest Map Company, although she had been twice refused employment. Her comment on "results of contact" on the first and second inquiries *483 was "not hiring until fall." She testified that she had also applied for work at the shoe factory, although it was not shown on her weekly cards. She was not sure when she applied. She had also inquired of friends as to available work. She stated that Marionville was about five miles from Aurora. She knew there was a shoe factory there.
"Q. You haven't applied for work there?
"A. No, I didn't.
"Q. Would you accept factory work if you could get it?
"A. I don't know whether I would or not."
But upon re-examination by her attorney she stated that she would have accepted work at the shoe factory where she had applied if she could make $1 per hour.
As to wages, claimant had made $1.27 per hour. She told "the commission" she would like to have $1.25 per hour but that she would work for $1 per hour.
"Q. Now, what would have been the lowest wage you would have accepted if work would have been offered to you at any of those places [which she had listed as places she had applied]?
"A. Well, I would have liked to have had at least $1 an hour.
"Q. Well, would you have accepted anything less than that?
"A. No, I don't think I would have.
* * * * * *
"Q. Do you know the starting wages at those retail stores where you applied for work in Aurora?
"A. Nothing only the dime store which was $30 a week for six days a week, eight hours a day, and other than that I couldn't tell you, nothing else * * *. That was Ben Franklin."
However, on re-examination by her attorney?
"Q. You would have accepted employment at the Ben Franklin Store even working for $30 or $35 a week if they had an opening, isn't that true?
"A. That's right."
The law is stated in Cross v. Industrial Commission. We find no need to restate except generally, and no need to recite authority. The burden is on the claimant to prove she is available for work. And she is not to be deemed available for work unless she has been "actively and earnestly seeking work." Section 288.040(2), V.A.M.S., as amended Laws of 1957, p. 531. If there was evidence from which the commission could reasonably have found that the claimant was not actively and earnestly seeking work, but was simply "going through motions" in order to draw unemployment payments, then a court may not properly interfere with the decision even though it might have drawn a different inference from the same facts had it been faced with the determination in the first instance.
This case has some similarity to the situation in Carlton v. Division of Employment Security, Mo.App., 246 S.W.2d 388, in which case the claimant had sought work at a number of retail stores in Fredericktown. It was found, l. c. 390, "after approximately ten months of unemployment it should have been apparent to claimant that she had no reasonable prospect of employment in the stores at Fredericktown and that she should have extended her search for work to other communities or other lines of work." The circuit court reversed and remanded the award, but the St. Louis Court of Appeals reversed the circuit court. See also Wagner v. Unemployment Compensation Commission, 355 Mo. 805, 198 S.W.2d 342, 344. The whole kernel in the nut is that claimant is not entitled to draw pay because she lost her job. The compensation is payable because she can't get another one. She must really and sincerely look for the job, not wait for the job to seek her out. Nor *484 will a lackadaisical, half-hearted, or occasional effort suffice.
The claimant had a car available. The record shows that Marionville was nearby; the city of Monett was within driving range; and we think we can take judicial knowledge that Springfield is approximately twenty-six miles away and therefore, within a limited sense depending upon the type and character of employment and the amount of wages, within driving range. These facts, coupled with the fact that claimant, like her sister claimants, felt it necessary to apply for work at only two places, in Aurora, on one certain day each week, and the fact that such application was repeated at places where she had no reasonable expectation of securing employment, could have reasonably permitted the conclusion that claimant was simply "going through motions" in lieu of earnestly and actively seeking employment. For this reason the judgment of the circuit court must be reversed. It is so ordered.
STONE and McDOWELL, JJ., concur.
NOTES
[1] This also seems to be the pattern followed by the applicants in the two sister cases heretofore mentioned. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2910501/ | IN THE
TENTH COURT OF APPEALS
No. 10-05-00049-CV
Bossier Chrysler-Dodge II, Inc.
d/b/a Bossier Country,
Appellant
v.
James Riley,
Appellee
From the 77th District Court
Freestone County, Texas
Trial Court No. 03-158-A
MEDIATION ORDER
The Legislature has provided for the
resolution of disputes through alternative dispute resolution (ADR)
procedures. See Tex. Civ. Prac.
& Rem. Code Ann. §§ 154.001-154.073 (Vernon 2005 & Supp.
2005). The policy behind ADR is stated in the statute: “It is the policy of
this state to encourage the peaceable resolution of disputes . . . and the
early settlement of pending litigation through voluntary settlement
procedures.” Id. § 154.002 (Vernon 2005). Mediation is a form of ADR.
Mediation is a mandatory but non-binding settlement conference, conducted with
the assistance of a mediator. Mediation is private, confidential, and
privileged.
We find that this matter is appropriate
for mediation. See id. § 154.021(a) (Vernon 2005); 10th Tex. App. (Waco) Loc. R. 9.
The parties are ordered to confer and
attempt to agree upon a mediator. Within fourteen days after the date of this
Order, Appellant is ordered to file a notice with the Clerk of this Court which
either identifies the agreed-upon mediator or states that the parties are
unable to agree upon a mediator. If the notice states that the parties are
unable to agree upon a mediator, this Court will assign a mediator.
Mediation must occur within thirty days
after the date the above-referenced notice agreeing to a mediator is filed or,
if no mediator is agreed upon, within thirty days after the date of the order
assigning a mediator.
Before the first scheduled mediation
session, each party must provide the mediator and all other parties with an
information sheet setting forth the party’s positions about the issues that
need to be resolved. At or before the first session, all parties must produce
all information necessary for the mediator to understand the issues presented.
The mediator may require any party to supplement the information required by
this Order.
Named parties must be present during the
entire mediation process, and each corporate party must be represented by a
corporate employee, officer, or agent with authority to bind the corporate
party to settlement.
Immediately after mediation, the mediator
must advise this Court, in writing, only that the case did or did not settle
and the amount of the mediator’s fee paid by each party. The mediator’s fees
will be taxed as costs. Unless the mediator agrees to mediate without fee, the
mediator must negotiate a reasonable fee with the parties, and the parties must
each pay one-half of the agreed-upon fee directly to the mediator.
Failure or refusal to attend the mediation
as scheduled may result in the imposition of sanctions, as permitted by law.
Any objection to this Order must be filed
with this Court and served upon all parties within ten days from the date of
this Order, or it is waived.
We
abate this cause for mediation.
PER
CURIAM
Before
Chief Justice Gray,
Justice
Vance, and
Justice
Reyna
Order
issued and filed April 5, 2006
Appeal
abated
Do
not publish | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2435574/ | 359 S.W.2d 329 (1962)
James H. REARDON, Appellant,
v.
Katheryn L. REARDON, Appellee.
No. A-8997.
Supreme Court of Texas.
July 18, 1962.
Galvan & Galvan, El Paso, for appellant.
Woodard & Woodard, El Paso, for appellee.
NORVELL, Justice.
This is a divorce case in which the El Paso Court of Civil Appeals prepared a tentative opinion holding that the trial court erred in awarding to the wife all of the real property owned by the community. Being in considerable doubt as to the correctness of this holding, in view of the statement made by this Court in Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299, which was subsequently made the basis of the decision of the Eastland Court of Civil Appeals in Hellums v. Hellums, 335 S.W.2d 390, the presiding judge of the El Paso court certified the following question to us in accordance with Rule 461, Texas Rules of Civil Procedure:
"In view of the prohibition in the statute (Art. 4638)[1] did we, in our tentative opinion, err in holding that a trial court may not, in a case where the only real estate owned by the parties is not subject to partition in kind and is community realty, divest one of the parties of his title to such real estate and award to the other title to all of the community real estate as his or her sole and separate property?"
It appears from the tentative opinion accompanying the certificate that the community estate consisted of both real and personal property. All of the community real estate and a portion of the community personal property was awarded to the wife. No question as to whether the settlement decreed by the trial court was just and right is before us. We are limited to a consideration of the question propounded in the certificate.
The question assumes that a decree dividing community property between divorcing parties which awards real property to one and personal property to another operates as a technical divestiture of title to real property. It seems to be the sense of the El Paso court's tentative opinion that community personal property and community real property must be considered as two distinct interests or estates for division purposes under Article 4638. However, the *330 obvious purpose of the question is to ascertain whether or not this Court regards the proviso of the article proscribing the divestiture of title to real estate as being applicable to community property.
In Hailey v. Hailey, supra, this Court said:
"That part of Art. 4638 contained in the last sentence, which prohibits the divestiture of title by either party to real estate, has no application to community real estate but applies only to the separate property of each party."
The above statement was deliberately made by this Court after a careful consideration of the matter and we now reaffirm the position taken by us in the Hailey case. Any question as to whether the holding evidenced by the quoted portion from the Hailey case may be classified as obiter dicta is now academic. The question is squarely before us in this case and we hold that the proviso in Article 4638 "nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate" has no application to community real estate.
The question certified is answered in the affirmative.
NOTES
[1] "The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and the children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate." Art. 4638, Vernon's Ann.Tex.Civ.Stats. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435605/ | 359 S.W.2d 689 (1962)
Frederic E. VOELKER, Lucy M. Schwlenher, Haille Robinson, Forrest Boecker and Anton A. Tibbe, Appellants,
v.
SAINT LOUIS MERCANTILE LIBRARY ASSOCIATION, a corporation, First National Bank in St. Louis, a corporation, Five-Twelve Locust, Inc., a corporation, and Saint Louis Union Trust Company, a corporation, Respondents.
No. 49027.
Supreme Court of Missouri, Division No. 2.
September 10, 1962.
*690 William B. Ewald and Forrest Boecker, St. Louis, for appellants.
William Stix, St. Louis, for respondent Saint Louis Mercantile Library Association.
R. H. McRoberts and John P. MacCarthy, St. Louis, for respondents First National Bank in St. Louis, Five-Twelve Locust, Inc., and St. Louis Union Trust Company. Bryan, Cave, McPheeters & McRoberts, St. Louis, of counsel.
BOHLING, Commissioner.
This is a suit by Frederic E. Voelker, Lucy M. Schwienher, Haille Robinson, Forrest Boecker and Anton A. Tibbe, as members of the Saint Louis Mercantile Library Association, a corporation, referred to as "Library" or "Library Association," on behalf of themselves and all other members of said Library Association, against said Saint Louis Mercantile Library Association, the First National Bank in St. Louis, a corporation, referred to as "Bank," Five-Twelve Locust, Inc., a corporation, and Saint Louis Union Trust Company, a corporation, referred to as "Trust Company," to cancel a certain lease and amendment thereto by said Library of its ground and part of its building at Broadway and Locust in the City of St. Louis to said Bank on grounds that said lease and amendment are unreasonable, voidable, ultra vires, and a breach of trust by the officers, directors and trustees of defendant Library. The motions of the defendants to dismiss plaintiffs' amended petition were "sustained with prejudice on the grounds (1) that plaintiffs, and each of them, lack the legal capacity to sue, and (2) the petition fails to state a cause of action upon which relief can be granted." The plaintiffs have appealed. Defendants contend the court was correct on both rulings.
This suit was filed January 3, 1961. Plaintiffs alleged that the reasonable rental of the demised premises for a term ending July 14, 2019, had a value of more than three times the agreed-upon annual rental of $59,000. The judgment of dismissal was entered July 14, 1961. This court has appellate jurisdiction by reason of the amount in dispute at the time of the appeal. Consult Newco Land Co. v. Martin, 358 Mo. 99, 213 S.W.2d 504[1]; C. Bewes, Inc. v. Buster, 341 Mo. 578, 108 S.W.2d 66[1].
It will aid in an understanding of the issues to narrate certain facts within the allegations of the petition, the exhibits and the stipulations at this point.
By Laws 1846-47, p. 153, approved February 16, 1847, the General Assembly passed an act incorporating the "`Saint Louis Mercantile Library Association,'" expressly stating "the object of which is the establishment of a library and reading room, the collection of a scientific cabinet and apparatus and of works of art and for other literary *691 and scientific purposes." Said act provided that said corporation "shall have perpetual succession," and continued in effect the then constitution and by-laws "until regularly altered or repealed by the association."
By Laws 1850-51, p. 74, approved February 17, 1851, the "`Mercantile Library Hall Company of St. Louis,'" was created a body corporate and (§ 3) directed to expend its funds "in buying an adequate lot or piece of ground and erecting thereon a building sufficient and commodious for the use of the `Saint Louis Mercantile Library Association,' which ground and building while the same or any part thereof shall be occupied and used as a public library shall not be subject to taxation." Said act (§ 4) contemplated the lease of the ground and building to the Library, with right of subletting part of the building, and (§ 5) required the conveyance of the land and building to the Library as soon as the Library had reimbursed the Hall Company for its outlays. Section 7 of the act is more appropriately quoted later.
The Library Association acquired the real estate specifically described in plaintiffs' petition.
Under the original lease (referred to in the petition as "Exhibit A") defendant Library leased to defendant Bank, for a term beginning October 1, 1948, and ending October 1, 1952, all of the described premises with the improvements thereon, a six story and basement stone and brick building, except the sixth floor of said building, reserved by the Library, and the user of certain other portions of the building appropriate to the functioning of said Library. Said lease and an amendment thereto vested the Bank with certain options for the extension of the terms of the lease. Under an amendment of said lease, dated December 18, 1956 (referred to in the petition as "Exhibit B"), said lease was extended to terminate on July 14, 2019, and the Bank obtained Library's consent to assign the lease to the Bank's wholly owned subsidiary, Five-Twelve Locust, Inc., and to the use of the lease by the latter as security for bonds or debentures not to exceed $6,500,000, but said Bank is expressly held liable for all it obligations as lessee notwithstanding any such assignment or encumbrance. The Library, under Exhibit B, obtained an increase in the annual cash rent to $59,000 from $56,000, and more favorable provisions with respect to lessee Bank's obligations for the maintenance, repair, up-keep, et cetera, of the building, for the proper functioning of the Library, and a provision that rent should continue notwithstanding any damage to or destruction of the building.
Plaintiffs' amended petition contains allegations with respect to the facts hereinabove set forth; and in ¶ 6 thereof, among other things, alleges that defendant Library and defendant Bank entered into the lease marked Exhibit A "for a term which has been extended to terminate on July 14, 2019, that is, a term of seventy years, nine months and thirteen days. By an amendment to said lease, * * * marked `Exhibit B,' the leasehold has been assigned to defendant Five-Twelve Locust, Inc. * * * Defendant Five-Twelve Locust, Inc., has in turn assigned the leasehold to defendant Trust Company as trustee to secure an indebtedness of $6,500,000.00, due December 1, 1981, and has surrendered various portions of said leasehold to defendant Bank and defendant Trust Company."
Paragraph "7" of said petition is quoted more appropriately hereinafter.
We quote portions of plaintiffs' petition upon which they rely in their brief in support of their contention that the lease and amendment thereto are unreasonable, voidable, ultra vires and a breach of trust.
"9. The term of said lease is unreasonably long, extending far beyond the reasonably foreseeable future, and the assets of a charitable trust ought not to be tied up for such a period of time.
*692 "10. The rental payable under said lease, as amended, being fixed for the entire term thereof in the amount of some $59,000 per year, is unreasonably low for the premises let thereunder, which comprise some 70,000 square feet of very valuable downtown office and commercial space, conservatively worth more than three times the stated rental, and reasonably to be expected to increase in value as time goes on.
"11. The terms of said lease, as amended, are unreasonable in that there is included no `escalator clause,' that is, no clause providing for an adjustment in the amount of rent commensurate with changing price levels and other circumstances affecting the rental value of the premises. * * *
"12. Said lease, as amended, contemplates the alteration of the entire structure let thereunder to meet the special requirements of defendants Bank and Trust Company, rendering the premises unsuitable for use by any other tenants, without any provision for defendants to pay the cost of further altering the building so as to render it suitable for general use in the event the tenancy of defendants is terminated. * * *
"13. Said lease and the amendment thereto were not approved by a lawfully constituted Board of Trustees as required by the Act of March 28, 1874, which provides in part: `The real estate belonging to said corporation shall be managed and controlled, except as hereinafter mentioned, by a board of five trustees, members of said corporation who shall be elected at any annual meeting, or any meeting specially called for that purpose. * * * No conveyance in fee, mortgage, or deed of trust in the nature of a mortgage, nor lease for a longer period than ten years, shall be made of any real estate belonging to said corporation, unless the same shall be ordered to be made by the board of directors, three-fourths of the whole number of the members composing said board voting therefor, nor unless the same shall also be concurred in by at least four of said board of trustees, * * * and any vacancy caused by death, resignation, removal from the County of St. Louis, incapacity to serve as such trustee, shall be filled by the remaining trustees.' (Emphasis supplied.)[1] On the occasion of the purported approval of said lease, Exhibit A, and on the occasion of the purported approval of the amendment thereto, Exhibit B, there existed a vacancy on said board which had not been filled by the remaining trustees.
"14. The election by defendants to extend the term of said lease from the original stated term to the present term of seventy years, nine months and thirteen days, has never been approved by any board of trustees.
"15. The members of the boards of trustees which purported to approve said lease and said extension thereto, acted adversely to the best interests of defendant Library and its members who are the beneficiaries to whom said trustees owed a fiduciary duty. Said boards of trustees in breach of said fiduciary duty acted in furtherance of their own personal interests in approving said lease and amendment and to the disadvantage of plaintiffs and the class represented by plaintiffs, in that members of said boards had an interest in defendants Bank and Trust Company, as did members of the families by blood and marriage of certain members of said boards."
Paragraph 16 alleges that plaintiffs called the attention of the officers, directors and members of defendant Library to the infirmities of said lease and amendment at an annual meeting, and that said officers, directors and members have refused to take any action on behalf of defendant Library and its members.
Defendants say with respect to the ground plaintiffs lack the legal capacity to sue in *693 their motions to dismiss that plaintiffs are bound upon this review by the allegations and admissions in their amended petition.
The sufficiency of a petition upon a motion to dismiss must be determined by the facts alleged in the petition. Klorner v. Nunn, Mo., 318 S.W.2d 241, 246[4]; Frazier v. City of Rockport, 199 Mo.App. 80, 202 S.W. 266, 267[2]; 5 C.J.S. Appeal & Error § 1482, p. 759; 71 C.J.S. Pleading § 256, pp. 496, 497. We stated in Williams v. St. Louis Public Service Co., 363 Mo. 625, 253 S.W.2d 97, 104[9]: "`We will not review a case upon a theory different from that upon which it was tried in the circuit court. Litigants are not permitted to blow both hot and cold in the same case, even in different court.' Smithpeter v. Wabash R. Co., 360 Mo. 835, 231 S.W.2d 135, 146, 199 A.L.R. 2d 950, and cases cited." See 71 C.J.S. Pleading § 59a, p. 147.
State ex rel. Buder v. Brand, 305 Mo. 321, 326, 265 S.W. 989, 990[2, 3], states in part that it is not enough that plaintiff "alleges a cause of action existing in favor of someone; he must show that it exists in favor of himself, and that it accrued to him in the capacity in which he sues." 71 C.J.S., Pleading, § 71a.
The following allegations of plaintiffs' amended petition are pertinent to this issue:
"7. By the terms of its charter, defendant Library is operated for charitable purposes, to-wit: `The establishment of a library and reading room, the collection of a scientific cabinet and apparatus and works of art and for other literary and scientific purposes,' and its assets, including the above-described real estate, are a trust res, held for the benefit of plaintiffs and all other present and future members of defendant Library."
And, so far as material in ¶ 9, quoted in full supra: "The term of said lease is unreasonably long, * * * and the assets of a charitable trust ought not to be tied up for such a period of time."
And, the opening paragraph of plaintiffs' brief states they represent a class "consisting of members of defendant St. Louis Mercantile Library Association, a charitable trust chartered by special acts of the Missouri Legislature."
Plaintiffs' petition thus designated defendant Library Association as "a charitable trust," affirmatively alleged that it is a corporation "operated for charitable purposes," setting out the same objects and purposes of its operation as are stated in the act of its incorporation (Laws 1846-47, p. 153, supra) and alleged that its assets "are a trust res" held for the benefit of an indefinite number of beneficiaries.
Scott, Trusts, 2d ed., Vol. 4, § 370, p. 2640, states: "A trust is a valid charitable trust as one for the advancement of education although it is not connected with an educational institution. Thus trusts to establish or maintain public libraries * * * are charitable." Consult Parsons v. Childs, 345 Mo. 689, 136 S.W.2d 327[5]; Bogdanovich v. Bogdanovich, 360 Mo. 753, 230 S.W.2d 695[2]; 14 C.J.S. Charities § 15, p. 446. The purposes of defendant Library set forth in the act of its incorporation (Laws 1846-47, p. 153) and quoted in ¶ 7 of plaintiffs' petition are "charitable purposes."
Plaintiffs' petition states defendant Library's assets "are a trust res, held for the benefit of plaintiffs and all other present and future members of defendant Library." The beneficiaries of the "trust res" are indefinite. Newton v. Newton Burial Park, 326 Mo. 901, 34 S.W.2d 118, 120, 121, quotes from Ruling Case Law, Charities, § 3, so far as material: "`a gift is a "public" charity when there is a benefit to be conferred on the public at large, or some portion thereof, or upon an indefinite class of persons. Even if its benefits are confined to specific classes, as decrepit seamen, laborers, *694 farmers, etc., of a particular town, it is well settled that it is a public charity. The essential elements of a public charity are that it is not confined to privileged individuals, but is open to the indefinite public. It is this indefinite, unrestricted quality that gives it its public character. * * * [A]s long as the classification is determined by some distinction which involuntarily affects or may affect any of the whole people, although only a small number may be directly benefited, it is public.' (Italics ours.)" See also 4 Scott, supra, § 364, p. 2614; Charities, 10 Am.Jur., § 5, nn. 4, 10; 14 C.J.S. Charities §§ 12, 37-39.
The General Assembly considered and intended defendant Library to be a public charitable corporation. See Laws 1846-47, p. 153, stating the purposes of defendant Library. Laws 1850-51, p. 74, incorporating the Mercantile Library Hall Company, provided that the funds of said Hall Company be used for acquiring ground and erecting a building thereon for defendant Library, and that (§ 3) said "ground and building while the same or any part thereof shall be occupied and used as a public library shall not be subject to taxation"; and (§ 7): "This act shall be a public act and shall be construed benignly and favorably in all courts and places for every beneficial purpose herein intended * * *." (Emphasis added.)
The defendant St. Louis Mercantile Library Association is, for the purposes of this suit, subject to the principles applicable to charitable trusts.
"The owner of property may devote it to charitable purposes not only by transferring it to trustees in trust for such purposes, but also by transferring it to a charitable corporation." 4 Scott, supra, § 348.1, p. 2553. 2 Restatement, Trusts, 2nd, § 348f, pp. 211, 212. "Certainly many of the principles applicable to charitable trusts are applicable to charitable corporations. In both cases the Attorney General can maintain a suit to prevent a diversion of the property to other purposes than those for which it was given; and in both cases the doctrine of cy pres is applicable." Scott, Id., nn. 2, 3; see also § 391, p. 2753; Restatement, Id., p. 212.
In Tyree v. Bingham, 100 Mo. 451, 465, 466, 13 S.W. 952, 954, 955, the court had before it a private corporation incorporated March 27, 1867, under Laws 1865-66, p. 69, for the benefit of the orphans and widows of Missouri Confederate soldiers "who perished in the late war." Contributing members sought to recover corporate funds alleged to have been misappropriated. The court held the charity to be a private one, as its beneficiaries were capable of definite ascertainment, "And it follows that, not being trustees of and having no interest in the fund, except the sentimental one that every person who contributed to it may be presumed to have, that it should be applied to the purpose for which it was contributed, they [contributing members] have no such interest in the fund, and sustain no such relation to it, as to give them a cause of action for its misappropriation." The court distinguished between the position of the plaintiffs as members of a benevolent corporation (without capital stock) organized purely for the benefit of others, and the position of stockholders of a business corporation with capital stock who have a pecuniary interest in the assets of the corporation.
Smith v. Board of Pensions of the Methodist Church, Inc., D.C., 54 F. Supp. 224, 237, was a class action by pensioners of defendant charitable corporation, challenging the legality of a charter amendment by defendant enlarging its class of beneficiaries. The court held plaintiffs had no vested interest in the trust fund: "It is evident that the creators of this trust retained control of this trust at all times. They determined who should be admitted to the pension rolls and could have removed pensioners from the rolls. Furthermore, we have been cited to no case where the management of a trust of this character was by law or implication *695 relegated to the will of those enjoying its benefits."
In Thatcher v. City of St. Louis, 343 Mo. 597, 122 S.W.2d 915[1], descendants of sisters of Bryan Mullanphy sued to terminate his testamentary trust on the ground that the purposes of the trust had long since failed. The Attorney General, made a party defendant, employed counsel to represent him, and the court dismissed plaintiffs' bill, preserving the trust. That trust was not for the public at large. See Thatcher v. Lewis, 335 Mo. 1130, 1136, 76 S.W.2d 677, 678. Counsel for the Attorney General sought to be allowed fees out of the trust fund. We denied the allowance, stating in part: "Respondents correctly state that the Attorney General was a necessary party. Lackland v. Walker, 151 Mo. 210, 52 S.W. 414; Dickey v. Volker, 321 Mo. 235, 11 S.W.2d 278, 62 A.L.R. 858"; and (122 S.W.2d 916[2]) held that the representation of the interest of the public in the enforcement of public charitable trusts was a duty directly pertaining to the office of the Attorney General. See RSMo 1959, V.A.M.S. § 27.010.
Dickey v. Volker, supra, 321 Mo. 235, 11 S.W.2d 278, 280, 281[2], involved a trust for the public generally and held that any action for the mismanagement or misuse of the trust funds "must be taken by the Attorney General as representative of the public." See the authorities reviewed in the Dickey case, supra, 11 S.W.2d at page 282 et seq.; Parsons v. Childs, 345 Mo. 689, 136 S.W.2d 327[7, 8]; Murphey v. Dalton, Mo., 314 S.W.2d 726[1, 2], 67 A.L.R. 2d 1278; Scott, Trusts, 2d ed., § 391, p. 2753; Restatement, Trusts, 2nd, § 348f, p. 212, and 3 Restatement, Id., appendix, p. 570, citing cases.
Bogert, Trusts and Trustees, 1953, Vol. 2A, § 414, p. 277, states that courts usually require suits for the enforcement of charitable trusts to be "brought by the established representative of the charity, namely, the Attorney General, so that the trustees may not be vexed by frequent suits, possibly based on an inadequate investigation, and brought by irresponsible parties."
The members of the St. Louis Mercantile Library Association have the right to participate in the charitable use, but that is not a pecuniary interest in its corporate assets.
Plaintiffs state Laws 1846-47, p. 153, made defendant Library Association a body corporate for the purpose of establishing a library and reading room, etc., and continued in effect its then constitution and by-laws until altered or repealed by the association. To escape the binding effect of their specific allegations that defendant Library Association is a "charitable trust," "operated for charitable purposes," and that its assets "are a trust res" held for the benefit of an indefinite number of beneficiaries, plaintiffs seek to distinguish this case from Dickey v. Volker, supra, by the following provisions for membership in defendant Library Association: "[F]irst, that there were, indeed, restrictive provisions for membership; second, that membership was under the control of the Association; third, that memberhip required the payment of a cash fee; and, fourth, that enjoyment of the Library's facilities was limited to members."
1st. The restrictive provisions for membership.
The constitution in effect in 1847 contemplated that the regular members of the Library Association should be persons engaged in mercantile pursuits; but it also provided for "honorary members" and members "not engaged in mercantile pursuits" and life membership without restriction as to occupation. Since 1925, however, and at the time of the institution of this suit, the Association was to be composed of persons engaged in mercantile pursuits and other persons, without restriction as to occupation so far as disclosed by the record presented, all being subject to approval by the "Board of Direction."
*696 It is stated in 10 Am.Jur., Charities, § 5, nn. 4, 10: "A public charity is one in which there is a benefit to be conferred on the public at large, or some portion thereof, or upon an indefinite class of persons. * * * A charity may restrict its admissions to a class of humanity and still be public. * * * [A]nd as long as the classification is determined by some distinction which involuntarily affects or may affect any of the whole people, although only a small number may be directly benefited, it is public." See Newton v. Newton Burial Park, 326 Mo. 901, 34 S.W.2d 118, 120, 121, quoted supra.
Bader Realty & Inv. Co. v. St. Louis Housing Authority, 358 Mo. 747, 217 S.W.2d 489, 491, states: "To be eligible for tenancy families must be living in sub-standard accommodations, and must be of low income as per regulations adopted by Housing Authority." And (217 S.W.2d loc. cit. 493[4]): "To us the conclusions seem inescapable and we rule that all the property of Housing Authority is exclusively used for purposes purely charitable * * *." In Buckley v. Monck, Mo., 187 S.W. 31[4], a testamentary trust "for the use of wornout preachers in M. E. Church in North Mo. Conference" was considered a valid charitable trust, although "at the time of the trial there were 26 worn-out preachers in the Missouri Conference." Consult, among others, the trusts involved in Missouri Goodwill Industries v. Gruner, 357 Mo. 647, 210 S.W.2d 38[4-6]; Salvation Army v. Hoehn, infra.
2nd. The contention that membership is under the control of the Association.
It is stated in 10 Am.Jur., Charities, § 135, p. 685: "Moreover, the facts * * * that no person has individually a right to demand admission, and that the trustees of the hospital determine who are to be received does not render it the less a public charity."
In Salvation Army v. Hoehn, 354 Mo. 107, 188 S.W.2d 826, women and girls desiring to live in the 13-story "Evangeline Residence" of plaintiff were required to make out and file a written application therefor and if accepted were subject to stated charges for board, lodging, etc. The court stated (188 S.W.2d page 827): "The Evangeline Residence is not open to the public. Occupants are selected on the basis of facts stated in the application." The Evangeline Residence was held used for "charitable purposes." (188 S.W.2d page 831[7].) In Buchanan v. Kennard, 234 Mo. 117, 136 S.W. 415, 37 L.R.A.,N.S., 993, the testamentary trust involved resulted in the erection of Barnes Hospital in St. Louis "for sick and injured persons, without distinction of creed, under the auspices of the Methodist Episcopal Church South of the United States, or its successors, and under such rules and regulations as said trustees and their successors shall from time to time establish and maintain," (234 Mo. 127 (1st), 136 S.W. 416(1)) and was sustained as a public charity, over the contention "that the trustees are given such power as would authorize them to select the rich as patients and exclude the poor." (234 Mo. 137-142, 136 S.W. 420-422.) Note the powers of the board of directors in Taylor v. Baldwin, 362 Mo. 1224, 247 S.W.2d 741, 746, and see Musser v. Musser, 281 Mo. 649, 221 S.W. 46, 51.
3rd. The contention that membership requires the payment of a cash fee.
American Jurisprudence, supra, § 64, p. 631, states: "The fact that such an institution [educational] requires its students to pay tuition does not change its character as a charitable institution." And, Id., § 135, p. 685: "Moreover, the facts that a corporation, established for the maintenance of a public hospital, by its rules requires of its patients payment for their board, according to their circumstances and the accommodation they receive, * * * do not render it the less a public charity." The St. Louis Housing Authority charges low rent. Bader Realty & Inv. Co. v. St. Louis Housing Authority, supra, 217 S.W.2d *697 loc. cit. 491. The Salvation Army charges for board and lodging in the Evangeline Residence. Salvation Army v. Hoehn, supra. Scott, Trusts, 2d ed., § 376, p. 2724, states trusts may be charitable notwithstanding provisions that the beneficiaries or some of them are to contribute to the expense of maintaining the institution. "The question is not whether the institution may receive a profit, but what disposition is to be made of the profit, if any, which may be received. If the profits are to inure to the benefit of individuals, the institution is not charitable. But if the profits, if any, are to be applied wholly to charitable purposes, the institution is charitable." See also "4th," infra.
4th. The contention that the enjoyment of the library facilities is limited to members. We consider this contention answered by holdings that it is not necessary that a charity be for the benefit of the public at large where its membership is open to an indefinite number of the public; and, so far as involved on this review, defendant Library Association, which admittedly is incorporated, is a charitable corporation. See also Scott, supra, § 370.5, p. 2647, stating: "On the other hand, a trust is none the less charitable although it is for the benefit of a private educational institution, provided that it is not a proprietary institution. The fact that the institution is not conducted by the government, and the fact that all of the members of the public are not accepted as students in the institution, does not prevent it from being a charitable institution." In Fordyce v. Woman's Christian National Library Ass'n, 79 Ark. 550, 96 S.W. 155, 7 L.R.A.,N.S., 485, any woman might become a member by paying an annual initiation fee of $2.00 and monthly dues of 25¢ persons of either sex might become honorary members for life on payment of $50.00; and any one could become a life patron for $250.00. The Library had no capital stock. There was no provision for dividends or profits. The court held it was organized for purely charitable purposes. See also Minns v. Billings, 183 Mass. 126, 130-132, 66 N.E. 593, 595, 5 L.R.A.,N.S., 686.
Plaintiffs' case of Lilly v. Tobbein, 103 Mo. 477, 487(3), 15 S.W. 618, was a suit to establish a rejected will giving property "to the Catholic church at the city of Lexington," Missouri, an unincorporated association, by the trustees and other members of the church for themselves and all other members of the association. The court stated: "The statute allows `any person interested in the probate of a will' to prosecute a suit * * * to have one proved which has been rejected by the probate court" (see RSMo 1889, § 8888); and, although the action was one at law, applied the equity rule that one or more members of a voluntary association could sue for and in behalf of all the members.
Plaintiffs' case of Harger v. Barrett, 319 Mo. 633, 5 S.W.2d 1100, 1101, 1102, in which the Attorney General was made a party defendant, was an action to quiet title under RSMo 1919, § 1970 (now RSMo 1959, § 527.150), involving a devise to "the Pleasant Ridge Baptist Church for the erection or improvement of a church house and what is not needed for the purpose to be used as may be directed by said church," plaintiffs suing for themselves and all other members of said church. The only citation on the issue here presented is Lilly v. Tobbein, supra. In the Harger case (as in the Lilly case under RSMo 1889, § 8888) any party claiming any interest in real property under said § 1970 was entitled to an adjudication of his interest, and if he have no interest the court should so adjudge and decree. Pettus v. City of St. Louis, 362 Mo. 603, 242 S.W.2d 723, 729[6], and cases cited. Scott, supra, § 391, p. 2759, nn. 22, 23, cites the Harger case under the subject "Persons having special interests," stating: "There are other situations where the matter [party having a special interest] is more doubtful. It would seem, however, that where a charitable trust is created for the benefit of a small class of persons, any member of the class cap *698 maintain a suit on behalf of himself and the other members of the class for the enforcement of the trust. * * * When a person having a special interest in the performance of a charitable trust brings suit for the enforcement of the trust, the Attorney General is ordinarily a necessary party to the suit, since his presence is necessary for the protection of the interests of the community in the performance of the trust."
Holman v. Renaud, 141 Mo.App. 399, 125 S.W. 843, 844, 845(2), involved a testamentary gift to trustees for "erecting a Memorial Union Chapel to be used for religious purposes by the several evangelical denominations" in a specified vicinity. Plaintiffs sued on behalf of themselves and others alleging they were "resident property owners of Watkins township in Dent county in the vicinity of the proposed location of the chapel." The court pointed out that the beneficiaries of the trust were "the church organizations of that vicinity included in the designation `evangelical denominations,'" not the property owners in that vicinity, and the precise holding was that plaintiffs' petition showed on its face plaintiffs had no right to maintain the suit. The observations of the judge in the next paragraph of that opinion, quoted in part by plaintiffs, are favorable to defendants under the definition of a public trust therein (whether precisely correct or not) in that, briefly stated, the identity of the future beneficiaries of defendant Library Association cannot be ascertained with certainty, and the judge's view, in such event, that the suit should be brought by the Attorney General.
Defendant Library Association in the case at bar is not a voluntary association, but a public charitable corporation organized by special act of the General Assembly. Plaintiffs, who are appellants, have filed no reply brief. We conclude their presentation does not establish error in the trial court's holding "that plaintiffs, and each of them, lack the legal capacity to sue." If they do not have the legal right to sue, it logically follows that "the petition fails to state a cause of action upon which relief can be granted" to plaintiffs.
The judgment is affirmed.
BARRETT and STOCKARD, CC., concur.
PER CURIAM.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All of the Judges concur.
NOTES
[1] Emphasis supplied by pleader. Reference is to Laws 1874, pages 203, 204. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435702/ | 359 S.W.2d 543 (1962)
John P. WAGNER, Appellant,
v.
SHEETS & WALTON DRILLING COMPANY et al., Appellees.
No. 3739.
Court of Civil Appeals of Texas, Eastland.
July 13, 1962.
Rehearing Denied September 7, 1962.
Perkins, Bezoni, Kirwan & McWhorter, Midland, for appellant.
Harrell & Thompson, Breckenridge, Culton, Morgan, Britain & White, Amarillo, for appellees.
This is an appeal from a judgment which denied relief sought by plaintiff, John P. *544 Wagner, to equitably impress an overriding royalty reservation in an assignment of a December 7, 1953, oil and gas lease on an oil and gas lease covering the same land which was procured on January 6, 1959.
The December 7, 1953, lease was from D. R. Wright and wife as lessors to Mrs. O. H. DeGrazier as lessee covering all of the south one-half and the northwest one-fourth of Section 4, Block 3, S. P. Ry. Co. land in Stephens County, and was for a primary term of five years, expiring December 7, 1958. The lease contained the following provision:
"Notwithstanding anything to the contrary expressed herein, it is agreed and understood that upon the expiration of the primary term hereof, each producing well located on said land will perpetuate this lease as to 40 acres of land, and no more, lessor shall execute and deliver a release hereof as to all acreage not so held by production."
This lease ultimately became vested in Sheets & Walton Drilling Company, defendants herein, subject to a 3/32nds overriding royalty interest, owned and held by grantees or assignees holding under Mrs. DeGrazier. When Mrs. DeGrazier assigned the lease in February of 1956, she reserved a 3/32nds of 7/8ths overriding royalty. No provision of the assignments executed by her indicated that assignees were obligated to maintain the lease in force beyond its original term.
This suit was originally brought by Mrs. Walter B. Smith against Sheets & Walton Drilling Company. Mrs. Smith was an assignee of 2/32nds of the overriding royalty interest reserved by Mrs. DeGrazier, but pending litigation John P. Wagner acquired Mrs. Smith's overriding royalty interest and was substituted as plaintiff. The remaining portion of the overriding royalty interest reserved by Mrs. DeGrazier is not here in controversy.
Prior to the end of the primary term of the 1953 lease on December 7, 1958, Sheets & Walton had drilled a well on the northwest one-fourth of the southwest one-fourth of Section 4 which was included in the lease. Although the well first produced oil, it was not in merchantable quantities and the well was plugged back and completed as a gas well capable of producing gas, and was shut-in as a gas well.
On January 5, 1959, Sheets & Walton, the owners or assignees of the 1953 lease, executed a release on all the land covered by such lease "except insofar as said lease covers a 40 acre tract around a shut-in gas well located on said property, the 40 acre tract being decribed as the northwest one-fourth of the southwest one-fourth of said Section 4." On January 6, 1959, Wright and wife executed to Sheets & Walton a new lease covering all the south one-half and the northeast one-fourth of Section 4, which is the same land described in the 1953 lease. They later executed a substitute lease bearing the same date, but which was not executed until December 14, 1959.
Prior to the expiration of the primary term of the 1953 lease W. W. Walton, who was one of the partners of Sheets & Walton Drilling Company, began negotiations with Mr. and Mrs. Wright to acquire a lease covering the same acreage as was contained in the 1953 lease in such form as to allocate the number of acres to the gas well as promulgated by the Railroad Commission of Texas in order to permit full allowable to be produced from the gas well. On September 23, 1959, Sheets & Walton Drilling Company, by letter agreement, sold to Texoma Production Company, among other leases, the oil and gas lease dated December 7, 1953, from D. R. Wright and wife to Mrs. O. H. DeGrazier and the oil and gas lease dated January 6, 1959, from D. R. Wright and wife to Sheets & Walton Drilling Company.
It is undisputed that Sheets & Walton Drilling Company at all times down to and including the date of the execution of their assignment to Texoma Production Company recognized the overriding royalty interest *545 in question as being outstanding. The evidence also shows that Texoma Production Company at all times material hereto knew that the overriding royalty was outstanding and that Sheets & Walton Drilling Company recognized same. The question presented is whether the 1953 lease and the overriding royalty interest of appellant has terminated as to all of the land described therein except the northwest one-fourth of the southwest one-fourth of Section 4 upon which the gas well is located, or whether appellant's overriding royalty interest should be and is by equity impressed upon all the acreage described in the 1953 and the 1959 leases.
In our opinion the trial court did not err in failing to impress appellant's overriding royalty interest on those portions of the lands covered by the 1959 lease except the 40 acres upon which the gas well was located. Substantially the same question was before this court in Thomas v. Warner-Quinlan Company, Tex.Civ.App., 65 S.W.2d 321, (Writ Ref.). In that case Judge Funderburk speaking for the Court stated as follows:
"Defendant in error, having committed no wrong as against plaintiffs in error, no constructive trust could arise out of the act of taking the new lease. The parties occupied no fiduciary relation, at least none looking beyond the natural terms of the leases assigned under the contract. We therefore conclude that the plaintiffs owned no interest in the production from the 140 1/8-acre tract under the new lease."
In 3 Summers Oil & Gas, Section 554, it is stated as follows:
"While the right to overriding royalty, or a sum of money paid out of production of oil or gas, created in the assignment, does not survive the termination of the assigned lease, yet in a number of cases the assignor has claimed that the assignee, by permitting the lease to expire, or by surrender thereof, and the taking of a second lease from the lessor, has violated a relation of trust and confidence, and that the assignor should be entitled to such overriding royalty or money out of production under the renewal lease. The mere assignment of an oil and gas lease creates no such fiduciary relation. If it is created, it must be by the terms of the assignment. In a number of cases the courts have held that the provisions of the assignment did not create a fiduciary relation between the parties so that the assignor would be entitled to the payment of overriding royalties or other sums out of oil or gas produced under a second lease taken by the assignee."
Numerous other cases and authorities are to the same effect and we have found none to the contrary.
By the terms of the 1953 oil and gas lease it would have expired in the absence of production at the end of the primary term. It was further provided that even in case of production at the expiration of the primary term each producing well would perpetuate the lease as to 40 acres and no more. The continuation of the overriding royalty depended upon the continuation of the lease. There was no provision in the assignments executed by Mrs. DeGrazer in 1956 under which appellees hold, and in which Mrs. DeGrazier retained the overriding royalty interest held by appellant, which required her assignee to maintain the 1953 lease in force beyond its primary term. In none of the assignments under which Sheets & Walton Drilling Company hold was there any provision that the overriding royalties theretofore retained should be continued in any new leases, if any, that might be obtained on said lands. When Sheets & Walton permitted the 1953 lease to expire and released same except insofar as said lease covered the 40 acre tract around the shut-in gas well in question and then secured a new lease on all the land covered by the 1953 lease they *546 were doing no more than that which they had the right to do under the 1953 lease and the assignments under which they held. The 1953 lease had by its own terms and by the executed release expired, except as to the 40 acre tract around the gas well. As to that 40 acres "and no more" the lease was by its terms perpetuated. The execution of the 1959 lease covering the same land was not an extension of the previous lease, although it did, in effect, recognize its perpetuation insofar as the 40 acre tract was concerned. True, it would have been greatly to the advantage of the holders of the overriding royalty interest for the 1953 lease to be perpetuated in toto or that such overriding royalty be continued in effect as to all lands covered by such lease in any new lease agreement. The holders of the 1953 lease, however, had no such obligation. There was no fiduciary relationship between the parties which required the holders of that lease to maintain it or the overriding royalty interest of appellant in force as to all the land involved therein. See Montgomery v. Phillips Petroleum Company, Tex.Civ.App., 49 S.W.2d 967, (Writ Ref.); Shropshire et al. v. Hammond, Tex.Civ.App., 120 S.W.2d 282.
We cannot agree with appellant's contention that the fact that Sheets & Walton Drilling Company recognized that the overriding royalty interest was outstanding created a confidential relationship by reason of which equity would impress the new lease with their overriding royalty. Actually both Sheets & Walton Drilling Company and their assignee, Texoma Production Company, still recognize the overriding royalty insofar as it concerns the 40 acre tract perpetuated by the shut-in gas well under the provisions of the 1953 lease. The fact that Mr. Walton of Sheets & Walton Drilling Company may have been of the opinion that the legal effect of the transactions shown by the evidence was that appellant's overriding royalty applied to all the land covered by the new lease is not controlling. The controlling considerations are the provisions of the leases and assignments here involved. This is not a case in which the parties have acted upon their interpretation of an ambiguous instrument. The provisions of the original lease and assignments under it are not ambiguous and plainly show that the 1953 lease has expired except as to the 40 acre tract. There is no provision for the overriding royalty in the new lease. We hold that there was no confidential relationship between the parties which would impress such lease with the overriding royalty with which the 1953 lease was burdened. Appellant's points are overruled.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435706/ | 359 S.W.2d 312 (1962)
STATE BOARD OF INSURANCE of the State of Texas et al., Appellants,
v.
PROFESSIONAL AND BUSINESS MEN'S INSURANCE COMPANY, Appellee.
No. 11005.
Court of Civil Appeals of Texas, Austin.
July 11, 1962.
Rehearing Denied August 1, 1962.
*313 Will Wilson, Atty. Gen., Bob E. Shannon and Dudley D. McCalla, Asst. Attys. Gen., Heath & Davis, Austin; Fulbright, Crooker, Freeman, Bates & Jaworski, Olan B. Lowrey and W. H. Vaughan, Jr., Houston, for appellants.
Frank G. Newman, Dallas; Jake Jacobsen, Austin, for appellee.
RICHARDS, Justice.
This is an appeal from an order of the 53rd Judicial District Court of Travis *314 County granting a temporary injunction enjoining and restraining the State Board of Insurance, composed of Ned Price, Durwood Manford and Joseph Trosper, appellants, from issuing any license or certificate of authority to Professional Investors Insurance Company (or Allied Investors Insurance Company) to transact insurance business in Texas. Professional Investors Insurance Company (or Allied Investors Insurance Company) having intervened as a party defendant is also an appellant herein. For brevity the State Board of Insurance will be hereafter referred to as the "Board", Professional Investors Insurance Company (or Allied Investors Insurance Company) will be referred to as "intervenor" and Professional and Business Men's Insurance Company will be referred to as "appellee".
Suit was filed by appellee under the provisions of Article 1.04, Texas Insurance Code, Vernon's Civil Statutes, as an appeal from an order of the Board approving the issuance of a charter to intervenor, which had previously been approved by the Commissioner of Insurance. At the time the suit was filed the Trial Court issued a temporary restraining order enjoining the Board from issuing a certificate of authority to intervenor. At the hearing on the temporary injunction, both the Board and intervenor having filed pleas to the jurisdiction of the Court to enjoin the validity of the Board's order, the Trial Court overruled the pleas and granted the temporary injunction. The Board and intervenor have duly perfected their appeals from the order granting the temporary injunction.
A summary of the factual situation which existed at the time of the temporary injunction hearing reveals that on January 17, 1962, an application for a charter in the name of Professional Investors Insurance Company was filed by intervenor with the State Board of Insurance pursuant to Art. 3.04, T.I.C. On January 29, 1962 a public hearing upon the application was held by the Commissioner of Insurance, hereinafter referred to as Commissioner, at which time appellee, Professional and Business Men's Insurance Company, intervened and objected to the issuance of a charter to intervenor on various grounds, one of which was that the name Professional Investors Insurance Company was so similar to the name of appellee as to likely mislead the public contrary to Sec. 1, Art. 3.02, T.I.C.
After the hearing the Commissioner entered an order on February 6, 1962 approving the application, directing that the articles of incorporation be submitted to the Attorney General of Texas for his approval and upon approval of the application and upon compliance by the company with Arts. 3.04 and 3.06, T.I.C., an examination of the company would be conducted but that the certificate of authority to transact business would be issued only after further order by the Commissioner after an examination of the company according to the provisions of Art. 3.06, T.I.C. from which order appellee gave notice of appeal to the Board. On February 7, 1962 the Board entered an order staying the Commissioner's order pending hearing before and order by the State Board of Insurance upon such appeal.
On February 19, 1962 the Board held a hearing on the appeal at which time additional evidence was presented by appellee in support of its grounds for appeal and on March 14, 1962 the Board entered its order approving the original incorporation of intervenor under the name of Professional Investors Insurance Company and approving the order of the Commissioner.
Appellants' first point of error is that the Trial Court was without jurisdiction to issue a temporary injunction enjoining the Board from issuing a certificate of authority to intervenor under the provisions of Art. 3.06, Texas Insurance Code. Appellants contend that since Art. 1.04(f), T.I.C., does not specifically authorize the Trial Court to grant injunctive relief pending trial upon the merits, it was without authority to grant the temporary injunction, citing Board of Insurance Commissioners v. Adams, Tex.Civ.App., 286 S. *315 W.2d 708, error ref., N.R.E.; Cosmo Life Ins. Co. v. State Board of Insurance, Tex. Civ.App., 319 S.W.2d 162, (no writ history) and White v. Bolner, Tex.Civ.App., 223 S.W.2d 686, error ref. Appellants also rely upon the language in State Board of Ins. v. Adams, supra, that in enacting Art. 1.04(f) as an amendment to the Texas Insurance Code the Legislature intended to establish a uniform method of appeal thereby repealing all prior provisions in the Code relating to appeals from orders of the Board. We are unable to agree with either of appellants' contentions.
Under the authority of Sec. 8, Art. V, Constitution of Texas, Vernon's Ann.St., which provides that the District Court shall have power to issue writs of injunction, the Legislature enacted Art. 4642, Vernon's Ann.Civ.St., empowering judges of the District Courts to grant writs of injunction where the applicant shows himself entitled to the writ under the principles of equity and the statutes of this State. Under such constitutional and statutory authority a district judge may grant temporary injunctive relief to preserve the status quo of the subject matter of the litigation until trial upon the merits where there is jurisdiction over the parties and the subject matter. City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973, 77 A.L.R. 709; Rogers v. Daniel Oil & Royalty Co., Tex.Civ.App., 105 S.W.2d 476; aff. 130 Tex. 386, 110 S.W.2d 891. It is also a rule of law that District Courts may restrain the enforcement of administrative orders of State Boards and agencies for the purpose of preserving the status quo pending the trial on the merits of a suit to set aside such order. Railroad Commission v. Shell Oil Co., 146 Tex. 286, 206 S.W.2d 235, 242; Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 552.
In a hearing on an application for temporary injunction the question before the Trial Court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial on the merits. To warrant the issuance of the writ the applicant need only show a probable right thereto and that probable injury would result from a denial of the relief, but it is not necessary to establish that the applicant will finally prevail in the litigation. Where the pleadings and the evidence present a case of probable right and probable injury, the Trial Court is given broad discretion in determining whether the writ shall issue and its order will be reversed only upon a showing of a clear abuse of discretion. Transport Co. of Texas v. Robertson Transports, supra; Railroad Commission of Texas v. San Antonio Compress Co., Tex.Civ.App., 264 S.W. 214, 216; error ref., 114 Tex. 582, 278 S.W. 1115.
Appellants argue that the general statement of the rules governing the granting of temporary injunctions in the Robertson case is inapplicable here, since the statute construed by the Supreme Court in that case authorized injunctive relief, and since Art. 1.04(f), T.I.C., does not specifically provide for such relief, such rules are inapplicable. That this agreement is without merit is demonstrated by the opinion in Board of Insurance Commissioners v. Adams, supra, one of the cases relied upon by appellants wherein it is stated:
"We believe that the status quo in this case is that as of the day the Board entered its order refusing to renew appellee's license that the appellee had no license, any such license having expired by operation of law on March 31, 1955, six weeks prior to the Board's order. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549."
Thus this Court has specifically recognized that temporary injunctive relief would be applicable to maintain the status quo.
Appellants' contention that Art. 1.04(f), T.I.C., specifically repealed all other provisions of the Texas Insurance Code *316 providing for appeals from orders of the Board in specific cases is also without merit. International Service Ins. Co. v. Jackson, Tex.Civ.App., 335 S.W.2d 420, 422, involved the construction of Art. 5.40 of the Insurance Code which provided that after the making of regulations, orders, rates or schedules by the Board any interested person dissatisfied with the action of the Board should have the right within 30 days after the making of the regulation, order, rate or schedule to bring an action against the Board in the District Court of Travis County to have such regulation or order vacated or modified. The statute further provided that:
"No injunction, interlocutory order or decree suspending or restraining, directly or indirectly, the enforcement of any schedule, rate, order or regulation of said Board shall be granted."
The Trial Court denied the temporary injunctive relief and dismissed the case for want of jurisdiction since it was filed more than 30 days after the entry of the Board's order and held that it was without jurisdiction to grant the temporary injunction under the terms of the statute.
The Insurance Company contended that the provisions of Art. 5.40 regarding the filing of suit within 30 days and the prohibition against the granting of injunctive relief had been repealed by Secs. (d) and (f) of Art. 1.04. After stating the rules governing the repeal of laws by implication, the Court held:
"Applying the above tests to the issue here it cannot be said that the thirty day provision for taking an appeal from the order of the Board as contained in Art. 5.40, supra, was repealed by Senate Bill 222. There is nothing to prevent the two provisions from standing together and it is our opinion that Art. 5.40 fixes the time within which an appeal from the Board's order must be taken, and since the appeal here was not taken within that time appellants' point one does not present error.
"Our second quote supra from Art. 5.40 is applicable to appellants' second point. However our holding that the appeal was not timely taken disposes of the second point because the trial court never acquired jurisdiction of the appeal."
The cases cited by appellants as sustaining their contentions are not applicable to the factual situation here presented. In the Adams case, supra, the injunctive relief sought by Adams to maintain the status quo would have permitted the applicant to continue to violate the law. In the Cosmo Life Insurance Company case where injunctive relief was granted to maintain in effect a general rate order which had been superseded by an amended order, the Court in dissolving the injunction, stated:
"Cosmo and associates are entitled to a judicial review of the Board's order but such review does not entitle them to a temporary injunction the effect of which is to perpetuate rules, regulations and rates which the Board by its order of February 24, 1958, superseded."
White v. Bolner, supra, involved the removal of Board members of the San Antonio Housing Authority Board by the Mayor of San Antonio under statutory authority containing no specific provision for court review of the order. Injunctive relief was sought on the basis that in the absence of a statutory provision for review by the courts the statute was unconstitutional. The Court held that the absence of such provision did not render the statute unconstitutional since such review was implied and that injunctive relief should be denied since the applicants had the right to a judicial review of their ouster, but they did not have the right to have the order rendered inoperative pending such review.
In the case at bar appellee filed an appeal from the action of the Board in granting a charter to intervenor upon the ground *317 that such order was invalid and was granted a temporary injunction against the Board restraining the Board from issuing a license or certificate of authority under Art. 3.06, T.I.C. to intervenor to engage in or transact an insurance business, pending trial on the merits of the validity of the Board's order granting a charter to intervenor. The Trial Court's order granting the temporary injunction does not attempt to restrain or enjoin the Board or the Commissioner from the issuance of the charter to intervenor but only from approving any certificate of authority or issuing any license to intervenor to transact business or from taking any action which would have the effect of permitting or authorizing intervenor to transact a life insurance business in Texas. It does not purport to set aside any order of the Board or Commissioner which had been entered prior to the granting of the temporary injunction but only to preserve the status quo which existed at the time the temporary injunction was granted.
It being our opinion that the Trial Court had jurisdiction to issue the order granting the temporary injunction restraining the Board from issuing a license or certificate of authority to intervenor to preserve the status quo pending trial upon the merits, appellants' first point of error is overruled.
For their second point of error appellants assert that the Trial Court erred in holding that the complainant would probably prevail on a trial on the merits although there was an abundance of substantial evidence to support the order of the Board adduced at the hearing on the temporary injunction. Appellants argue that since in the granting of temporary injunctive relief pending trial on the merits, it is necessary that the applicant show under the pleadings and the evidence a probable right to the relief sought, and if it appears that there is substantial evidence to support the order of the administrative body which as a matter of law would preclude the applicant from prevailing at the trial on the merits, the temporary injunctive relief must be denied. It is clear that appellants' contention is based upon the presumption that the trial on the merits in the instant case will be conducted under the "substantial evidence" rule. Upon this basic assumption appellants devote a considerable portion of their brief to setting forth and discussing the "substantial evidence" supporting the Board's order which was adduced at the hearing on the temporary injunction.
However, the Supreme Court of Texas in the Robertson Transport case, supra, has disposed of appellants' contention in the following language:
"We cannot agree with the contention of respondent that the issue on this appeal is governed by the substantial evidence rule and that the judgment granting the temporary injunction should be reversed if the record made in the trial court reflects that the Commission's order is supported by substantial evidence. No case so holding has been cited to us, but, on the contrary, there are a number of cases in which the usual and customary rules governing appeals from the granting of temporary injunctions were applied in reviewing similar orders restraining the enforcement of administrative orders. For examples, see Railroad Commission v. Shell Oil Co., 146 Tex. 286, 206 S.W.2d 235, 242-243; Southwestern Greyhound Lines v. Railroad Commission, 128 Tex. 560, 99 S.W.2d 263, 270, 109 A.L.R. 1235.
"While the question of whether an administrative order is supported by substantial evidence is a question of law, it can only be determined from a review of the entire record after a full and final hearing in the trial court. (Citing cases.) The entire record is not made until a trial on the merits has been had. We cannot assume that the evidence taken on the final trial of *318 this case will be the same as the evidence introduced in the preliminary hearing and a decision on the question would be premature at this point." (261 S.W.2d 1. c. 553).
In our opinion the trial upon the merits of the case at bar would not be under the "substantial evidence" rule but it should be tried and determined as a trial de novo to the same extent as in the case of an appeal from the Justice Court to the County Court. Art. 1.04(f), T.I.C.
In considering the intervenor's application for charter the Legislature has provided in Sec. 3, Art. 3.04, T.I.C., the criteria based upon which the Board shall act, which are as follows:
"Sec. 3. In considering any such application, the Board shall, within thirty (30) days after public hearing, determine whether or not:
"(a) The minimum capital and surplus, as required by law, is the bona fide property of the company;
"(b) The proposed officers, directors and managing executive have sufficient insurance experience, ability and standing to render success of the proposed company probable;
"(c) The applicants are acting in good faith.
"Sec. 4. If the Board shall determine by an affirmative finding any of the above issues adversely to the applicants, it shall reject the application in writing giving the reason therefor. Otherwise the Board shall approve the application and submit such application together with the articles of incorporation and the affidavit to the Attorney General for examination. * * *"
In determining the findings required by Art. 3.04, the Board is exercising a quasijudicial function. Where an administrative body in the entry of an order acts in a semijudicial capacity as opposed to a legislative function and the statute provides that in an appeal to the courts to review the legality of the order, the trial shall be by a de novo review, such requirement is constitutional and mandatory. Key Western Life Insurance Company v. State Board of Insurance, Tex.Sup., 350 S.W.2d 839, 845-850.
Appellants state in their brief that the State Banking Board has to make essentially the same required findings to grant a banking charter as the State Board of Insurance must make in granting an insurance charter. Three of the findings required by Art. 342-305, Texas Banking Code, V.C.S., are practically identical with the findings required under Sec. 3, Art. 3.04 of the Insurance Code. In State Banking Board v. McCulloch, Tex.Civ.App., 316 S.W.2d 259, 266, error ref., N.R.E., the Court held that the State Banking Board in making the findings required by Art. 342-305 was exercising a quasi-judicial function. If the action of the State Banking Board in making the findings required under Art. 342-305 was an exercise of a quasi-judicial function, then it is manifest that in making the findings required by Sec. 3, Art. 3.04 of the Insurance Code the State Board of Insurance was exercising a quasi-judicial function.
Appellants correctly state that in the McCulloch case on the appeal from the order of the State Banking Board to the courts under Art. 342-115, Texas Banking Code, the trial was conducted under the "substantial evidence" rule. Art. 342-115, V.C. S., states that the orders of the State Banking Board may be appealed to a court of competent jurisdiction where the trial "shall be de novo the same as if said matter had been originally filed in such court." While there may be some similarity in the verbiage of Art. 342-115, V.C.S. and Art. 1.04(f), T.I.C., regarding the manner in which the case shall be tried before the court upon appeal, nevertheless it must be borne in mind that all of the appellate decisions construing the method of trial on appeals from the orders of the State Banking Board as *319 being under the "substantial evidence" rule were decided prior to the decision in the Key Western case less than a year ago. Even prior to the decision in the Key Western case there have been other appellate decisions interpreting statutes providing for review by trial de novo under the "preponderance of the evidence" standard instead of the "substantial evidence" rule.[1]
The trial on the merits in the instant case should be a trial de novo under the preponderance of the evidence standard under the authority of the Key Western case and not under the "substantial evidence" rule as contended by appellants and the issues of fact to be determined under Art. 3.04 must be submitted to and decided by the Trial Court, or a jury if one be demanded, upon a preponderance of the evidence.
In its verified petition appellee alleged that until January 23, 1962 and for a considerable period prior thereto Harold E. Riley and four other named individuals who were stockholders of intervenor had held positions of trust and confidence with the executive management of appellee, Harold E. Riley being vice president and agency director and the others serving as director of sales and director of public services, and regional managers; that on March 1, 1961, Riley and the other four individuals disregarding their positions of trust and confidence secretly conspired to organize a new company which would compete directly with appellee, which company was to be the Professional Investors Insurance Company and that it was the plan of such individuals to raid the agency force of appellee and to divert it to the new company, which action was taken while such individuals were fiduciaries of appellee and while they were being compensated by appellee for their time and services; that prior to their resignations from appellee such fiduciaries secretly commenced the organization of the new company by reserving the corporate name "Professional Investors Insurance Company" which was designed to be confusingly similar to that of appellee and that the subscriptions for the stock in the new company and application for the charter thereof was filed with the Board approximately six days prior to the resignation of the five fiduciaries; and that in furtherance of their plan to unlawfully divert to the now company a part of the agency force and business of appellee such fiduciaries wrongfully used the time, money, employees, officers and facilities, including travels expenses and the policyholders lists and stockholders lists, of appellee, by which conduct they caused a substantial part of appellee's agency force to resign at or about the time they submitted their resignations.
It was further alleged that at the hearings appellee objected to the issuance of any charter to intervenor upon the grounds that the name of the new company was so similar to that of appellee as to mislead the public in violation of Art. 3.02, T.I.C.; that the applicants were not acting in good faith; that the minimum capital and surplus required by Sec. 3(a), Art. 3.04 was not the unencumbered property of intervenor and that its proposed officers, directors and managing executives did not have sufficient experience, ability and standing to render success of the proposed company probable as required by Sec. 3(b), Art. 3.04; that although on February 7, 1962 the Board entered an order staying the Commissioner's order the Commissioner subsequently mailed a certified copy of the charter to intervenor and caused an examination to be made of intervenor to determine whether it should be licensed to transact business and in addition accepted a charter amendment by intervenor *320 to change its name to Allied Investors Insurance Company and prayed that the order of the Board granting the charter be rescinded and that the Board be temporarily enjoined from approving any charter to intervenor (or Allied Investors Insurance Company) or granting any license or certificate of authority to intervenor to transact business and that upon trial on the merits such temporary injunction be made permanent.
On the temporary injunction hearing appellee offered evidence consisting of affidavits and other documentary evidence and the Board and intervenor offered the oral testimony of witnesses supplemented by affidavits and other documentary evidence. The evidence was conflicting. The Trial Court, after considering the pleadings and the evidence adduced, entered the following order:
"* * * and it appears that Professional Investors Insurance Company is composed of persons formerly employed by plaintiff in positions of trust and confidence and probably will undermine the confidence of key employees, executives, agents and general agents of plaintiff and probably induce such employees, executives, agents and general agents to breach their contracts with plaintiff and to become employees, executives, agents and general agents of Professional Investors Insurance Company, intervenor, and that the State Board of Insurance of the State of Texas, defendant, in granting such license will probably act in disregard of the authority granted it in Articles 3.02 and 3.04 of the Texas Insurance Code and that the issuance of such license will result in irreparable and inestimable damage to the plaintiff; and that the plaintiff in said hearing has made a proper showing of a probable right and probable injury of the matters in the temporary injunction prayed for:
"It is accordingly ORDERED, ADJUDGED and DECREED that the clerk of this court issue a writ of injunction pending final hearing and determination of this cause restraining and enjoining the State Board of Insurance of the State of Texas, defendant, and the Commissioner of Insurance from approving any certificate of authority or issuing any license to Professional Investors Insurance Company or Allied Investors Insurance Company to transact business, or from taking any action whatsoever which would have the effect of permitting or authorizing said company to transact life insurance business in this state; however, the State Board of Insurance of the State of Texaas, defendant, may in its discretion, approve or disapprove the Articles of Amendment to the Articles of Incorporation of Professional Investors Insurance Company, intervenor, which Articles of Amendment have the effect of changing the name of Professional Investors Insurance Company to Allied Investors Insurance Company, * * *"
At the conclusion of the hearing the Trial Court made oral findings of fact as a predicate for granting the injunction which are in part:
"This record to me is incredible that any organization could be formed in the manner that Intervenor has been formed; that employees, officers, of an insurance company could utilize the time, the staff, and the money of their employer to organize a competing company, to adopt the names that have been undertaken to be adopted here in the order that they have Professional Men's Insurance Company, Professional Investors Insurance Company, and now the one which is nowhere near the name of the plaintiff. And I cannot believe, as urged by counsel, that Mr. Riley in good faith believed that he had the right to use the money of his employer to finance his employer's execution or possible dismemberment. If he honestly believed that, then that *321 clears him morally, but it indicts his intelligence. * * *
"However, I would be less than honest if I did not state that the adoption of these names, starting with almost an identical one, then retreating a little and now here in court retreating all the way bears upon the question of the good faith of the organizers of this company. I do not know what good faith means in the statute where it says, `the applicants are acting in good faith.' The Commissioner says that in his opinion it relates to good faith and intention in the formation of and the future operation of the insurance company.
"From the statements I have made I guess it is clear that it is the opinion of the Court that good faith was not shown in the formation of this company, that is, good faith toward a lot of people. I don't know toward whom the good faith referred to in the statute applies, but let me say here that the fiduciary obligation that rested upon Mr. Riley and Mr. Blackburn and the other employees of the old company was not just a fiduciary obligation toward Mr. Biggers, not just a fiduciary obligation toward the stockholders or the Board of Directors, but it was as I view it, a fiduciary obligation to everybody who had a stake in this company; I think in particular the policyholders, and even the creditors of the company who had a stake in its honest, devoted, loyal prosecution. They were not getting that, obviously, between October and January 23rd.
"Now, with respect to the probability of injury I think no comment is required. The probability of injury is obvious, and I am certain that there is not any real dispute on that.
"* * * My real concern here, gentlemen, is not with reference to the plaintiff as a legal entity or the intervenor as a legal entity. My real concern here in balancing the equities is with reference to those who are going to be affected from this day forward, those to whom stock is to be tendered, those to whom insurance in the intervenor company is to be tendered during the pendency of this cause. With the very existence of this company in question as it is in this lawsuit, there is a grave responsibility not only upon the Court but upon the officers and directors of the intervenor if it is to be going to the public presenting its stock and its policies, when its very life is being challenged. * * *
"Let me say further with reference to the qualifications of the organizers referred to in the statute and by counsel, * * * I am not sure what qualifications are referred to in this particular statute when it says `experience, ability and standing,' but again I guess I would be a little less than forthright if I did not state that when, in the insurance business, officers have been wanting in a fiduciary position in their obligations toward management, stockholders, and I think policyholders, that does not give high promise that they will be faithful to the same fiduciary obligation in another undertaking."
Since this is an appeal from an interlocutory order granting a temporary injunction and not from a judgment in a trial on the merits, it is not within the province of this Court to pass upon the weight or preponderance of the evidence adduced at the hearing as being sufficient to support a judgment either upholding or invalidating the order of the Board granting the charter. Under the rules of law governing the granting of temporary injunctive relief for the purpose of the preservation of the status quo set forth above, it is our duty to ascertain whether under the pleadings and evidence adduced before the Trial Court appellee has shown a probable right thereto and that a probable injury would result from a denial thereof and if the Trial Court as the judge of the credibility of the testimony and the weight to be given thereto has *322 granted such relief, we may reverse the judgment of the Trial Court only in the event of a showing of a clear abuse of discretion by the Trial Court. City of Houston v. Southwestern Bell Tel. Co., Tex. Civ.App., 263 S.W.2d 169, 171, error ref.
From a careful examination of the record it is our opinion that under the pleadings and the evidence appellee has shown a probable right to the issuance of the injunctive relief and that a probable injury would result to appellee and the public if the intervenor were allowed to transact a life insurance business by the issuance of policies and the issuance and sale of its stock while there exists a possibility that the legality of its corporate existence is in doubt. It is also our opinion that there is no showing of a clear abuse of discretion by the Trial Court in granting the temporary injunction against the Board from issuing to intervenor a certificate of authority to transact a life insurance business under the provisions of Article 3.06 of the Insurance Code pending trial upon the merits.
However, it is clear from the oral statement made by the Trial Court at the conclusion of the hearing that he was in doubt as to the meaning of the words "good faith" as set forth in Sec. 3(c), Art. 3.04, which requires the finding that "the applicants are acting in good faith." The Trial Court then quotes the Commissioner's statement that he considered that the provisions in Art. 3.04 relating to the applicants acting in good faith, relates to good faith and intention in the formation of and the future operation of the insurance company. The Trial Court, however, had a different interpretation of the words "good faith."
There appear to be no appellate decisions by the courts of Texas construing the meaning of the words "good faith" as used in Sec. 3(c), Art. 3.04 of the Insurance Code, nor have there been any decisions by the appellate courts of Texas construing the identical words appearing in Art. 342-305 of the Texas Banking Code providing as a requisite for the granting of a banking charter that the "applicants are acting in good faith." In Walraven v. Farmers' & Merchants' National Bank, 96 Tex. 331, 74 S.W. 530, 534, the Supreme Court stated that: "The expression `good faith' is used in the law to qualify many different kinds of actions. * * * One who acts honestly, and not fraudulently, is said to act in good faith. * * *" Other appellate courts of Texas have defined the words "good faith" in different connections. Yarbrough v. Brookins, Tex.Civ.App., 294 S.W. 900, 905; Peden Iron & Steel Co. v. Jenkins, Tex.Civ. App., 203 S.W. 180, 188. That the words "good faith" have many different meanings in different contexts is apparent from the cases cited in Vol. 18A, Words & Phrases, Good Faith pp. 84-131.
In Appel v. Morford, 62 Cal. App. 2d 36, 144 P.2d 95, 97, "good faith" is defined as follows:
"As understood in law, the phrase `in good faith" has a settled and well-defined meaning, which generally imports that in any given case the transaction involved was honestly conceived and consummated without collusion, fraud, or knowledge of fraud, and without intent to assist in a fraudulent or otherwise unlawful design." (Italics supplied.)
In Municipal Bond & Mortgage Corp. v. Bishop's Harbor & Drainage District, 154 Fla. 246, 17 So. 2d 226, 227, 228, the Supreme Court of Florida stated:
"Good faith is not an abstract quality floating in the firmament like bacteria in a foul breath. It is a concrete quality, descriptive of the motivating purpose of one's act or conduct when challenged or called in question. * * * It is quite true that in many instances compliance with the literal terms of the statute is shown but the manner and means employed to do so were devoid of the elements of good faith."
The Supreme Court of Missouri in Krone v. Snapout Forms Co., 360 Mo. 821, 230 *323 S.W.2d 865, 869, adopted the definition of "good faith" by the Supreme Court of Florida in the Municipal Bond & Mortgage Co. case. The Supreme Court of Michigan in Bliss Petroleum Co. v. McNally, 254 Mich. 569, 237 N.W. 53, 55, stated that "Good faith includes, not only personal upright mental attitude and clear conscience, but also intention to observe legal duties."
For a determination of the meaning of the words "good faith" as used in Art. 3.04 (c), appellants rely upon the construction of the Commissioner that such words relate to the good faith and intention in the formation and future operation of intervenor's insurance company and the interpretation of the Kentucky Court of Appeals in Speer v. Dossey, 177 Ky. 761, 198 S.W. 19, where in passing upon a Kentucky statute requiring that in granting a bank charter the Banking Commissioner "shall also inform himself that the incorporators are seeking to establish a bona fide banking or trust business, and are acting in good faith, * * *," the Court held:
"The good faith contemplated by the statute has reference only to a fixed purpose and intention on the part of the incorporators to engage in a regular banking business as distinguished from a stock jobbing or advertising scheme in the interest of some auxiliary enterprise; the words `good faith' in the sense employed in this statute mean a settled purpose or determination to inaugurate and carry on a legitimate banking or trust business in the usual course, as contradistinguished from the flotation of a spurious or false representation of such an institution. * *
"The statute does not contemplate the suppression of competing banks by the withholding of the approval of the commissioner to articles of incorporation merely upon the ground that the business may not prove profitable, or may be a detriment to a bank already established in a given community. It is the duty, however, of the banking commissioner to look to the moral standing and financial worth of the incorporators and their good faith and intention to carry on a regular legitimate banking or trust business. * * * It has been and is the policy of this state to encourage the establishment of banks and other corporations even in competition to one another because out of a wholesome rivalry the general public derives a benefit." (Italics supplied.)
The question of competition between intervenor and appellee if the charter of intervenor had been obtained by its applicants in "good faith" is not the question to be resolved here, since it is not against the public policy of this State to discourage competition between insurance companies which have been granted charters and certificates of authority to engage in the insurance business in accordance with the statutory requirements and hence Speer v. Dossey is not in point.
But here, the question of "good faith" which must be resolved is whether the organizers of intervenor were acting in good faith with appellee, its stockholders and policyholders under the evidence before the Board and the Trial Court, which, although conflicting, made out a prima facie case of violation of fiduciary obligations by the principal organizers of intervenor.
Applying the definitions of good faith above cited and which we believe applicable to the law of this case upon a trial on the merits, there is a question as to whether the transaction involved was honestly conceived and consummated without collusion, fraud, or knowledge of fraud and in addition whether the manner and means employed in the application for intervenor's charter were devoid of the elements of good faith even though in compliance with the literal terms of Sec. 3, Art. 3.04, T.I.C. We do not give to the words "in good faith" as used in the statute the narrow interpretation of the Commissioner *324 but prefer and adopt the more broad and general definition used in Appel v. Morford, supra.
The Trial Court also stated orally that he was not certain what qualifications were referred to in the statutory requirement under Sec. 3(b), Art. 3.04 that the proposed officers, directors and managing executive have sufficient insurance experience, ability and standing to render the success of the proposed company probable. The words "experience" and "ability" have well defined meanings. The evidence adduced before the Trial Court as to the "experience" and "ability" of the proposed officers, directors and managing executive of intervenor was conflicting. The word "standing" has been defined as one's place in the community in the estimation of others; his relative position and social, commercial or moral relations; his repute, grade, or rank. Gross v. State, 186 Ind. 581, 117 N.E. 562, 565, 1 A.L.R. 1151.
The evidence before the Board and the Trial Court was also conflicting as to the "standing" of the proposed officers, directors and managing executive of intervenor. In view of such conflicting evidence, the question of whether the proposed officers, directors and managing executive of intervenor had sufficient insurance experience, ability and standing to meet the requirement of Sec. 3(b), Art. 3.04 is to be determined by the trier of the facts when this case is tried upon the merits.
Appellee having shown such probable right and such probable injury which would entitle the issuance of temporary injunctive relief for the preservation of the status quo under the pleadings and the evidence and there being no showing of a clear abuse of discretion by the Trial Court in granting the temporary injunction, the judgment of the Trial Court is affirmed.
Affirmed.
HUGHES, Justice (dissenting).
The suit in which this temporary injunction was issued was a suit for a permanent injunction enjoining the State Board of Insurance "from approving any charter or issuing any license to Professional Investors Insurance Company or Allied Investors Insurance Company to transact business or taking any action whatsoever which would have the effect of permitting or authorizing said company to transact a life insurance business in this State."
Appellee pleaded a cause of action when it alleged:
"(a) The name of Professional Investors Insurance Company is so similar to that of Professional and Business Men's Insurance Company as to be likely to mislead the public, in view of the circumstances of the persons to be associated with Professional Investors Insurance Company and their previous association with Professional and Business Men's Insurance Company.
"(b) The applicants for the charter of Professional Investors Insurance Company are not acting in good faith.
"(c) The minimum capital and surplus, as required by law, of Professional Investors Insurance Company is not the bona fide, unconditional and unencumbered property of Professional Investors Insurance Company.
"(d) The proposed officers, directors and managing executive do not have sufficient insurance experience, ability and standing to render success of the proposed company probable."
In my opinion, however, the evidence does not tend to sustain the cause of action pleaded, and the temporary injunction should not have issued. Transport Co. of Texas v. Robertson, 152 Tex. 551, 261 S.W.2d 549. I, therefore, respectfully dissent.
As to ground (a), appellant has filed an application to amend its charter by changing its name to Allied Investors Insurance Company. This amendment, when effected, will completely eliminate this basis for injunctive *325 relief. I do not understand appellee to contend to the contrary.
As to ground (c), there is no evidence in this record that the $255,000.00 on deposit in the Fannin State Bank of Houston, as capital and surplus for this corporation is not the bona fide, unconditional and unencumbered funds of the corporation. The Vice President and Cashier of such Bank, Mr. George Gentry, as well as incorporators, Harold E. Riley, Paul E. Martin and William W. Blackburn, swore, the last three unconditionally, Mr. Gentry insofar as the Bank had knowledge, that such funds were the bona fide, unconditional and unencumbered property of the new corporation.
Appellee pleaded that:
"On January 29, 1962 plaintiff instituted Cause No. 23965-C in the 153 Judicial District Court, Tarrant County, Texas, against Professional Investors Insurance Company and all of its stock subscribers, and others, and in such action plaintiff requested that the Court impress a trust upon all of the stock and all of the assets of Professional Investors Insurance Company, for the use and benefit of plaintiff. Fannin State Bank, as the depository of all of the capital and surplus of Professional Investors Insurance Company, was made a party to said action on February 12, 1962. On January 31, 1962 the State Board of Insurance was advised of such action and on February 15, 1962 it was advised that Fannin State Bank was made a party to such action."
The majority does not dignify this allegation by mentioning it. As this record now stands, this suit is fictitious, self-serving and an obvious attempt by appellee to bolster its position in this case. If it has any influence at all on the conscience of a chancellor, it would seem to me that it should be adverse to appellee.
As to ground (d), the proposed officers and directors of the new corporation are Herman Hare Everitt, Harold Eugene Wiley, William Whitford Blackburn, Raymond Lloyd Graham, Leland L. Martin, John Baily Ferguson, Dr. Charles Harris Howard, M. D., Harvie Allen Parker, Roland Arthur Lipscomb, Hubert Ellis Morris and James Tullis Shahan. Briefly, I will state the undisputed biographical data as to each of these persons as shown by the record.
Mr. Everitt: Resides in Odessa, Texas. Born 1892. Education, Goldthwaite High School, Howard Payne College. Has been in own cattle business since he was 21 years old. Is now in cattle and oil business.
Mr. Riley: Born 1928. Resides in Houston, Education, Paschal High School, Fort Worth, Baylor University where he received degree in Business Administration. He has worked in automobile sales. For three years he was teacher-coach in Crane and Plainview. Since 1955 he has been in the life insurance business. He is a member of several civic, church and school organizations, including Chairman Fellowship of Christian Athletes, Who's Who in American Colleges and Universities, Athletic Committee, Baylor, Decon Willow Meadows Baptist Church. Further, regarding, Mr. Riley who was to be President and Chairman of the Board of Directors of the new corporation, Mr. Harmon Walters, a former agent for appellee, testified:
"Q. I asked you why you resigned, and you said because Mr. Riley was not going to be further connected with the company, and you didn't want to be. Why was that?
"A. Being associated with Oil Industries Life, I was associated with a group of people that I personally thought an awful lot of people you could trust what they had to say; and he, and Bill Blackburn, and a number of the other people in the managers' position in the company, were always persons that you could ask, or if you wanted something, you could go talk to them, and I like to be with those people, *326 and when I knew that Harold (Riley) was leaving, then I didn't desire to be associated with the company any longer."
It was stipulated that nineteen other former agents of appellee would, if called, testify similarly.
Mr. Blackburn: Born 1923. Resides in Houston. Education, Stephen F. Austin High School, Houston, Schreiner Junior College, Rice University, Loyola University, Southwestern Louisiana Institute. He was a Captain in the United States Marine Corps., a professional football player, was for four years self employed in the food business. Since 1956 he has been in the life insurance business. He has these self explanatory affiliations:
"Life Associates Investment Club member of investment committee
"Football United National-Charter Director-Nonprofit corp. Youth activities Riverside Methodist Church-Steward-Director-Finance Committee-Teacher Park Place Masonic Lodge, No. 1172 A. F. & A. M. member
"`R' Association-Rice University-member
"Owl Club Rice University-President Five Years and at present
"Fellowship of Christian Athletes, Inc. Houston Chapter President
"Rice Alumni Association Rice University-member
"Houston Turn Verein-Social Club member"
Mr. Graham: Born 1911. Resides in Houston. Education, Providence High School, Jacksonville Baptist College. He has worked for J. C. Penney Company 28 years, finally serving as district manager. He is member of the Board of Directors of the Meyerland State Bank, Houston, and is Past President of the Rotary Club of Houston.
Mr. Martin: Born 1895. Residence Marble Falls, Texas. Education, Tye High School, Texas Technological College, Lubbock, 1927-39, receiving Bachelor and Master of Science degrees. He has been in public school work for 35 years and since 1952 he has been in the life insurance business. He has Rotary, Masonic Lodge, Scottish Rite and Shrine affiliations, and also served on the Education Committee of the Odessa Chamber of Commerce and as teacher of Men's Bible Class in Marble Falls.
Mr. Ferguson: Born 1907. Resides in Wharton, Texas. Education, Montgomery High School. He is director of First State Bank of Louise, Texas, a director of Gulf Coast Medical Foundation, Wharton, Texas, President of Wharton Independent School Board, Director of Houston Fat Stock Show, and is a member of various social organizations.
Mr. Howard: Born 1924. Resides in Richardson, Texas. Education, Moody High School, University of Texas, Southwestern Medical School. Dr. Howard was in the Army Air Corps and is a member of many medical societies and a member of the Episcopal Church.
Mr. Parker: Born 1910. Resides in Port Arthur, Texas. Education, Oak Grove High School, Loganport, Louisiana. He has been in the life insurance business for an unstated period. He is executive secretary, President O.C.A.W. Local 4-23, Director Port Arthur Evening Lions, Director Eagles Arvia 228, Mayor City of Port Arthur, Past Chairman United Fund, Civil Defense Director, member executive committee, Jefferson County Democrats, Director Family Council, member River & Harbors.
Mr. Lipscomb: Born 1907. Resides in Odessa. Education, Denton High School, North Texas University, Bachelor of Science Degree. Graduate study U.S.C. and Texas Tech. Mr. Lipscomb was Superintendent of Schools in Wink, Texas, for 24 *327 years. He was in the life insurance business 1954-1958, and was President of Texas Western Development Corporation, 1960-62. He is Chairman of the Board of Winkler County State Bank, partner H & S Clothing, Andrews, Texas, President National Planning Service, Odessa. He is a member of Masonic Lodge, 32nd degree Scottish Rite, Shriner, Suez Temple, is International Counsellor, Lions Club Past Chairman Education Committee, Chamber of Commerce, Silver Beaver member, Boy Scouts, member Finance Committee Texas Lions League for Crippled Children, and a member of the Baptist Church.
Mr. Morris: Born 1910. Resides in Lubbock, Education, Speer High School, Danforth School of Pharmacy, Fort Worth, degree in pharmacy. Was for 25 years self employed pharmacist in Wink and Monahans. He has been in the life insurance business for six years. Member Board of Directors of Trans-Western Developers and Trans-Western Associates, Lubbock. Past President Lions Club, Lubbock. City Commissioner, Wink, Board member Chamber of Commerce, Board Member Winkler County Hospital, 10 years Board Member Wink Independent School District, Director Winkler County State Bank, member Board of Deacons, Finance Committee, Missions Committee, First Baptist Church, Lubbock.
Mr. Shahan: Born 1915. Resides in Brackettville, Texas. Education, Whitehouse High School, Baylor University, B. A. Degree. Mr. Shahan is President of Shaker Feed & Lumber Co., Alamo Village Inc., and owner of Shahan Angus Ranch, Brackettville. He is Past President of the Kinney County Chamber of Commerce, Director of South Texas Chamber of Commerce, Vice President of Texas-Mexico Holiday Council, Past President of Baylor B Association, Past President of the Texas Angus Association, Past President of the Texas Feed Manufacturing Association, Past Mayor of Brackettville, present member of Brackettville School Board.
There is a total of at least 31 years of insurance experience represented by these directors of the corporation. In my opinion, it would be most difficult to find a better cross section of representative, reputable, successful Texas business men than this directorate reflects. They are outstanding men. Mostly, they are shown to be public spirited, civic minded men dedicated to the welfare of their communities and their fellow men. If a group of this character does not qualify so as to assure the probable success of this corporation, there would be few corporations formed.
Each of these directors does not have insurance experience. If this is the requirement of the statute, then the board does not qualify. It is my opinion that the statute contemplates and aggregate sufficiency of insurance experience from the board as a whole.
There is a lack of evidence here, in my opinion, tending to support appellee's contention that these directors (directorate) do not have sufficient insurance experience, ability and standing to render success of this company probable. If appellee was reasonably sure of its contention in this respect, I doubt that it would expend the time and money required to bring and prosecute this suit.
The only remaining ground (b), is based upon the statutory requirement that the applicants for the charter "are acting in good faith." Appellee contends that they, incorporators, were not so acting here. This contention is based upon the evidence treated extensively by the majority that the incorporators had acted in bad faith towards appellee.
Conceding the factual soundness of this contention, it is my opinion that bad faith or breach of fiduciary relations between the incorporators of this corporations and appellee, while it may give rise to their civil liability to appellee for damages caused thereby, does not bring the incorporators within the ban of the statute. The statute *328 does not say that such incorporators must never have acted in bad faith. It only requires that they be presently acting in good faith. To what or to whom does "acting in good faith" refer? Appellee would direct the test in its direction. Appellant contends that it means only that the organization of the proposed corporation is being conducted in good faith. There is only one case to be found upon the subject. It is cited in the majority opinion and, in my judgment, it fully and soundly supports the position taken by appellant. The case is Speer, Banking Comm. v. Dossey, 177 Ky. 761, 198 S.W. 19, by the Kentucky Court of Appeals. Since the majority quotes from this case enough to indicate its applicability here, I do not further quote from it. I do suggest that it should be read in its entirety. This case, so far as I can ascertain, has never been questioned. The majority attempts to distinguish it on the ground that whereas in Kentucky the free enterprise system is untrammeled, "* * * it is not against the public policy of this State to discourage competition between insurance companies * * *." No authorities have been cited to sustain this statement. I suggest that to discourage competition is to encourage monopolies. Our Constitution and our antitrust statutes establish a public policy exactly contrary to the public policy enunciated by the majority. See Monopolies and Combinations, 29 Tex.Jur. p. 739 et seq.[1]
Furthermore, the relief sought here would not merely discourage competition; it would strangle it.
I would dissolve the temporary injunction.
NOTES
[1] State Board of Insurance Commissioners v. Fulton, Tex.Civ.App., 229 S.W.2d 652, error ref., N.R.E., 149 Tex. 347, 234 S.W.2d 389 (1950) (Texas Insurance Code, Art. 21.14); Rockett v. Texas State Board of Medical Examiners, Tex. Civ.App., 287 S.W.2d 190 (1936) error ref., N.R.E. (Art. 4506, V.C.S.); Cortez v. State Board of Morticians, Tex.Civ. App., 306 S.W.2d 243, error dism., w. o. j., 157 Tex. 649, 308 S.W.2d 12 (1957) (Art. 4582b, V.C.S.).
[1] We have many laws regulating business. They are designed, however, not to discourage competition, but to prevent unfair, ruinous competition, and to protect the interest of the public. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435708/ | 359 S.W.2d 654 (1962)
W. Howard LEE, Appellant,
v.
Hedy Lamarr LEE et al., Appellees.
No. 13968.
Court of Civil Appeals of Texas, Houston.
June 14, 1962.
Rehearing Denied July 12, 1962.
Second Motion Overruled September 13, 1962.
*655 Jack Binion, Fletcher H. Etheridge, Houston, Butler, Binion, Rice & Cook, Houston, of counsel, for appellant.
Fred Parks, Donn C. Fullenweider, Houston, for appellees.
WERLEIN, Justice.
This is an appeal by W. Howard Lee from an order of the trial court dissolving a temporary injunction previously granted restraining appellees, Hedy Lamarr Lee et al., from taking the depositions of some 13 witnesses to perpetuate their testimony in a suit which appellee alleged she anticipated filing against appellant. At the time the temporary injunction was granted on June 23, 1961, the trial court ordered that the writ of injunction should issue without prejudice to the right of appellees to move to dissolve the injunction after having amended their petition to perpetuate testimony so that the same would include such information regarding the nature of the anticipated suit as would fairly enable appellant Lee and his attorneys to cross-examine the proposed witnesses on the taking of their depositions. Thereafter, appellees filed an amended statement, which was sworn to, in which they alleged that appellee Hedy Lamarr Lee still desired to perpetuate testimony pursuant to Rule 187, Texas Rules of Civil Procedure, and as a basis therefor represented to the court:
"That your Petitioner anticipates the institution of a suit in which she may be interested; that such suit as is anticipated will, if instituted, involve in excess of $1,000.00 and could properly be brought in a District Court of Harris County, Texas; that the name and residence of the person supposed to be interested adversely to your Petitioner is W. Howard Lee, 3005 Buffalo Drive, Houston, Texas; that your Petitioner desires to perpetuate the testimony of the following named persons to be used as witnesses in such anticipated suit. The names and addresses referred to are as follows: [We omit the names and addresses].
"That such suit as is anticipated will, if instituted, relate to the community property of W. Howard Lee and his wife, Mrs. Hedy Lamarr Lee. That *656 your Petitioner and W. Howard Lee were married in New York City, New York during the month of December, 1953, and that they were permanently separated from each other during the year 1958 and were divorced by decree of divorce rendered by the Court of Domestic Relations No. 3 of Harris County, Texas, on April 22, 1960. Petitioner anticipates the filing of a suit growing out of intentional acts of W. Howard Lee, his agents, servants and employees under his direction and control, which resulted in the secretion of community funds and the denying to Petitioner a fair opportunity at the divorce trial of Hedy Lamarr Lee and W. Howard Lee of litigating and having determined her rights in and to the community property of Hedy Lamarr Lee and W. Howard Lee.
"That a copy of this First Amended Statement has been furnished the law firm of Butler, Binion, Rice & Cook, the attorneys for W. Howard Lee.
"WHEREFORE, Petitioner prays that the deposition of the witnesses named in paragraph 4 above be taken and returned as required by law."
On December 20, 1961 the trial court, on motion of appellees, entered an order dissolving the temporary injunction. In such order the court recited, among other things, that Hedy Lamarr Lee has filed an amended statement pursuant to Rule 187, T.R.C.P., in Cause No. 572,318, styled In The Matter of The Testimony of W. Howard Lee et al., in the 157th Judicial District Court of Harris County, Texas, "and it appearing to the Court that said amended original statement was filed in good faith, and it further appearing to the Court that said amended statement to perpetuate testimony includes such information regarding the nature of the anticipated suit as will fairly enable Plaintiff, W. Howard Lee, and his attorneys to cross-examine each of the proposed witnesses named in said statement to perpetuate testimony on the taking of depositions to perpetuate testimony; that the temporary injunction should be dissolved."
Appellant contends that the trial court erred and abused its discretion in finding that appellees' amended application to perpetuate testimony was filed in good faith, and in dissolving the temporary injunction. Appellant further contends that the trial court abused its discretion in finding that appellees' amended application was sufficient.
We cannot say that the trial court erred or abused its discretion in either particular. Rule 187, T.R.C.P., contemplates that the statement will include such information regarding the nature of the anticipated suit as will fairly enable the adverse party to cross-examine the witness. It does not require or contemplate that the statement will show the testimony which the moving party expects to elicit from the witness. Nor does it require as a condition to the right to perpetuate testimony thereunder that the applicant be unable to file the suit and obtain the testimony by ordinary deposition; nor is the statement required to allege that the proceeding is instituted in good faith and not as a fishing expedition. The good faith of the moving party is presumed unless the contrary is established by the allegations of the statement or by the evidence. Ramsey v. Gardner, 1955, 154 Tex. 457, 279 S.W.2d 584.
It is true that the allegations of the statement in the present case as to the nature of the anticipated suit are somewhat broad and general. The statement does show, however, that the anticipated suit if instituted will relate to the community property of W. Howard Lee and Mrs. Hedy Lamarr Lee, who were divorced on April 22, 1960. The statement also shows that the petitioner anticipates the filing of a suit growing out of intentional acts of W. Howard Lee, his agents, servants and employees under his direction and control, which resulted in the secretion of community *657 funds and in denying to petitioner a fair opportunity in the divorce trial of litigating and having determined her rights in and to the community property of herself and W. Howard Lee.
We think this statement limits the inquiry to intentional acts resulting in the secretion of community funds which denied the petitioner a fair opportunity at the divorce trial to litigate and have determined her rights in and to the community property of the parties. As stated in Ramsey v. Gardner, supra, Rule 187 does not contemplate or require that the statement show the testimony which the moving party expects to elicit from the witness. It is not necessary for petitioner to allege specific facts or describe specific property that has been secreted. If the petitioner had knowledge to the specific facts and the description of property secreted, the petitioner could immediately file a suit without the necessity of taking depositions to perpetuate testimony of witnesses in an anticipated suit.
Appellant stresses at great length the fact that appellee and her attorneys made a full and complete investigation of the property of the parties, and came to the conclusion that the settlement was fair and equitable; that appellee, Hedy Lamarr Lee, was completely satisfied with such settlement after investigating the same; that she agreed to the settlement, and authorized her attorneys to withdraw her contest to Mr. Lee's suit for divorce. Appellant also emphasizes that Hedy Lamarr Lee voluntarily absented herself from the trial at which she had every opportunity to determine the nature and extent of the community property. He therefore contends that in filing her petition to take depositions to perpetuate testimony of witnesses she is not acting in good faith.
The fact that an investigation and audit were made in connection with the divorce proceedings, and thereafter an agreement was entered into and duly executed by the parties and approved by all counsel and the court, does not establish that appellees are not proceeding in good faith, in alleging in their sworn amended statement that petitioner anticipates the filing of a suit growing out of intentional acts of appellant and his agents which resulted in the secretion of community property and in denying petitioner a fair opportunity to litigate and have determined her community rights. The pleadings, the sworn amended statement and the evidence do not establish as a matter of law lack of good faith, or that appellees contemplate excursions into other matters which would be in the nature of a "fishing expedition" to get evidence relating to other controversies between the parties. Bloomfield Steamship Co. v. Mattisen, Tex.Civ.App., 287 S.W.2d 697.
The trial court recited in its order that it appeared that the verified amended statement was filed in good faith. We think this finding of the trial court has some support in the evidence. In addition to the sworn amended statement filed by appellees, which the court could consider, there was other evidence. Arthur F. Thompson, a certified public accountant, who was requested by Mrs. Lee and one of her attorneys to examine appellant's books and records, testified that he examined the personal books of Mr. and Mrs. Lee and that he gave Mrs. Lee's attorney a transcript of the books and records in summary form. He further testified that he did not make an examination of the books of Lee Brothers, a partnership in which appellant was a partner; that he requested that such books be furnished him, but they were not furnished; and that he was not furnished any books or records for examination, other than the personal books and records of Mr. Lee, although he did see the partnership income tax returns.
Furthermore, as recited in appellant's brief, appellees' attorney, Fred Parks, stated to the court that he was employed in *658 the matter by Mr. Giesler's firm in California, and that Mr. Boies came here and they had had a long conference and that based upon such conference and the facts related to him, he felt there was a possibility that facts could be developed to set aside the property settlement, and that if such facts did exist sufficiently to justify filing a law suit, such suit would be filed. If the depositions which appellees seek to take should disclose that appellant had secreted community funds or property and had thereby prevented Mrs. Lee from litigating the same, the property settlement might be set aside. 20 Tex.Jur.2d, p. 582, § 253; Eldridge v. Eldridge, Tex.Civ.App., 259 S.W. 209; Novy v. Novy, Tex.Civ. App.1950, 231 S.W.2d 780.
The law is well settled that the exercise of the power to grant, refuse or dissolve a temporary injunction is within the sound discretion of the trial court. An appellate court will not set aside an order of a trial court granting, refusing or dissolving a temporary injunction unless it is established that the trial court abused its discretion in entering the order. All reasonable presumptions will be indulged in support of the trial court's judgment. Railroad Commission v. Shell Oil Co., Tex. Sup.1947, 206 S.W.2d 235; Pancake v. Kansas City Life Ins. Co., Tex.Civ.App., 134 S.W.2d 776; Missouri Pacific Transp. Co. v. Union Bus Lines, Tex.Civ.App., 210 S.W.2d 846; 31 Tex.Jur.2d, p. 282, § 164.
We cannot say that the trial court abused its discretion in dissolving the temporary injunction previously granted and in refusing to enjoin the taking of the depositions in question.
Judgment affirmed.
On Motion for Rehearing
In his motion for rehearing, appellant complains of our statement that the Amended Statement is verified. The affidavit which follows the Amended Statement has reference to the motion to vacate the temporary injunction, to which motion a copy of the Amended Statement is attached. Such motion, however, expressly incorporates in it the Amended Statement as if copied verbatim therein. We make this statement in the interest of accuracy, although we consider the point of no appreciable significance insofar as the trial court's finding of good faith is concerned.
Motion for rehearing is overruled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435711/ | 359 S.W.2d 330 (1962)
Edgar SHERRILL, Jr., Appellant,
v.
Betty SHERRILL et vir, Appellees.
No. 4028.
Court of Civil Appeals of Texas, Waco.
July 26, 1962.
Rehearing Denied August 13, 1962.
Ronald Smallwood, Karnes City, John L. Sandstedt, Bryan, for appellant.
John M. Lawrence, III, Bryan, T. Kellis Dibrell, San Antonio, Roy D. Robets, Jr., Fred V. Klingeman, Karnes City, for appellees.
WILSON, Justice.
This appeal from an order overruling appellant's plea of privilege is a sequel to a portion of the proceeding narrated in Ex parte Rhodes, Tex.Sup., 352 S.W.2d 249, and Rhodes v. Sherrill, Tex.Civ.App., 356 S.W.2d 856. No appeal was perfected from the order sustaining the plea of privilege *331 referred to in the Supreme Court's opinion, and our case begins at that juncture.
The order transferring Sherrill's action (which the Supreme Court summarized 352 S.W.2d 249, 250 as seeking: "(3) a change in the terms of the judgment as to custody of the child," and specific visitation rights) from Karnes to Brazos County on Rhodes' plea of privilege was rendered July 24, 1961. Although Sherrill gave notice of appeal, no appeal therefrom was perfected. On December 8, 1961, two days after the Supreme Court's opinion in Ex parte Rhodes, Sherrill filed in the Kranes County district court a "motion for non-suit" as to that portion of his action which had been ordered transfered to Brazos County. Three months later this motion was overruled by an order which recited certified copies of the proceedings (not including the motion for non-suit) were transmitted to the Brazos County district court December 21, 1961.
When the transferred proceedings reached the Brazos County district court appellees filed an answer to Sherill's petition, above summarized, and an application for permission to change the residence of the child to Brazos County. They also filed a motion to modify the 1954 divorce decree quoted in the Supreme Court's opinion, 352 S.W.2d 249, by deleting the provisions therein that the child not be removed from Karnes County without permission of that district court. Sherrill then filed a plea of privilege to be sued in Karnes County, where he resided, alleging that his motion for non-suit was filed and presented in the Karnes County district court before appellees filed that there any pleading asking affirmative relief, and before the certified copies of the proceedings were physically transmitted to Brazos County. Appellees filed a controverting plea and a plea of res judicata. The child was living in Brazos County with appellees at the time of the hearing there on the plae. Sherrill appeals from the order of the Brazos County District Court overruling his plea of privilege.
Appellant's point is that the Karnes County District Court had jurisdiction to grant his motion for non-suit, and he voluntarily and effectively dismissed his action before the documents were transmitted to Brazos County so as to leave no cause to be transferred to that county. The position taken hinges on the validity of this premise. He asserts, in consequence, that appellees' application to change the residence of the child and motion to modify the divorce decree constituted a new and independent action in Brazos County, which was subject to his plea of privilege filed there.
The Supreme Court has settled the question against appellant's contention, we think, by its construction of present Rule 164, Texas Rules of Civil Procedure. That rule provides a non-suit may be taken in a case tried by the judge "at any time before the decision is announced." The Commission of Appeals in H. H. Watson Co. v. Cobb Grain Co., Tex.Com.App., 292 S.W. 174, 177 (where a plea of privilege had not been controvcerted, and defendant had moved the court to transfer by sustaining the plea, but the court had not announced his decision as to the order of transfer), held that plaintiff could take a non-suit "until that order has actually been announced." In First Nat. Bank in Dallas v. Hanay, 123 Tex. 203, 204, 67 S.W.2d 215, the Supreme Court stated the quoted rule announced in the Cobb Grain Co. case afforded protection as to non-suits taken "before the court has announced his decision on the question of venue." In Atlantic Oil Producing Co. v. Jackson, 116 Tex. 570, 296 S.W. 283, no controverting plea was filed in answer to a plea of privilege, and plaintiff took a non-suit. The Supreme Court again held plaintiff had the right under the statute from which Rule 164 is derived to take a non-suit "at any time before the decision is announced." No cross-action or plea for affirmative relief was involved in those cases.
In the present case, not only had the order and decision on venue been announced *332 before the non-suit was attempted; it had become final by lapse of time. Wichita Falls & S. R. Co. v. McDonald, 141 Tex. 555, 174 S.W.2d 951, 953.
The order of the district court of Karnes County sustaining the plea of privilege having become final, the case stood as though it had been originally filed in Brazos County, and the Karnes County District Court was powerless to deal with the subject matter so ordered transferred as to render a judgment of voluntary dismissal. Cases relied on by appellant are those in which the order on the plea of privilege was, at least, not final; or in which a non-suit was taken before decision on the plea was announced. The duty of the clerk to send the required documents to Brazos County under Rule 89, Texas Rules of Procedure, involved performance of a ministerial act which did not affect the legal consequences of the order sustaining the plea. Appellant had the duty to effectuate the transfer. Miller v. Kountze Corporate School Dist., Tex.Com.App., 54 S.W.2d 344, 345.
Appellant contends that appellees' application and motion filed in Brazos County after the case was transferred constituted assertion of a new and independent action involving, essentially, a different subject matter from that transferred. The subject matter, we think, is in essence the same. We considered similar problems in Bacon v. Bacon, Tex.Civ.App., 351 S.W.2d 313, and Gathright v. Riggs, Tex.Civ. App., 344 S.W.2d 757, undertaking to distinguish between a case in which both parties seek a custody adjudication; and a case where one proceeding is to enforce provisions of a prior decree and the other proceeding is to change such provisions. Both the relief prayed for by appellant originally in Karnes County, which was ordered transferred, and that sought by appellee in Brazos County, was that provisions of the original decree concerning custody be altered on allegations of changed conditions affecting the best interests of the child. Appellant had prayed that the child be discharged from the custody of appellees while they are absent from Karnes County, and that he be permitted to have the child with him during four days each week while the mother was absent. The child's person and status being involved in these mutual efforts to change the custody tody provisions of the judgment, the fact that the specific change sought by the parties differed did not make the subject matter different. Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79. See also Ex parte Webb, 153 Tex. 234, 266 S.W.2d 855, 856. The present question was not presented in Nemec v. Degelia, Tex.Civ.App., 285 S.W.2d 411, relied on by appellant.
The trial court did not err in overruling the plea.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435713/ | 359 S.W.2d 290 (1962)
BACHMAN CENTER CORPORATION, Appellant,
v.
Lewis A. SALE, Appellee.
No. 16022.
Court of Civil Appeals of Texas, Dallas.
June 22, 1962.
Rehearing Denied July 20, 1962.
*291 Turner, Rodgers, Winn. Scurlock & Terry and James W. Leftwich, Dallas, for appellant.
Wm. Andress, Jr., Dallas, for appellee.
WILLIAMS, Justice.
Suit to recover commission. Lewis A. Sale sued Bachman Center Corporation alleging that he was the owner of 35% of the outstanding capital stock of said corporation and a director thereof; that the Directors of said Corporation had, by resolution, authorized Sale to secure leases on property owned by the Corporation; that he was to be paid a commission in accordance with the Dallas Real Estate Board schedule; that he had procured two leases and that the Corporation was indebted to him for commissions. This appeal follows granting of summary judgment in favor of plaintiff and denial of summary judgment of defendant.
By its first point on appeal appellant contends that the trial court erred in granting appellee's motion for summary judgment since said motion had already been denied by another District Judge. The record reveals that on January 19, 1960 the Honorable Dallas A. Blankenship, Judge of the 101st District Court of Dallas County, Texas, heard and considered motions for summary judgments presented by both appellant and appellee and, on the 29th day of January 1960 entered an order overruling same. Thereafter on May 8th, 1961, the Honorable Paine L. Bush, Judge of the 68th District Court of Dallas County, Texas *292 heard and considered appellee's motion for summary judgment together with appellant's amended motion for summary judgment, and on the 15th day of June 1961 entered the present order. Appellee's original suit, filed in the 101st District Court was in the nature of a suit for commissions and also a stockholder's derivative suit for restitution. When Judge Blankenship heard the motions for summary judgment the original suit was intact. Thereafter, the suit for commissions had been severed from that part of the case dealing with the derivative stockholder's action. Furthermore, after this part of the severed cause had been transferred to the 68th District Court appellee's deposition had been taken and considered by the Court when both motions for summary judgments were against presented to Judge Bush. It is fundamental that a District Court has the inherent right to change or modify any interlocutory order or judgment down to the time when the judgment on the merits of the case becomes final. Rule 166-A, Texas Rules of Civil Procedure. Sneed v. Martin, Tex.Civ.App., 292 S.W.2d 891; Wichita Falls & S R Co., v. McDonald, 141 Tex. 555, 174 S.W.2d 951; Manley v. Razien, Tex.Civ.App., 172 S.W.2d 798; 25 Tex.Jur. 549, 550. The summary judgment rule clearly intends that the trial court shall determine from the entire record then before it whether in fact there is a disputed material issue to be determined by a trier of facts. Burnett v. Cory Corporation, Tex.Civ.App., 352 S.W.2d 502. Appellant's first point is overruled.
Appellant's primary contentions are found in points 2, 3, 4, and 5 wherein it is claimed that the court erred in granting appellee's motion for summary judgment and in denying appellant's amended motion for summary judgment because appellee could not recover herein as a matter of law, in that (a) he did not have a real estate license as required by the Texas Real Estate License Act, Art. 6573a § 19, Vernon's Ann.Civ.St. and (b) he had no written contract for commissions as required by Texas Real Estate License Act, Art. 6573a, § 28, V.A.C.S. Appellee counters these points with the contention that same have been waived by appellant in that said defenses of illegality were not affirmatively pleaded. Appellee, in his petition, did not plead that he was a duly licensed real estate broker or salesmen. Appellant's only answer is a general denial. As a general rule the defense of illegality must be specifically plead and if not, is waived. Rules 90 and 94, T.R.C.P. Enfield Realty & Home Building Co. v. Hunter, Tex.Civ.App., 179 S.W.2d 810; Lobstein v. Watson, Tex.Civ. App., 186 S.W.2d 999 and Goen v. Hamilton, Tex.Civ.App., 159 S.W.2d 231. However, this is a summary judgment action and not a trial on the merits of the case. While it is true that appellant did not affirmatively plead defenses of illegality in its answer such defenses of lack of license and lack of written contract were brought to the attention of the trial court prior to the rendition of the final judgment. Such pleadings are contained in appellant's amended motion for summary judgment filed May 6, 1961, prior to the judgment of June 15, 1961. The identical contention made by appellee here was advanced in Juliani v. Fitz-Gibbon, Tex. Civ.App., 234 S.W.2d 448. The court there held that even though the affirmative defense of lack of dealer's license had not been affirmatively pled, yet there was no waiver where the matter had been brought to the attention of the Judge prior to the rendition of final judgment. We therefore hold that appellant did not waive its defenses of illegality.
We now turn our consideration to what we deem to be the crucial points on this appeal, namely, points 4 and 5 wherein appellant contends that appellee could not recover, as a matter of law, because of his failure to have a written contract for commissions as required by the Texas Real Estate License Act, Art. 6573a, V.A.C.S. § 28.
Art. 6573a, V.A.C.S. provides:
"Sec. 28. No action shall be brought in any court in this State for the recovery *293 of any commission for the sale or purchase of real estate unless the promise or agreement upon which action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunder lawfully authorized."
A lease transaction is a "sale" of real estate within the contemplation of this Article. McConnell v. Columbia Co., Tex. Civ.App., 326 S.W.2d 20; Banks v. Caroline Realty Co., Tex.Civ.App., 331 S.W.2d 946.
The only writing relied upon by appellee to meet the requirements of this Statute is the corporate resolution, duly adopted, reading as follows:
"Resolved, that Lewis A. Sale, shall be appointed exclusive leasing agent of the corporation to lease the store rooms to be situated in the shopping center to be constructed by the corporation, and that he shall be paid as compensation the commissions recommended and adopted by the Dallas Real Estate Board which are in effect at the time each such lease is executed and delivered."
Exhibit No. 1, attached to appellee's deposition is a copy of the schedule of the commissions of the Dallas Real Estate Board, "revised as of January 1, 1959". The leases in question were signed in the year 1956. Appellee Sale, in his affidavit in support of motion for summary judgment, recites that he was familiar with the schedule of commissions for procuring leases promulgated by the Dallas Real Estate Board in 1956 and then stating what such commissions would be. The record further reveals that after the adoption of the corporate resolution Lewis A. Sale presented a written contract of employment as exclusive leasing agent to the corporation, but that said contract was not approved, nor was any other written contract ever entered into between Sale and the Corporation.
The paramount question, therefore, is whether the Corporate resolution is sufficient, as a matter of law, to meet the requirements of the statute. The provisions of the Real Estate License Act (Art. 6573a, V.A.C.S.) relating to written agreements for commissions are a portion of the statute of frauds and must be construed in the same manner. Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515. It has also been held that corporate minutes and corporate resolutions, if otherwise sufficient and complete, constitute such writings as meets the statute of frauds. Texas Western Ry Co. v. Gentry, 69 Tex. 625, 8 S.W. 98; Republic Supply Co. v. Waggoner, Tex.Civ.App., 283 S.W. 537, writ ref.; Smith Detective Agency & Night Watch Service v. Town of Highland Park, Tex.Civ.App., 5 S.W.2d 598 and note in 127 A.L.R. 236.
Even so, the writing, whether it be a corporate resolution or a separate contract in writing, relied upon by the person bringing the action for commissions must be complete in itself in every material detail. Denman v. Hall, supra. The contract must contain the essentials of a contract so that they may be ascertained from the writing without resort to parol testimony. Denman v. Hall, supra; Dunn v. Slemons. Tex.Civ.App., 165 S.W.2d 203; Couser v. C & M Produce Co., Tex.Civ.App., 174 S.W.2d 984; Penrod v. Krebs, Tex.Civ. App., 240 S.W.2d 388; McConnell v. Columbia Co., Tex.Civ.App., 326 S.W.2d 20; Davis v. Freeman, Tex.Civ.App., 347 S.W.2d 650.
In the recent case of Davis v. Freeman, supra, this Court had occasion to pass upon a very similar question in which the written contract for commissions relied upon by the plaintiff contained a provision that he was to be paid "the usual sale commissions, in accordance with the schedule recommended by the Dallas Real Estate Board." We held that such contract was an insufficient writing in that it would be necessary to introduce parol testimony concerning the amount of the commissions on the date in question. Our holding there was *294 supported by the decision of the Supreme Court in Buratti & Montandon v. Tennant, 147 Tex. 536, 218 S.W.2d 842, 9 A.L.R. 2d 742 which was a case involving a contract which provided that the seller shall pay the agent "the usual commission". Chief Justice Hickman of the Supreme Court, in deciding that the contract was insufficient, said:
"The long-standing rule in this court is that the essential elements of a contract required to be in writing may never be supplied by parol. Jones v. Carver, 59 Tex. 293; Osborne v. Moore, 112 Tex. 361, 247 S.W. 498; Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150. A contrary rule would practically set at naught the statute of frauds. Discussing the particluar statute under review here we stated in Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515, 516, that `Its purpose, like that of other sections of the Statute of Frauds, is to prevent fraud arising from parol testimony as to the terms and conditions of such contracts.' That purpose could not be served if evidence were admitted to establish that respondents agreed orally to pay petitioners a commission for effecting a consummated sale."
It is quite obvious that the rule just quoted applies with equal force to the factual situation here presented. The corporate resolution, in order to be effective, must be supported by parol testimony concerning the amount of the commission due in 1956, the date the leases were obtained and accepted by the corporation. The schedule of fees of the Dallas Real Estate Board, introduced in evidence, are effective in 1959. It was incumbent upon Sale to supply, by parol testimony, what the commissions would have been in 1956. Accordingly, the writing relied upon by appellee is insufficient, as a matter of law, to constitute a valid written contract within the meaning of the Statute, and it therefore follows that his cause of action must fail. Appellant's points 4 and 5 are sustained.
Our action with reference to the foregoing points renders it unnecessary that we discuss or pass upon the remaining points advanced by appellant.
The judgment of the trial court is reversed and here rendered that appellee take nothing against appellant.
Reversed and rendered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435715/ | 359 S.W.2d 893 (1962)
Sidney VAN ZANDT et ux., Petitioners,
v.
FORT WORTH PRESS et al., Respondents.
No. A-8897.
Supreme Court of Texas.
July 25, 1962.
Rehearings Denied October 3, 1962.
*894 Stone, Parker, Snakard, Friedman & Brown, John G. Street, Jr., and James A. McMullen, III, with above firm, Fort Worth, for petitioner.
Morgan & Shropshire, Irvin W. Shelman, Fort Worth, for respondent.
CALVERT, Chief Justice.
Ft. Worth Press recovered a trial court judgment against Sidney Van Zandt and his wife and others for debt in the sum of $1,085.45, and for attorney fees in the sum of $375.00. The Van Zandts appealed, and the judgment was affirmed by the Court of Civil Appeals, 353 S.W.2d 95. We granted writ of error to review the holding of the Court of Civil Appeals that Article 2226, Vernon's Annotated Texas Statutes, authorizes the judgment for attorney fees.
Article 2226 authorizes a recovery of attorney fees by "Any person having a valid claim against a person or corporation for personal services rendered, labor done, material furnished, overcharges on freight or express, lost or damaged freight or express, or stock killed or injured, or suits founded upon a sworn account or accounts, * * *." The Article thus clearly itemizes seven, and only seven, classes of claims which can form a basis for an award of attorney fees. Unless the claim made the basis of respondent's recovery falls within one or more of the seven classes, the judgment for attorney fees must be reversed.
Respondent's suit was for $1,014.89 for classified advertising and $70.56 for display advertising. Attached to the trial court petition as exhibits are two sworn itemized accounts. The first exhibit is an itemized account for classified advertising. It shows the dates of insertions, the number *895 of lines of each insertion and the charges made therefor, from August 9, 1959, through October 25, 1959. Separate charges are shown for each day classified advertising was published. Analysis of the itemized account shows that charges at varying rates were made for 6975 lines of classified advertising and that the charges thus made total $1,014.89. The second exhibit is an itemized account for display advertising. It shows six insertions of three-inch display advertising at $3.92 per inch for a total charge of $70.56. Respondent asserts that the claim thus analyzed is a claim "upon a sworn account" or is a claim for "personal services rendered" and "labor done" within the meaning of the statute.
We have heretofore held that in order for a claim to be founded "upon a sworn account or accounts" within the meaning of the statute the account must be one "in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other." Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75, 78; Guay v. Schneider, Bernet & Hickman, Inc., 161 Tex. 560, 344 S.W.2d 429, refusing writ of error, no reversible error, in the same case, Tex.Civ.App., 341 S.W.2d 461; Langdeau v. Bouknight, Tex., 344 S.W.2d 435. Respondent's claim is not founded upon a "sworn account or accounts" of transactions in which there were sales on one side and purchases on the other, whereby title to personal property passed from respondent to petitioners. Therefore, it is not a claim "upon a sworn account" within the meaning of the statute.
Is respondent's claim one for "personal services rendered"? The Court of Civil Appeals affirmed the judgment for attorney fees on the theory that it is. We hold that it is not.
Statutes authorizing a recovery of attorney fees are penal in character and are to be strictly construed. Perry v. Leuttich, 132 Tex. 159, 121 S.W.2d 332, 333; Washington Fidelity Nat. Ins. Co. v. Williams, Tex.Com.App., 49 S.W.2d 1093, 1094. When strictly construed, the words "personal services" are not as broad and allencompassing as the word "services".
Webster's Third New International Dictionary gives a general definition of "service" as "action or use that furthers some end or purpose: conduct or performance that assists or benefits someone or something: deeds useful or instrumental toward some object." The same source defines "personal services" thusly: "economic service involving the either intellectual or manual personal labor of the server rather than a salable product of his skill (physicians, architects, and garbage collectors equally sell personal services)." In construing the state's Unemployment Compensation Act the Supreme Court of Utah had occasion in Creameries of America v. Industrial Commission, 98 Utah 571, 102 P.2d 300, 304, to differentiate "services" and "personal services". The court said:
"In ordinary usage the term `services' has a rather broad and general meaning. It includes generally any act performed for the benefit of another under some arrangement or agreement whereby such act was to have been performed. The general definition of `service' as given in Webster's New International Dictionary is `performance of labor for the benefit of another'; `Act or instance of helping, or benefiting'. The term `personal service' indicates that the `act' done for the benefit of another is done personally by a particular individual."
The Appellate Department, Superior Court, Los Angeles County, California, had occasion to distinguish "services" and "personal services" in Levitt v. Faber, 20 Cal. App.2d Supp. 758, 64 P.2d 498, 500, and did so in these words:
"`Services' and `personal services' are not definitely coextensive. Within the meaning of statutes such as that now under consideration and of exemption *896 statutes, `services' may be rendered though the actual labor be performed by one's employees and by means of his machinery or other equipment, but `personal services' are those performed by the individual himself."
In quoting from Levitt v. Faber we are not to be understood as holding that services will lose their character as personal services within the meaning of Art. 2226 because in the performance of the services the claimant uses the material, implements, tools or equipment essential to the service. To perform personal services the lawyer must use his books, the doctor his diagnostic or surgical instruments, the carpenter his tools. We would thus agree with the Supreme Court of New Hampshire which held in Hale v. Brown, 59 N.H. 551, 558, that "the personal services of the lumberman include the use and earnings of his oxen, chain, canthook, and his own team and sled, if these are actually used by him and are essential to the service rendered."
While a corporation may be a person having a right to recovery attorney fees under certain of the other provisions of Article 2226, it must be apparent from what has been said that an argument of considerable force can be made that a corporation cannot recover attorney fees in a suit on a claim for personal services because a corporation, as such, cannot perform personal services. However, we need not decide that question in this case, for the claim on which this suit is brought is not one for personal services. And "labor done" is but one form of "personal services rendered." Felton v. Johnson, 112 Tex. 412, 247 S.W. 837.
No doubt some of the employees of Ft. Worth Press rendered personal services, as respondent contends. It may be assumed that their claim for personal services, if unremunerated, would be against their corporate employer, Ft. Worth Press. The claim on which suit is brought by Ft. Worth Press is for advertising service, not personal services. The claim may include charges for labor done (operation of machinery, etc.), personal services (art work, ad writing, etc.), materials furnished (paper, ink, etc.), but it also includes, as in charges made by any solvent business, a margin of profit above recoupment of those costs and such other costs as taxes, insurance, etc. Respondent's proof on the trial clearly indicates this to have been its own concept of the nature of its claim. It introduced its sworn itemized account in evidence after proving it up by one of its employees. And while one of the employees testified to the making of changes in some of the advertising at the request of petitioners, and thus testified to some personal services rendered by employees, that was the only proof of the performance of personal services by employees of respondent, and there was no proof whatever of the value of, or of charges for, those or any other personal services.
The general common law rule is that in the absence of contract to the contrary every litigant will compensate his or its own counsel. Perhaps every successful litigant should be permitted to recover his attorney fees from the opposite party. But whether that policy would be wise is for the Legislature, not the courts, to decide. Apparently the Legislature has not thought it wise. But however that may be, the Legislature has not authorized a recovery of attorney fees in suits on claims such as that involved in this case. We do not agree with the holding of the Court of Civil Appeals in Harris v. Corpus Christi Broadcasting Co., 333 S.W.2d 475, no writ history.
We do not regard the other questions raised by petitioners as of sufficient importance or seriousness to justify discussion.
The judgments of the Court of Civil Appeals and the trial court are reformed to eliminate the item of attorney fees and as thus reformed the judgment of the Court of Civil Appeals is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435822/ | 367 F. Supp. 2d 969 (2005)
Krisa NEUMANN, Plaintiff,
v.
PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant.
No. 1:04CV928.
United States District Court, E.D. Virginia, Alexandria Division.
April 28, 2005.
*970 *971 *972 *973 Richard Dennis Carter, Alexandria, VA, for Plaintiff.
John Justin McKenna, Jr., Melissa Ray, McLean, VA, for Defendant.
MEMORANDUM OPINION
ELLIS, District Judge.
In this ERISA[1] action, plaintiff Krisa Neumann, a former Freddie Mac[2] employee, was diagnosed with fibromyalgia and inactive autoimmune disease, and ultimately left her job because her illness, she claims, left her totally disabled. She received short-term disability ("STD") benefits from Freddie Mac for six months, which are not at issue here, but when she later sought long-term disability ("LTD") benefits under an ERISA-governed employee welfare benefit plan ("the Plan"), administered and insured by Prudential Insurance Company of America ("Prudential"), her claim for benefits was first granted, then denied. It is this second denial of LTD benefits that is at issue here. Specifically, plaintiff brings her claim for relief from this denial of benefits under 29 U.S.C. § 1132(a)(1)(B),[3] alleging that Prudential improperly determined that she did not qualify for LTD benefits under the Plan's definition of "Total Disability."
At issue on plaintiff's motion for judgment and cross-motions for summary judgment are the following questions:
(i) whether the Plan language, which provides that benefits will be awarded when "Prudential determines that" certain conditions are met, indicates a clear intention to confer discretion on the Plan administrator, thus warranting abuse of discretion review, or whether it fails to confer such discretion, thus warranting de novo review;
(ii) whether the proper procedural posture of this case is summary judgment or rather a bench trial on the evidence presented to the Plan administrator; and
(iii) whether the facts in the record presented to the Plan administrator require a finding of "Total Disability" under the terms of the Plan.
As the matter has been fully briefed and argued, it is now ripe for disposition.
I. Scope of Review
The parties agree that the Plan is part of an ERISA-governed "employee welfare benefit plan"[4] and, therefore, that plaintiff, as a "beneficiary" of that Plan, is entitled to bring a civil action to recover disability benefits if those benefits are due to her under the terms of the Plan. See 29 U.S.C. § 1132(a)(1)(B). They do not agree, however, on the proper standard of review that should be applied. Because the procedural posture of this case may depend in part on the judicial standard of *974 review, it is appropriate to begin by determining whether Prudential's decision to deny benefits should be reviewed for an abuse of discretion or de novo.
It is well-settled that a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed de novo in the district court unless "the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan," in which case the standard of review is for an abuse of discretion.[5]Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S. Ct. 948, 103 L. Ed. 2d 80 (1989); see also Feder v. Paul Revere Life Ins. Co., 228 F.3d 518, 522-23 (4th Cir.2000) (abuse of discretion review warranted only when plan "vest[s] in its administrators discretion either to settle disputed eligibility questions or construe doubtful provisions of the Plan."). Although no specific phrases or terms are required to confer this discretionary authority, the plan's intention to do so "must be clear." Gallagher v. Reliance Standard Life Ins. Co., 305 F.3d 264, 268-69 (4th Cir.2002) (citation omitted); Feder, 228 F.3d at 522 (a plan will confer discretionary authority "if the terms of a plan indicate a clear intention to delegate final authority to determine eligibility to the plan administrator."). Any ambiguity in an ERISA plan "is construed against the drafter of the plan, and it is construed in accordance with the reasonable expectations of the insured." Gallagher, 305 F.3d at 269 (quoting Bynum v. Cigna Healthcare of North Carolina, Inc., 287 F.3d 305, 313-14 (4th Cir.2002)). Put simply, if a plan does not clearly grant discretion to interpret the plan, no deference is owed to the plan administrator's decision and the standard of review is de novo.[6]See id. These principles, applied here, compel the conclusion that Prudential's decision to deny benefits to plaintiff must be reviewed de novo.
Analysis of this issue properly begins with the language of the Plan, which provides for payment of LTD benefits if the applicant establishes the existence of either "Total Disability" or "Partial Disability." According to the Plan's terms, "`Total Disability' exists when Prudential determines" that certain conditions are met.[7] Prudential argues that the phrase "Prudential determines" is sufficient to trump the presumption in favor of de novo review and to confer discretionary authority upon Prudential to make benefits decisions. Notably, Prudential points to no other qualifying or amplifying language in the Plan, but rather relies solely on this phrase. Because this phrase, by itself, cannot vest in Prudential the discretion to interpret the terms of the Plan, it does not warrant abuse of discretion review.
*975 To begin the interpretive task, the Plan's terms must be given their "plain meaning." Pirozzi v. Blue-Cross-Blue Shield of Va., 741 F. Supp. 586, 589 (E.D.Va.1990) (citing Johnson v. District 2 Marine Eng'rs Beneficial Ass'n, 857 F.2d 514, 516 (9th Cir.1988)). And the plain meaning of the word "determine" is "to settle or decide (a dispute, question, matter in debate) as a judge or arbiter." See 4 Oxford English Dictionary 550 (2d ed.1989). Thus, the phrase makes clear that Prudential, as the Plan administrator, is given the initial authority to make a decision regarding eligibility. In other words, Prudential is not required to accept reflexively the beneficiary's representation that she is totally disabled within the meaning of the Plan. A claimant must present evidence of her disability to Prudential, which has been allocated the responsibility to make an initial decision regarding eligibility.[8] But the verb "determine" implies nothing one way or the other about the scope of judicial review of Prudential's decision.[9] Merely conferring authority to decide eligibility for benefits does not plainly delegate "final authority" to do so. Feder, 228 F.3d at 523. Nor does it confer discretion on the Plan administrator "to settle disputed eligibility questions or construe doubtful provisions of the Plan." Id. at 522. Simply put, a grant of discretion must be more explicit. See Gallagher, 305 F.3d at 269. Thus, the Plan's plain language fails to reflect the requisite "clear" intention to confer upon Prudential any discretion to interpret or administer the Plan. Id.
To the extent the phrase "Prudential determines" is deemed ambiguous with regard to whether discretion is conferred, the phrase must be construed against the drafter of the plan and in accordance with the "reasonable expectations of the insured." Gallagher, 305 F.3d at 269; Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202, 1207 (9th Cir.2000) ("Neither the parties nor the courts should have to divine whether discretion is conferred.") (quoted in Gallagher, 305 F.3d at 268-69). This means that even assuming, arguendo, that the phrase is ambiguous on this issue, it must be construed as conferring no discretion on the administrator to interpret or apply the Plan. And, this is so because the "reasonable expectation[] of the insured" is surely that he or she will enjoy the more favorable and default de novo review standard, especially where, as here, the Plan administrator operates under a conflict as both insurer and administrator of the Plan. What is more, in drafting the Plan language, it would not have been difficult for Prudential to ensure that its decisions regarding eligibility would be reviewed for an abuse of discretion. Prudential easily could have drafted language that unambiguously conferred discretion on the administrator to interpret the terms of the Plan. Indeed, examples of such unambiguous language abound.[10] Given the ease of drafting discretion-conferring language *976 and given the obvious importance of a plan participant's right to de novo review of ERISA benefits decisions, it is appropriate to require that ERISA plan language unambiguously delegate discretion to the plan administrator to avoid a haphazard or unknowing waiver of this right. See Ingram, 244 F.3d at 1113 ("We think it appropriate to insist ... that the text of a plan be unambiguous. If an insurance company seeking to sell and administer an ERISA plan wants to have discretion in making claims decisions, it should say so. It is not difficult to write, `The plan administrator has discretionary authority to grant or deny benefits under this plan.'").
In sum, the plain meaning of the phrase "Prudential determines" is that Prudential, considering the evidence presented by a Plan participant, must decide whether the participant is eligible for benefits under the terms of the Plan; it does not imply discretion or warrant abuse of discretion review. And because the phrase's meaning is unambiguous, no further analysis is necessary. But even assuming the phrase is ambiguous, the same result obtains because the phrase must then be construed against the drafter of the Plan and in accordance with the reasonable expectation of the insured that a denial of benefits under the Plan will be reviewable de novo in federal court.
Although the Fourth Circuit has never squarely addressed whether the verb "determine" is sufficient to confer discretion on an ERISA plan administrator,[11] other *977 courts have done so and convincingly support the result reached here. Particularly instructive in this regard is the Seventh Circuit's decision in Herzberger v. Standard Ins. Co., 205 F.3d 327 (7th Cir.2000). In Herzberger, the Seventh Circuit presented with precisely the same Prudential Plan language concluded the Plan conferred no discretion on the administrator. See id. at 333. Judge Posner, writing for a unanimous court, reasoned that simply stating that an administrator must make certain determinations before granting benefits is a mere truism; it implies nothing one way or the other about the scope of judicial review of that determination any more than an appellate court's statement that a district court "determined" some conclusion indicates the scope of review of that decision on appeal. Id. at 332. Further, Judge Posner opined that "[o]bviously a plan will not could not, consistent with its fiduciary obligation to the other participants pay benefits without first making a determination that the applicant was entitled to them." Id. To hold otherwise, reasoned Judge Posner, would fail to give plan participants adequate notice that they were waiving their important right to de novo review. See id. ("[T]he mere fact that a plan requires a determination of eligibility ... by the administrator ... does not give the employee notice that the plan administrator is to make a judgment largely insulated from judicial review by reason of being discretionary.") (emphasis added). Other courts thoughtfully considering this issue have reached the same result for similar reasons.[12]
Thus, the verb "determines," by itself, does not clearly vest in Prudential the discretion to interpret the Plan's terms. It follows, therefore, that the Plan language does not warrant departure from the presumptive de novo review of the federal courts under ERISA.
II. Procedural Posture
The scope of review is not the only procedural question to resolve; it is also necessary to determine the appropriate procedural posture of this case, namely whether the case should be dealt with under Rule 52 or Rule 56. Although plaintiff has moved in the alternative for summary judgment pursuant to Rule 56, Fed. R. Civ. P, she argues that application of the summary judgment standard would be inappropriate here because there are disputed issues of fact, and as plaintiff correctly observes, the function of a district court at the summary judgment phase is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Yet, plaintiff does not simply argue that summary judgment should be *978 denied; she contends summary judgment is never appropriately applied to § 1132(a)(1)(B) denial of benefits claims, as the Sixth Circuit held in Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609 (6th Cir.1998). While the Fourth Circuit has not explicitly decided whether summary judgment is appropriate in the § 1132(a)(1)(B) context, it has indicated in one published decision that it shares the Sixth Circuit's reservations articulated in Wilkins and recognizes the inappropriateness of "importing the summary judgment standard whole-cloth into the ERISA context." Phelps v. C.T. Enters., 394 F.3d 213, 218 (4th Cir.2005) (citing Wilkins, 150 F.3d 609). Unfortunately, because the panel in Phelps was not required to decide the question, it did not do so and its comments on this point are dicta.[13] It is necessary, therefore, to confront and decide here whether the instant § 1132(a)(1)(B) claim, which involves disputed facts, should be disposed of under Rule 52 or Rule 56.
The Sixth Circuit noted in Wilkins that district courts typically resolve claims brought under § 1132(a)(1)(B) in one of two ways: (i) by utilizing the summary judgment procedures set forth in Rule 56, or (ii) by conducting a bench trial on the merits, making findings of fact and conclusions of law pursuant to Rule 52. Wilkins, 150 F.3d at 617-18 (Gilman, J., concurring).[14] The Sixth Circuit went on to conclude, however, that neither standard is appropriately applied to claims brought under § 1132(a)(1)(B). First, it concluded that a bench trial is inappropriate because it would "inevitably lead to the introduction of testimonial and/or other evidence that the administrator had no opportunity to consider." Id. at 618. In the Sixth Circuit, in contrast to the Fourth Circuit,[15]de novo review is limited strictly to the evidence before the plan administrator. Id. (citing Perry v. Simplicity Eng'g, 900 F.2d 963 (6th Cir.1990)). Thus, the court concluded, a bench trial, which would require the admission of evidence, would be inappropriate. The Wilkins court found similar problems with the Rule 56 summary judgment standard. Specifically, because it had concluded that a § 1132(a)(1)(B) claim could not be resolved on a regular bench trial, it reasoned that it "makes little sense to deal with such an action by engaging a procedure designed solely to determine `whether there is a genuine issue for trial.'" Id. at 619 (citing Anderson, 477 U.S. at 249, 106 S. Ct. 2505). For these reasons, the Sixth Circuit adopted suggested guidelines for courts that, in essence, prescribe a paper review of the record presented to the plan administrator, but which it did not tether to any specific procedural rule. Specifically, it directed district courts (i) to conduct a de novo review of the record and to make findings of fact and conclusions of law, (ii) that evidence outside the record may be *979 offered only in support of a procedural challenge, and (iii) that Rule 56 motions should not be utilized. See id.
The Sixth Circuit's resolution of the matter does not quite fit within existing Fourth Circuit precedent. While the Sixth Circuit eschewed the summary judgment standard for § 1132(a)(1)(B) claims, and concluded that a bench trial cannot be held when no evidence can be admitted, Fourth Circuit law suggests that both summary judgment and bench trial procedures[16] may be applied to ERISA § 1132(a)(1)(B) claims, at least on de novo review.[17] In the Fourth Circuit, district courts conducting a de novo review of benefits decisions have discretion to consider evidence not before the administrator, if exceptional "circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefits decision." See Quesinberry, 987 F.2d at 1025.[18] Thus, in some instances on de novo review of a benefits decision pursuant to § 1132(a)(1)(B) claim, it is appropriate in the Fourth Circuit to conduct a bench trial, including the introduction of additional testimonial or other evidence. Further, even if a district court elects not to consider evidence beyond the record presented to the plan administrator, it seems appropriate, as both the Second and Ninth circuits have sensibly concluded, for a district court to conduct a "bench trial `on the papers' with the district court acting as the finder of fact."[19] In essence, this "de novo review of the parties' submissions" *980 and the record before the administrator, is a bench trial on the paper record. Muller, 341 F.3d at 124. And just like any other bench trial, Rule 52(a) requires that the district court make explicit findings of fact and conclusions of law. See Rule 52(a), Fed.R.Civ.P. ("In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon...."); see also Muller, 341 F.3d at 124-25; Kearney, 175 F.3d at 1095. Different from a traditional bench trial, however, these findings and conclusions are made only from the paper record before the plan administrator without additional oral evidence submitted in court. Thus, if a district court makes explicit findings of fact and conclusions of law, a bench trial on the record is an appropriate means of disposing of a § 1132(a)(1)(B) claim on de novo review.
While the Sixth Circuit reached essentially the same conclusion, i.e. that a district court should make findings of fact and conclusions of law from the paper record, it did not recognize this de novo review of the paper record as a bench trial. As a result, it rejected application of the Rule 56 summary judgment standard to ERISA § 1132(a)(1)(B) claims, which is designed to determine "whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S. Ct. 2505. Yet, because the Sixth Circuit's characterization of this procedure is not adopted here, there is no reason to reject the summary judgment standard in § 1132(a)(1)(B) cases. To be sure, there are ERISA § 1132(a)(1)(B) claims that involve no disputes of material fact, but merely a dispute over whether the undisputed facts are sufficient to trigger benefits under a plan's disability definition.[20] In these circumstances, summary judgment is appropriate.
In the case at bar, however, summary judgment is plainly inappropriate. This record is bristling with disputed material issues of fact, as a wide range of experts for both parties disagree about whether plaintiff suffers from illnesses that render her unable to fulfill the substantial duties of any job for which she is qualified. Given this, a bench trial on the paper record presented to the Plan administrator is appropriate, as there are no exceptional circumstances warranting the admission of additional evidence. See supra note 18. What follows, therefore, are the requisite findings of fact and conclusions of law based on the paper record presented to Prudential before it finally denied plaintiff's request for LTD benefits.
III. Findings of Fact and Conclusions of Law
A. The Parties
1. Plaintiff Krisa Neumann was employed as a Senior Business Analyst by Freddie Mac from March 2, 1998 until March 15, 1999. Plaintiff's duties as a Senior Business Analyst were entirely sedentary in nature. Prior to her employment with Freddie Mac, plaintiff was employed for four years as a Program Analyst with the U.S. Department of Housing *981 and Urban Development, Office of Fair Housing and Equal Opportunity, where she was consistently recognized for excellence and outstanding performance.
2. As a benefit of her employment, Freddie Mac provided plaintiff with access to group disability income insurance. If eligible, plaintiff was entitled to STD benefits under a plan administered and funded by Freddie Mac these benefits are not at issue here and LTD benefits, under a Plan funded through a Group Insurance Contract with Prudential, which also administered the Plan.
B. The Prudential Plan
3. The Plan provides for the payment of LTD benefits when the beneficiary has a "long period" of "Partial Disability" or "Total Disability." These benefits begin after an Elimination Period of 180 days, which is equivalent to the length of time for which Freddie Mac provides disability coverage under its STD plan.
4. The Plan defines "Total Disability" as follows:
"Total Disability" exists when Prudential determines that all of these conditions are met:
(1) Due to Sickness or accidental Injury, both of these are true:
(a) You are unable to perform, for wage or profit, the material and substantial duties of your occupation.
(b) After the Initial Duration[21] of a period of Total Disability, you are not able to perform for wage or profit, the material and substantial duties of any job for which you are reasonably fitted by your education, training or experience. The Initial Duration is shown in the Schedule of Benefits.
(2) You are not working at any job for wage or profit.
5. In plaintiff's case, the Plan provides for LTD benefits equivalent to 60% of her monthly salary less any offset for certain other benefits received, including Social Security Disability Benefits.[22]
C. Short-Term Disability Benefits
6. Plaintiff received STD benefits for 180 days based on her claim that she could not perform her job as a Senior Business Analyst because she suffered from fibromyalgia. Although plaintiff's STD benefits are not in issue here, the facts relating to the award of these benefits are relevant to the LTD benefit issues and are therefore recounted here.
7. Plaintiff was first diagnosed with fibromyalgia and an inactive autoimmune disorder in November 1998 by Thomas R. Cupps, M.D., a board-certified internist, specializing in rheumatology, and assistant professor of medicine at the Georgetown University Medical Center.
8. Fibromyalgia is a rheumatic disorder which causes severe pain in the muscles, ligaments, and tendons. It is characterized by diffuse pain, tenderness, stiffness of joints, fatigue, cognitive and memory problems, and disturbed sleep. *982 See Stup v. Unum Life Ins. Co. Of Am., 390 F.3d 301, 302 (4th Cir.2004) (citing Nat'l Institutes of Health, Questions & Answers About Fibromyalgia 1 (rev. June 2004), available at http://www.niams. nih.gov/hi/topics /fibromyalgia/ Fibromyalgia.pdf); Ellis v. Metropolitan Life Ins. Co., 126 F.3d 228, 231 n. 1 (4th Cir.1997) (quoting Taber's Cyclopedic Medical Dictionary (16th ed.1989)); Sarchet v. Chater, 78 F.3d 305, 306-07 (7th Cir.1996). Its cause is unknown, there is no cure, and there are currently no objective, laboratory tests for the presence or severity of fibromyalgia. See Sarchet, 78 F.3d at 306; Nat'l Institutes of Health, supra, at 4-5. Yet, according to the American College of Rheumatology, the condition may be clinically diagnosed through a muskuloskeletal examination, by which patients qualify for the classification of fibromyalgia by the presence of pain in 11 of 18 tender points located throughout the body. See Wolfe, et al., "The American College of Rheumatology 1990 Criteria for the Classification of Fibromyalgia: Report of the Multicenter Criteria Committee," 33 Arthritis & Rheumatism 160-72 (1990) (cited in Conrad v. Cont'l Cas. Co., 232 F. Supp. 2d 600, 603 (E.D.N.C.2002)); Stup, 390 F.3d at 303; Sarchet, 78 F.3d at 306.[23] Fibromyalgia "can interfere with a person's ability to carry on daily activities." Stup, 390 F.3d at 302 (citing Nat'l Institutes of Health, supra, at 1.) And while "[s]ome people may have such a severe case of fibromyalgia as to be totally disabled from working, most do not." Id. (citing Sarchet, 78 F.3d at 307).
9. In reaching his diagnosis, Dr. Cupps relied on plaintiff's self-described worsening symptoms, including profound fatigue, diffuse pain, non-restorative sleep and cognitive dysfunction.[24] In January 1999, Dr. Cupps also conducted a musculoskeletal examination and found a pattern of diffuse tenderness, consistent with clinical fibromyalgia. Laboratory testing also revealed significantly elevated titer ANA (or anti-nuclear antibodies), which is generally associated with the presence of an autoimmune disease. Dr. Cupps found no clinical evidence of an active autoimmune disease, but ultimately concluded that plaintiff suffers from undifferentiated autoimmune disease syndrome and fibromyalgia.
10. On March 15, 1999, plaintiff stopped working at Freddie Mac and began receiving STD benefits. These STD benefits were paid to plaintiff under a short-term disability plan administered by Freddie Mac's Occupational Health Unit. The benefits were initially granted for twelve weeks and later extended for a total of 180 days. In reaching its decision to authorize plaintiff's request for short-term benefits, Freddie Mac relied on the opinion of its own in-house file reviewer, Joseph M. Marietta, M.D., and a letter from Dr. Cupps explaining that plaintiff had made a concerted effort to improve her current level of activity, but that her fibromyalgia and autoimmune disease were exacerbated by stress and the demands of her work responsibilities, which were co-factors in the expression of her clinical symptoms.
*983 D. Long-Term Disability Benefits
11. On August 6, 1999, one month before the expiration of her STD benefits from Freddie Mac, plaintiff applied for LTD benefits under the Plan administered and funded by Prudential. Plaintiff underwent two separate reviews of her claim for LTD benefits under two slightly different standards of review.[25] The first review resulted in a finding of Total Disability for the Initial Duration, or the twenty-four months from September 1999 until September 2001. At the conclusion of the two-year period, Prudential conducted a second review and denied benefits. It is this second decision that plaintiff challenges here.
12. Plaintiff's first application for LTD benefits was reviewed for Prudential by an independent file reviewer, Gwen Brachman, M.D., a specialist in internal medicine, rheumatology and occupational medicine. Significantly, Dr. Brachman did not personally examine or interview plaintiff, but recommended denial of plaintiff's claim, noting that the record reflected no evidence of an active autoimmune disease, no evidence of synovitis, no decreased range of motion, nor a decrease in muscle strength or neurological function. Notably, she did not squarely address Dr. Cupps' diagnosis of fibromyalgia or the severity of the symptoms he described. By letter dated October 11, 1999, Prudential, relying on Dr. Brachman's review and applying the standard for Total Disability during the Initial Duration,[26] denied plaintiff's application for LTD benefits, concluding that "there is no medical documentation... that [plaintiff] has an impairment so severe that it prevents [her] from performing the material and substantial duties of [her] sedentary job functions."
13. Plaintiff twice appealed this denial, each time providing additional evidence in support of her claim that she was totally disabled within the meaning of the Plan. In support of her first appeal, plaintiff submitted additional evidence, including the following:
(a) Two additional letters from Dr. Cupps supporting plaintiff's claims of total disability, including the following statement in a March 6, 2000 report:
Ms. Neumann remains markedly symptomatic with a pattern of severe fatigue ... as a result of Fibromyalgia. The severe fatigue, in and of itself disables her from performing even sedentary work. She normally requires significant naps during the day. Ms. Neumann cannot even sustain the energy necessary to perform activities of daily living for more than two hours prior to stopping because of fatigue. Ms. Neumann certainly is unable to sustain the energy necessary to perform an eight hour work day.[27]
(b) Dr. Les Gavora, plaintiff's primary care physician and a board-certified internist, diagnosed plaintiff with both fibromyalgia and chronic fatigue syndrome and submitted a report stating:
Ms. Neumann continues to suffer from severe chronic fatigue and fibromyalgia.... Because of her extremely poor endurance, exercise tolerance and limited ability to perform tasks, I *984 continue to believe that she is truly disabled from work at this time.... Approximately 10% of chronic fatigue and fibromyalgia patients are disabled and unable to work and 90% are able to maintain gainful employment with their disorder. The severity of her symptoms and the multiple deficits encountered put her in a disabled category at this time.
14. Upon receiving plaintiff's appeal, Prudential initiated a second review by an independent file reviewer and specialist in rheumatology, Phillip Kempf, M.D. Like Dr. Brachman, Dr. Kempf did not physically examine or interview plaintiff but simply reviewed plaintiff's medical file. In a two-paragraph report, Dr. Kempf concluded that there was no evidence of an active autoimmune disease, and that he could find "no limitations to support [plaintiff's] long-term disability or inability to work." With respect to plaintiff's claims of cognitive disability, in a follow-up letter, Dr. Kempf wrote that "no objective testing" had been done and that plaintiff would need "extensive neuropsychiatric testing" to determine whether she had any medically documented illness that would cause significant cognitive decline. Significantly, Dr. Kempf did not specifically address Dr. Cupp's diagnosis of fibromyalgia, nor that physician's conclusions concerning the severity of plaintiff's condition. Relying on this report, on July 7, 2000, Prudential denied plaintiff's first appeal.
15. Following this first denial, plaintiff sought to provide "objective evidence" of her decreased cognitive abilities by submitting to an examination by Leonard G. Perlman, Ed.D., a consultant in rehabilitative psychology and a vocational expert with regular experience testifying in disability hearings before the Social Security Administration. Dr. Perlman conducted a psychological-vocational assessment of plaintiff and submitted a five-page report and a three-page Medical Assessment of Ability to do Work-Related Activities, concluding that plaintiff could not sustain gainful employment. Dr. Perlman specifically found no evidence of malingering in plaintiff's test-taking behavior, and conducted a variety of tests, which Dr. Perlman claims provide "objective" evidence of plaintiff's reduced cognitive abilities.[28] In a related matter, Dr. Perlman administered the Purdue Pegboard test of finger dexterity on which plaintiff performed at or below a fifteenth percentile when compared to Industrial Applicant norms. Dr. Perlman concluded that plaintiff would not be productive in tasks that involved eye-hand coordination or in which speed and accuracy were required. During the course of a more than two-hour examination, Dr. Perlman observed that plaintiff's "fatigue was intense and debilitating," that "her energy level was generally poor" and that her "cognitive abilities were limited and concentration/attention deficits were noted especially during objective testing." Based on his examination, Dr. Perlman found (i) that plaintiff's "concentration and attention are significantly impaired and would most likely worsen under stress or *985 pressure found in work settings," (ii) that plaintiff fatigues easily and has a very low energy level and [sic] requiring sleep during the daytime (at least 2 hours in the morning and 2 hours in the early afternoon) ....; (iii) that due to pain and fatigue, plaintiff would "miss a few days of work per week/or need to take [1] hour to 2 hour breaks during a work day," which, he concluded, "would not be tolerated in [a] competitive labor market." Thus, Dr. Perlman concluded that plaintiff "could not sustain any gainful employment due to the wide array of physical limitations and the emotional factors that accompany these problems."
16. Plaintiff submitted Dr. Perlman's report in support of a second appeal to Prudential. Before resolving plaintiff's second appeal, Prudential contracted with an Independent Medical Examiner ("IME") to conduct a personal examination of plaintiff. Significantly, that examiner, Mayo F. Friedlis, M.D., found no evidence of malingering on the part of plaintiff. Dr. Friedlis stated that his diagnosis was that plaintiff suffered from (i) fibromyalgia syndrome, (ii) a history of chronic fatigue syndrome, and (ii) possible subclinical hypothyroid state. He concluded that plaintiff is not working primarily because of her cognitive difficulties, which he found to be "clearly defined" by the records provided for his review. He also found that her chronic fatigue was a limiting factor. Dr. Friedlis affirmed plaintiff's diagnosis with fibromyalgia, but concluded that plaintiff's fibromyalgia was "not per se severe enough to in and of itself keep her from working." Further, he concluded that while plaintiff might be capable of returning to the workforce in the future with appropriate treatment, she was "not at [that] time capable of returning to the work force in any capacity."
17. Based on plaintiff's submission of Dr. Perlman's report and on the report it commissioned from Dr. Friedlis, Prudential granted plaintiff's second appeal on January 30, 2001. Specifically, Prudential found that plaintiff had satisfied the standard for Total Disability for the Initial Duration, granted plaintiff's appeal, and awarded her LTD benefits retroactive to September 11, 1999 and through September 10, 2001.
18. Three months later, by letter dated April 5, 2001, Prudential notified plaintiff through her attorney that her LTD benefits would expire at the end of the Initial Duration on September 11, 2001. Further, the letter stated that "even though benefits may continue beyond this initial period, we do not waive our right to evaluate your claim under the more restrictive definition of Total Disability."[29] The letter requested only that plaintiff complete a Comprehensive Claimant's Statement. Plaintiff complied on May 15, 2001.
19. Shortly before September 11, 2001, Prudential conducted its own internal review of plaintiff's file. Specifically, two internal reviewers, both employed by Prudential, examined plaintiff's medical file and recommended that she not be awarded benefits.
(a) Prudential's Medical Director, Bob McBride, M.D., concluded that "the medical evidence ... is almost totally of a self-reported nature." He also criticized the conclusions of Dr. Friedlis, the IME, on this basis. Further, with respect to Dr. Perlman's findings, he recommended "obtain[ing] and critically evaluat[ ing] *986 the Raw Test scores from the [neuropsychological testing]... performed by Dr. Perlman."[30] From this review, McBride found it difficult to see "medically determinable evidence of an impairment of sufficient extent and duration as to explain and support total, continuing loss of work capacity."
(b) Another in-house physician, Marcia Scott, M.D., also reviewed the file and recommended denying benefits. Scott observed that the medical evidence of plaintiff's fibromyalgia was "almost totally self-reported." She also criticized the nature of Dr. Perlman's findings, noting that Dr. Perlman is not a certified neuropsychologist, but an educational psychologist and that "[n]o neuropsychological battery was done." Thus, she concluded that the medical file "does not support that claimant has impairments severe enough to prevent her from working."
20. Following these internal reviews, on August 27, 2001, Prudential terminated plaintiff's LTD benefits effective September 11, 2001, finding that she had not satisfied the definition of "Total Disability," which after the Initial Duration, required plaintiff to show that she was unable to perform the material and substantial duties of any job for which she was qualified. This decision did not note any change in plaintiff's condition after January 30, 2001, the date Prudential found plaintiff to be totally disabled for the purpose of performing the duties of her own sedentary occupation.
21. Plaintiff appealed Prudential's decision three separate times and was denied each time. In addition to further reports from Dr. Gavora that plaintiff continued to be disabled and "attempts to employ her in any meaningful capacity would not be successful and would further complicate her status," plaintiff submitted the report of Marco D. Castro, M.D., a neurologist. He also diagnosed plaintiff with fibromyalgia, chronic fatigue syndrome, and cognitive dysfunction. He was unable to establish that plaintiff suffered from a specific underlying neurological disorder, but diagnosed plaintiff as suffering from "cognitive dysfunction" related to "mild abnormalities conspicuous during an electroencephalogram."
22. Also in support of her application for LTD benefits, plaintiff notified Prudential that on December 14, 2001, the Social Security Administration ("SSA") awarded plaintiff Social Security benefits after an Administrative Law Judge found that plaintiff's assertions concerning her ability to work were credible and that she was unable to perform sedentary work for an 8-hour workday, and concluded that she was under a "disability," as defined by the SSA.[31]
23. During the course of these appeals, Prudential again contracted with independent file reviewer Dr. Brachman to review plaintiff's medical file. Dr. Brachman conducted a review of plaintiff's medical file and while she agreed that plaintiff had been accurately diagnosed with fibromyalgia, she concluded that plaintiff was "not physically impaired from performing the *987 essential functions of her own or any sedentary occupation because of symptoms related to fibromyalgia." She reached this conclusion in part because plaintiff's symptoms did not appear to have progressed over the two years between the onset of her first symptoms in 1997 and when she left work in 1999. Further, she placed great weight on a number of general conclusions about fibromyalgia. Specifically, she stated that "the worst treatment for fibromyalgia patients is prolonged rest and removal from a sedentary workplace." She argued that the "medical literature indicates that individuals with fibromyalgia are physically able to perform even heavy work demands." Thus, she recommended that fibromyalgia patients, such as plaintiff, avoid repetitive motions (as they have difficulty keeping up with time demands), heavy lifting, and work in safety sensitive jobs. She also found no evidence of an active autoimmune disease and stated that she could not evaluate plaintiff's symptoms of cognitive impairments because they were outside her degree of specialty.
24. Disputing Dr. Brachman's report, Dr. Gavora submitted an additional report in support of plaintiff's third and final appeal. Dr. Gavora noted that in his experience, fibromyalgia patients tend to "fight through" their illness despite an inability to do so successfully and despite a declining quality of life. In his opinion, the two-year period from 1997 to 1999 was consistent with this time course. Dr. Gavora also challenged Dr. Brachman's conclusions about fibromyalgia. He noted that "[f]ibromyalgia has been a recognized medical entity since the 1990's when the World Health Organization issued a formal statement and policy recognizing this disorder providing a frame work for its evaluation and treatment worldwide." Further, he argued that Dr. Brachman's assertion that sufferers of fibromyalgia tend to be capable of doing heavy workloads is inconsistent with his understanding of the medical literature. He also challenged Dr. Brachman's conclusion that it is inappropriate to remove any fibromyalgia patient from a sedentary workplace and stated that he did not believe it to be a given that all patients could achieve this level of performance. Finally, he again noted that multiple studies showed that 5-15% of fibromyalgia sufferers are unable to function at a sufficiently high level to remain reasonably active and that plaintiff's status put her within this group.
25. On March 18, 2004, Prudential denied plaintiff's third and final appeal for LTD benefits, concluding that "there are no medically determinable impairments documented in the records to support [the statement that plaintiff falls into the 5 to 15% of fibromyalgia sufferers who are unable to work] or to support restrictions from sedentary work." This final decision was reviewed by Prudential's Appeals Committee and denied.
E. Procedural History
26. On August 12, 2004, plaintiff filed the instant ERISA action alleging (i) that Prudential violated the requirements of ERISA section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), by failing to provide benefits under the Prudential Plan for which plaintiff was eligible, and (ii) that Prudential violated ERISA by failing to provide the "full and fair review" required by ERISA section 503, 29 U.S.C. § 1133.[32] Plaintiff seeks the following relief:
*988 (i) a declaration that she is totally disabled, within the meaning of the Prudential Plan, and that Prudential is obligated to provide her with disability benefits until she is no longer totally disabled;
(ii) a judgment equivalent to the disability benefit payments owed by Prudential since the date of her termination, plus interest, costs, and attorney's fees; and
(iii) an order instructing Prudential to reinstate any of plaintiff's life, health, and retirement insurance coverages that may have been terminated along with her LTD benefits.
F. Legal Standard
27. On de novo review, the task for a district court is to "consider the issue of whether the plaintiff is entitled to disability benefits `as if it had not been decided previously.'" Hughes v. Prudential Life Ins. Co. of Am., 2005 WL 839924, *5, 2005 U.S. Dist. LEXIS 6188, at *13 (W.D.Va.2005) (quoting United States v. George, 971 F.2d 1113, 1118 (4th Cir.1992)). Thus, no deference is owed to Prudential's determination that plaintiff is not entitled to benefits. And while there is discretion on de novo review to allow evidence not before the plan administrator if "necessary to conduct an adequate de novo review of the benefit decision,"[33] such additional evidence is not necessary to an adequate review and so analysis proceeds here on the record as presented to the Plan administrator.
28. The issue to be determined is whether plaintiff is totally disabled within the meaning of the Plan and thus entitled to LTD benefits. Under the terms of the Plan, to reach a finding of "Total Disability" once the Initial Duration has expired, it must be shown (i) that plaintiff is not working at any job for wage or profit, (ii) that she is under the regular care of a doctor, and (iii) that she is "not able to perform for wage or profit, the material and substantial duties of any job for which [she is] reasonably fitted by [her] education, training, and experience." The parties do not dispute the first two requirements and, for the reasons that follow, the record persuasively supports the conclusion that plaintiff has established the third.
G. Plaintiff Has Satisfied the Definition of Total Disability
29. It is undisputed that plaintiff suffers from fibromyalgia and inactive autoimmune disease syndrome. Every physician either to examine plaintiff or to review her file has diagnosed plaintiff with fibromyalgia or has not disputed this diagnosis, although they disagree about the severity of her symptoms. The experts also agree that plaintiff's autoimmune disease is inactive and cannot disable her from working. Thus, the key question is not whether plaintiff suffers from fibromyalgia for all experts agree on this point but whether her symptoms are so severe as to make plaintiff unable to perform the material and substantial duties of any job for which she is qualified.[34]
30. In essence, determining whether plaintiff's fibromyalgia is so severe as to make her totally disabled reduces to a credibility contest. On the one hand, Drs. Cupps, Gavora, Perlman, and Friedlis, the *989 latter Prudential's independent medical examiner, all concluded that plaintiff's symptoms are so severe as to disqualify her from working in any capacity. On the other hand, Drs. Kumpf, McBride, Scott, and Brachman, all retained or employed by Prudential and none of whom examined plaintiff, conclude that plaintiff is not totally disabled from work. Thus, it is necessary to determine which experts' opinions should be accorded decisive weight.
31. After a thorough review of the evidence in the record, it is appropriate to find that the most credible experts are those that concluded plaintiff is unable to work in any capacity Drs. Cupps, Gavora, Perlman, and Friedlis. Particularly persuasive in this regard is the opinion of Prudential's own independent medical examiner, Dr. Friedlis. Although independent medical examinations are not required, they can prove "especially significant" where, as here, "the plan administrator is operating under a conflict of interest or rejects a treating doctor's opinion."[35]Hughes, 2005 WL 839924, at *5, 2005 U.S. Dist. LEXIS 6188, at *15 (quoting Laser v. Provident Life & Accident Ins. Co., 211 F. Supp. 2d 645, 650-51 (D.Md.2002)); see also Case v. Cont'l Cas. Co., 289 F. Supp. 2d 732, 739-40 (E.D.Va.2003) (finding that rational decision maker acting under conflict of interest should not have discounted opinions of two treating physicians without seeking an independent examination of plaintiff). This sensible conclusion follows because an independent medical examiner has an opportunity to assess a plaintiff's symptoms first-hand and to make a determination regarding her ability to return to work that is not conflicted by the plan administrator's interest in reducing costs and increasing profits. Here, Prudential requested an independent medical examiner, but then rejected this examiner's findings, including his conclusions that plaintiff's cognitive difficulties were "clearly defined" by the record provided for review, and most significantly, his conclusion that plaintiff is not "capable of returning to the work force in any capacity." While Prudential is not bound by the findings of its IME, it is significant that Prudential did not seek a second examination by a different examiner. In any event, Dr. Friedlis' independent conclusions, as they are based on an extensive examination and interview, are persuasive.
32. Also persuasive is that every expert who physically examined or personally interviewed plaintiff concluded that she was unable to return to the work force in any capacity at this time. In sharp contrast to these opinions is that every Prudential expert to conclude that plaintiff has not satisfied Prudential's definition of "Total Disability," Drs. Kempf, McBride, Scott, and Brachman, never examined or interviewed plaintiff, but merely reviewed her medical file. Thus, their opinions are not persuasive. See Stup, 390 F.3d at 310 & n. 8 (rejecting reasoning of physician who had not seen nor examined plaintiff); Hughes, 2005 WL 839924, at *5, 2005 U.S. Dist. LEXIS 6188, at *15 (finding unpersuasive evaluation by physician who never examined plaintiff nor performed any type of clinical interview). Notably, Prudential relied on the opinions of these file reviewers, two of whom were Prudential employees, to deny plaintiff's claims for benefits. On the other hand, Drs. Cupps, Gavora, Perlman, and Friedlis, all of whom physically examined plaintiff, concluded that the severity of plaintiff's symptoms made her incapable of being employed in any capacity, *990 including sedentary work. By direct examination of plaintiff, these experts were able to assess first-hand plaintiff's symptoms (e.g. Dr. Perlman during a two-hour examination observed that plaintiff's "fatigue was intense and debilitating" and that she had trouble concentrating during objective testing). Moreover, these experts had an opportunity to assess plaintiff's veracity, particularly important in assessing a condition for which there is no laboratory diagnosis and that depends, in part, on self-reporting of symptoms. Importantly, Drs. Perlman and Friedlis specifically reported that plaintiff exhibited no evidence of malingering. In contrast, every expert to conclude that plaintiff could return to work never had an opportunity to make such first-hand observations. Thus, the opinions of plaintiff's examining experts and Dr. Friedlis are entitled to persuasive, indeed decisive, weight.
33. Prudential argues that were its decision reviewed for an abuse of discretion, which it is not, it could not be required to accord any special weight to plaintiff's treating physicians, citing the Supreme Court's holding in Black & Decker Disability Plan v. Nord, 538 U.S. 822, 833, 123 S. Ct. 1965, 155 L. Ed. 2d 1034 (2003) ("[C]ourts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant's physician."). While true, it is important to note, that the Supreme Court found that a plan administrator need not specially credit a claimant's treating physician, but said nothing about the relative credibility of examining physicians who have the opportunity to examine and interview plaintiff directly. The opinions of Drs. Cupps, Perlman, Gavora, and Friedlis are more persuasive not because they are treating physicians indeed not all are but because each physically examined and interviewed plaintiff.[36] And for the reasons already stated, examining experts may be more persuasive than those that merely review a paper record. Moreover, the Supreme Court also made clear that a plan administrator may not "arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician." Id. Put simply, a plan administrator still must credit the opinion of a treating physician if that physician does a better job. This is particularly important, where, as here, the reviewing task is not to determine whether Prudential abused its discretion by relying on its experts to the exclusion of plaintiff's treating physicians, but rather to determine on a de novo review of the record whether the evidence supports a finding that plaintiff was totally disabled. In this case, considering the evidence without the conflict attendant Prudential's decisions, it is clear that the examining physicians, including plaintiff's treating physicians, are more persuasive.
34. There are other reasons to reject the opinions of those experts that conclude that plaintiff is not totally disabled. Specifically, Drs. McBride and Scott, who reviewed plaintiff's file before recommending that she be denied benefits are both employed by Prudential (indeed Dr. McBride is Prudential's Medical Director) and thus operate under a conflict that might color their view of plaintiff's illness and the strength of the evidence presented to support its severity. Dr. Kumpf, although an independent file reviewer, appears to have given short shrift to his review. Dr. Kumpf reviewed plaintiff's file and issued only a cursory two-paragraph report, failing even to mention or address the diagnosis of fibromyalgia and including significant factual errors in his report.[37]
*991 35. Dr. Brachman's opinion is also subject to doubt. Although Dr. Brachman noted that plaintiff continued to work for a period of time following the onset of her symptoms, it is entirely logical, as Dr. Gavora suggests, that a fibromyalgia patient suffering from increasing pain and fatigue would attempt, for a time, to "fight through" despite decreased productivity and increasing pain and fatigue. Additionally, Dr. Brachman's opinion is not persuasive because she does not appear to believe that any patient with fibromyalgia can be totally disabled from sedentary work. Significantly, she concurred that plaintiff was accurately diagnosed with fibromyalgia and did not challenge directly the reported severity of plaintiff's symptoms. Instead, she drew broad, general conclusions about the ability of fibromyalgia patients to "perform even heavy work demands." Further, she asserted that "[t]he worst treatment for fibromyalgia patients is prolonged rest and removal from a sedentary workplace," and that such treatment "only exacerbates the symptoms and maintains the `sick state.'" Dr. Brachman discounts any possibility of a fibromyalgia sufferer having symptoms so severe that she is totally disabled from any sedentary work. Yet, Dr. Gavora persuasively refuted these sweeping conclusions and concluded, from his own review of the medical literature, that 5 to 15% of fibromyalgia sufferers are unable to function at a sufficiently high level to remain reasonably active. Indeed, the Fourth Circuit recently recognized that while many who suffer from fibromyalgia can carry on daily activities, some people have "such a severe case ... as to be totally disabled from working." Stup, 390 F.3d at 303 (upholding district court ruling that plan administrator abused its discretion by denying LTD benefits to fibromyalgia sufferer) (quoting Sarchet, 78 F.3d at 307) (citations omitted). Plaintiff should not be denied benefits based on the opinion of a single expert that fibromyalgia sufferers cannot be totally disabled. Thus, Dr. Brachman's opinion is not persuasive.
36. Therefore, based on the evidence in the record and relying on those experts found to be more credible, it is appropriate to conclude that plaintiff's symptoms are severe and that she is unable to perform the material and substantial duties of any job for which she is qualified. The evidence includes written opinions from two Board-certified internists, an educational psychologist who specializes in rehabilitative psychology and regularly testifies in disability hearings before the SSA, and Prudential's own Independent Medical Examiner, all of whom concluded that plaintiff is unable to perform even sedentary work. Dr. Cupps examined plaintiff on multiple occasions over an extended period of more than a year and concluded that plaintiff's fatigue, in and of itself disables plaintiff from performing even sedentary work. He reported that plaintiff cannot sustain the energy to perform normal activities for daily living for more than two hours at a time and requires significant naps throughout the day. Thus, he concluded that plaintiff "is unable to sustain the energy necessary to perform an eight hour work day." Likewise, Dr. Gavora, plaintiff's primary care physician, reported plaintiff's poor endurance, exercise tolerance and limited ability to perform tasks. He concluded that plaintiff is one of the ten percent of fibromyalgia and chronic fatigue patients who are disabled and not able to work because of their illness. Dr. Perlman, though not a physician, is certainly able as an educational *992 psychologist to assess the effect of plaintiff's symptoms on her ability to perform the material and substantial duties of any job for which plaintiff is qualified. He noted that plaintiff's "concentration and attention are significantly impaired," that plaintiff's "fatigue was intense and debilitating" and that she required regular naps that would not be tolerated in a competitive labor market. Based on his observations and the tests he administered, he concluded that plaintiff "could not sustain any gainful employment." The opinions of these experts plainly support the conclusion that plaintiff is unable to perform the material and substantial duties of any job for which she is reasonably qualified.[38]
37. Prudential challenges this conclusion, arguing that plaintiff's application for LTD should be denied because she has failed to provide any "objective medical evidence" of her disability. To be sure, it is appropriate for a plan administrator to accord substantial weight to the absence of objective evidence of a disability claim, especially if a claimant's subjective pain complaints are suspect or unreliable.[39]*993 Yet, this principle is not applicable here for plaintiff has provided some objective evidence of her condition and moreover, there is no reason to suspect the veracity of her self-reported symptoms or to believe that they might be unreliable.
38. To the extent that it is possible to submit objective evidence of her severe fibromyalgia condition, plaintiff has done so. Specifically, although no laboratory test is available to diagnose fibromyalgia, all physicians agree that upon a musculoskeletal exam plaintiff satisfies the objective standard for fibromyalgia established by the American College of Rheumatology of pain in 11 of 18 points located throughout the body. Moreover, plaintiff presented the results of a number of tests administered by Dr. Perlman, which furnish some objective evidence of plaintiff's cognitive difficulties, short-term memory problems, and pain in the course of performing routine tasks. Further, Dr. Castro, a neurologist, offered further objective evidence of plaintiff's cognitive disability noting "mild abnormalities conspicuous during an electroencephalogram." Prudential wants more. Yet, the Plan language does not explicitly qualify the type or quantify the amount of such evidence that is required to establish Total Disability; indeed, it does not explicitly require objective evidence at all. At least on de novo review, therefore, while it is appropriate to require plaintiff to offer objective evidence to corroborate her subjective complaints, it is not sufficient for Prudential to object that, even in the face of evidence that supports a finding of total disability, plaintiff must submit a specific type of objective evidence not in the record, or have her benefits presumptively denied.[40]
39. Moreover, if there is some objective evidence of a claimant's disability in the record, a claimant's subjective complaints, if reliable, should not be discounted out of hand. This is particularly true where, as here, there are no objective laboratory tests for the presence or severity of this potentially debilitating disease. See Sarchet, 78 F.3d at 305; Nat'l Institutes of Health, supra, at 4-5. It is plain that certain disabling conditions may exist with very little, or even no, objectively measurable signs or indicators. It is unreasonable in the circumstances, therefore, to reject evidence of self-reported symptoms resulting in disability where, as here, the plaintiff suffers from an illness that medical professionals agree is not readily susceptible to objective medical tests and where there is no evidence of malingering. Two physicians explicitly found that plaintiff exhibited no evidence of malingering, and no doctor who examined plaintiff found any reason to suspect that plaintiff was exaggerating her symptoms. Further, plaintiff consistently reported the same symptoms to multiple doctors over the course of more than two years.
*994 In sum, a de novo review of the record presented to Prudential as the Plan administrator persuasively shows that plaintiff has satisfied the definition of Total Disability and, therefore, that she is entitled to receive disability benefits retroactive to the date they were terminated.
An appropriate Order will issue.
NOTES
[1] Employee Retirement Income Security Act of 1974 (ERISA), as amended, 29 U.S.C. § 1001 et seq.
[2] Federal Home Loan Mortgage Corporation ("Freddie Mac").
[3] 29 U.S.C. § 1132(a)(1)(B) empowers participants in, or beneficiaries of, an ERISA-governed employee benefits plan to bring a civil action "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan."
[4] See 29 U.S.C. § 1002(1).
[5] Under an abuse of discretion standard, an administrator or fiduciary's decision will not be disturbed if it is "reasonable," which has been interpreted in this context to mean that the decision is "the result of a deliberate, principled reasoning process and [that] it is supported by substantial evidence." Brogan v. Holland, 105 F.3d 158, 161 (4th Cir.1997) (quoting Bernstein v. CapitalCare, Inc., 70 F.3d 783, 787 (4th Cir.1995)).
[6] It is also worth noting that even when the abuse of discretion standard is applied, where, as here, an ERISA-governed benefits plan is both funded and administered by the same entity, and thus the administrator operates under a conflict of interest, the reviewing court must apply a "sliding scale" of review in which the abuse of discretion standard is "lessened to the degree necessary to neutralize any untoward influence resulting from the conflict." Ellis v. Metropolitan Life Ins. Co., 126 F.3d 228, 232 (4th Cir.1997) (quoting Bedrick v. Travelers Ins. Co., 93 F.3d 149, 152 (4th Cir.1996)).
[7] The emphasis added here was not in the original. For the full definition of Total Disability, see infra Section III.
[8] See Ingram v. Martin Marietta Long Term Disability Income Plan, 244 F.3d 1109, 1111-13 (9th Cir.2001) (holding that plan language, "the carrier will make all decisions on claims ...," does not mean that plan administrator's decisions are final and unreviewable but rather makes clear that the plan administrator, not an employer or some other party, makes all administrative decisions to grant or deny claims).
[9] See Gallagher, 305 F.3d at 270 n. 6 (reasoning that delegation of authority to plan administrator to "make a determination regarding whether a claimant has submitted satisfactory proof [to the plan administrator] ... `implies nothing one way or the other about the scope of judicial review of its determination.'") (quoting Herzberger v. Standard Ins. Co., 205 F.3d 327, 332 (7th Cir.2000))
[10] See, e.g., de Nobel v. Vitro Corp., 885 F.2d 1180, 1186-87 (4th Cir.1989) (plan administrator given power "to determine all benefits and resolve all questions pertaining to the administration, interpretation, and application of plan provisions"); Herzberger, 205 F.3d at 331 (establishing "safe harbor" in Seventh Circuit of clear grant of discretion for the phrase, "Benefits under this plan will be paid only if the plan administrator decides that the applicant is entitled to them"); Conrad v. Cont'l Cas. Co., 232 F. Supp. 2d 600, 602 (E.D.N.C.2002) (plan granted "complete discretionary authority" to administrator); Pirozzi, 741 F.Supp. at 589 (eligibility for benefits could be denied "if the Plan determines, in its sole discretion, that care is not Medically Necessary").
Of course, it is well-settled that the grant of discretionary authority need not be explicit; the Fourth Circuit will recognize discretionary authority by implication, but the intention to grant such authority still must be clear. See Feder, 228 F.3d at 523; see also, e.g., Boyd v. Trustees of the United Mine Workers Health & Retirement Funds, 873 F.2d 57, 59 (4th Cir.1989) (reviewing benefits denial for abuse of discretion where plan granted administrators the "full and final determination as to all issues concerning eligibility for benefits" and "authorized [them] to promulgate rules and regulations to implement this plan").
[11] Prudential argued at the hearing, though not in its brief, that the Fourth Circuit's decision in Bernstein v. CapitalCare, Inc., 70 F.3d 783 (4th Cir.1995), did address this issue, holding that the term granted discretion to the plan administrator. This contention is incorrect; the parties in Bernstein did not dispute that the plan agreement granted discretion to the plan administrator; instead, they disputed only whether the plan administrator, operating under a conflict of interest, should be afforded less deference to account for the conflict of interest. See id. at 788. Thus, the Fourth Circuit in that case neither reached nor decided the question addressed here. Also worth noting is that the plan language at issue in Bernstein differed from the Prudential Plan language at issue here. Specifically, not only did the agreement state that benefits would be paid "`only if CapitalCare determines' that certain conditions are met," the agreement further provided that "CapitalCare may adopt reasonable policies, procedures, rules and interpretations to promote the orderly and efficient administration of this agreement." Id. (emphasis added). The Prudential Plan at issue here is not similarly modified by the restrictive phrase "only if," nor is it amplified by a similar explicit grant of discretion to interpret the Plan. In any event, Bernstein did not reach or decide the precise question presented here, and hence the cases that cite it for this proposition are not persuasive. See Eubanks v. Prudential Ins. Co. of Am., 336 F. Supp. 2d 521, 528 (M.D.N.C.2004) (relying on Bernstein to conclude that Prudential plan language confers discretion); Beam v. Prudential Ins. Co. of Am., 2004 WL 540520, at *2, 2004 U.S. Dist. LEXIS 4188, at *8-9 (M.D.N.C.2004) (same).
[12] See Nichols v. Prudential Ins. Co. of Am., 406 F.3d 98, ___, 2005 WL 913762, at *2 (2d Cir.2005); Rothstein v. Prudential Life Ins. Co., 2001 WL 793130, at *1, 2001 U.S. Dist. LEXIS 24740, at *2 (C.D.Cal.2001); O'Sullivan v. Prudential Ins. Co. of Am., 2001 WL 727033, at *1, 2001 U.S. Dist. LEXIS 8637, at *3-4 (S.D.N.Y.2001); Deal v. Prudential, 222 F. Supp. 2d 1067, 1070 (N.D.Ill.2002); Ehrman v. Henkel Corp. Long-Term Disability Plan, 194 F. Supp. 2d 813, 818 (C.D.Ill.2002). But see Fay v. Oxford Health Plan, 287 F.3d 96, 104 (2d Cir.2002) (concluding without explanation that "as determined by the ... Medical Director" conferred discretion); Clapp v. Citibank, N.A., 262 F.3d 820, 823 (8th Cir.2001) (holding that where disability was defined as "a mental or physical condition which the Claims Administrator/Fiduciary determines," abuse of discretion review was appropriate); McGraw v. Prudential Ins. Co. of Am., 137 F.3d 1253, 1259 (10th Cir.1998) (concluding, without explanation, that "determined by Prudential" confers discretion).
[13] In Phelps, the Fourth Circuit noted that the perplexities that arise from the application of the summary judgment standard in ERISA cases "arise chiefly when courts are reviewing claims for benefits under 29 U.S.C. § 1132(a)(1)(B)." 394 F.3d at 218. Yet, because the parties there pressed no such claims, the panel proceeded to examine the appeal under the normal summary judgment standard. Id. at 218.
[14] Although Judge Cole announced the judgment of the court, he concluded that it was unnecessary to decide whether the lower court's entry of summary judgment was an appropriate way to dispose of ERISA cases generally. See Wilkins, 150 F.3d at 616-17. Thus, Judge Gilman delivered a separate opinion, in which Judge Ryan concurred, which constituted the opinion of the court on the issue of the proper procedural posture for claims raised under § 1132(a)(1)(B). See id. at 617.
[15] See Quesinberry v. Life Ins. Co., 987 F.2d 1017, 1025 (4th Cir.1993) (permitting introduction of additional evidence in limited circumstances on de novo review).
[16] It is well-settled in the Fourth Circuit that there is no right to a jury trial in proceedings to determine rights under employee benefits plans. See Ellis v. Metropolitan Life Ins. Co., 919 F. Supp. 936, 937 (E.D.Va.1996) (citing Berry v. Ciba-Geigy Corp., 761 F.2d 1003, 1007 (4th Cir.1985)).
[17] Not decided here is whether a different answer might obtain when a district court reviews a plan administrator's decision under a deferential abuse of discretion standard. In that case, different from a court conducting a de novo review of a plan administrator's denial of benefits, the district court is limited to the evidence that was before the plan administrator at the time of the decision. See Sheppard & Enoch Pratt Hosp. v. Travelers Ins. Co., 32 F.3d 120, 125 (4th Cir.1994) (reaffirming holding in Berry v. Ciba-Geigy, 761 F.2d at 1007). Additionally, instead of making its own findings of fact, the district court reviews the findings of the administrator to determine whether they are reasonable. Id. Thus, it may be that the summary judgment standard, designed to determine whether "there are any genuine factual issues that properly can be resolved" by a fact-finder at trial would make little sense when applied on abuse of discretion review and thus is inappropriate. Anderson, 477 U.S. at 250, 106 S. Ct. 2505; see also Phelps, 394 F.3d at 218 (noting that Fourth Circuit shares Sixth Circuit's reservations articulated in Wilkins and citing Berry v. Ciba-Geigy). In any event, it is unnecessary to decide this issue because the review here is de novo.
[18] Factors that might warrant the introduction of additional evidence include the following: "claims that require consideration of complex medical questions or issues regarding the credibility of medical experts; the availability of very limited administrative review procedures with little or no evidentiary record; ... instances where the payor and the administrator are the same entity and the court is concerned about impartiality; ... and circumstances in which there is additional evidence that the claimant could not have presented in the administrative process." Quesinberry, 987 F.2d at 1027.
[19] See Muller v. First Unum Life Ins. Co., 341 F.3d 119, 124 (2d Cir.2003) (vacating grant of "motion for judgment on the administrative record," and remanding for findings of fact and conclusions of law pursuant to Rule 52, Fed.R.Civ.P.); Connors v. Conn. Gen. Life Ins. Co., 272 F.3d 127, 134 (2d Cir.2001) (reviewing findings and conclusions made after "de novo review of the administrative record"); Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir.1999) (reversing grant of summary judgment and remanding to resolve genuine issue of fact by "trial on the administrative record") (en banc).
[20] Of course, it may be that in the large majority of cases, as here, the paper record will present at least some material issue of fact. Because of this, the Sixth Circuit concludes that there is little benefit to having the district court "first filter the administrator's ruling through a summary-judgment strainer." Wilkins, 150 F.3d at 619. Nonetheless, even if summary judgment is not often granted, there appears to be no reason to abandon the well-established summary judgment standard, or to fashion a standard untethered to the Federal Rules. Moreover, in those cases that present no genuine issue of fact, the district court is free to resolve the matter on summary judgment (without making detailed findings of fact and conclusions of law).
[21] The Schedule of Benefits reflects that the Initial Duration period is the Elimination period (180 days) plus twenty-four (24) months.
[22] Plaintiff argued before the Plan administrator that she is entitled to 70% of her monthly salary because she enrolled in the "Buy-Up Plan," which entitles participants to a higher percentage of their monthly earnings than the "Core Plan." This appeal was twice denied because, according to Prudential, plaintiff left work less than twelve (12) months after purchasing the Buy-Up Plan, and thus, was not entitled to coverage for pre-existing conditions, including fibromyalgia. Appeals of this decision were twice denied and plaintiff has not requested review of this decision here.
[23] Patients that suffer from this disorder may also experience fatigue, irritable bowel syndrome, sleep disorder, chronic headaches, jaw pain, memory impairment, skin and chemical sensitivities, as well as dizziness and lightheadedness. See id. Prudential does not contest plaintiff's diagnosis of fibromyalgia, but only whether her fibromyalgia renders her totally disabled under the meaning of the Prudential Plan.
[24] Plaintiff began experiencing fatigue as early as 1994 and she experienced the onset of her other symptoms in 1997. The record suggests that these symptoms worsened over time.
[25] See supra ¶ 4.
[26] To establish Total Disability during the Initial Duration, a plan participant must show that she is "unable to perform for wage or profit, the material and substantial duties of her occupation [emphasis added]."
[27] It appears that an original copy of this March 6, 2000 letter was not included in the record, but it is cited multiple times in letters from plaintiff's counsel before the plan administrator. Despite plaintiff's reliance on this letter in its briefing, defendant did not object to its admission and so it is appropriate to rely on it here.
[28] These tests included the Rey Auditory Memory test, on which plaintiff performed at the first percentile when compared with adult norms, the Wide Range Achievement Test 3rd revision (WRAT-3), on which plaintiff received scores less than expected given her four-year college degree, which reflected "some problems in concentration combined with fatigue," and the Wechsler Adult Intelligence Scale-Revised (WAIS-R), on which she showed average intelligence, but Dr. Perlman noted "considerable intra-subtest scatter suggesting problems with concentration and attention and limitations with functioning." Dr. Perlman also noted that seriously limiting her behaviors on this final test were "deficits in concentration, ability to stay focused, fatigue, discomfort and pain in various joints and muscles."
[29] After the Initial Duration, an applicant for benefits under the Plan must show that the applicant is unable "to perform for wage or profit, the material and substantial duties of any job [emphasis added] for which [she is] reasonably fitted by [her] education, training, or experience," not just plaintiff's current occupation.
[30] According to plaintiff, Prudential never requested this raw test score data.
[31] The SSA defines disability as "[t]he inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months." 20 C.F.R. § 404.1505(a). To meet this definition, an applicant must show that she has a "severe impairment(s) that make you unable to do your past relevant work ... or any substantial gainful work that exists in the national economy." Id.
[32] The parties did not raise this claim in their briefs or at oral argument. Nor does the complaint allege any facts to suggest that plaintiff was denied "a full and fair review" as required by 29 U.S.C. § 1133. Thus, because the complaint fails to state a claim with respect to this count, it must be dismissed. See Rule 12(b)(6), Fed.R.Civ.P.
[33] See Quesinberry, 987 F.2d at 1025.
[34] Some experts, including Drs. Gavora, Friedlis, and Castro, have also diagnosed plaintiff with chronic fatigue syndrome. No experts have openly challenged this diagnosis and it appears that some have instead attributed plaintiff's profound fatigue to her fibromyalgia. In any event, regardless of the diagnosis, it is clear that many experts agree that plaintiff's fatigue is profound and disabling, while others dispute this assessment.
[35] This principle operates in the de novo context as it does in the abuse of discretion context, as Hughes reflects. See 2005 WL 839924, at 5-6, 2005 U.S. Dist. LEXIS 6188, at *15-16.
[36] For example, Dr. Friedlis is an examining physician, hired by Prudential to conduct an independent examination of plaintiff, but is not plaintiff's treating physician.
[37] For example, Dr. Kumpf noted that plaintiff had worked for 10 years despite her symptoms when, in fact, plaintiff did not experience the onset of most of her symptoms until late in 1997, less than two years before she left her job.
[38] Worth noting, though not dispositive, are two additional arguments raised by plaintiff. The first is that Prudential is bound by its conclusion in January 2001 that plaintiff was totally disabled because it found that she could not perform the responsibilities of her sedentary occupation. Thus, plaintiff argues, plaintiff is also totally disabled under the "any job" standard applicable after the Initial Duration because any other job plaintiff might perform would also be sedentary. See Hensley v. IBM, 123 Fed.Appx. 534, 538 n. 2, 2004 WL 2857576, *3 n. 2 (4th Cir.2004) (unpublished disposition) (finding that "regular occupation" definition of disability was functionally equivalent to "any occupation definition" where dispute focused on applicant's ability to perform any sort of sedentary labor). To be sure, Prudential did not identify any reasons for its conclusion that plaintiff was unable to perform her sedentary job as a Senior Business Analyst, but yet is able to perform some different sedentary job. And there is certainly reason to be skeptical of such a seeming reversal of decision to grant benefits, especially where, as here, the plan administrator operates under a conflict. Nonetheless, a participant has no vested right to a benefits decision, once made, and a plan administrator is free to change a benefits decision upon further investigation and review. See Hensley, 123 Fed.Appx. 534, 538 n. 2, 2004 WL 2857576, *3 n. 2. The key inquiry is not whether Prudential changed its mind, but whether the evidence in the record, considered de novo, supports a finding of Total Disability.
Plaintiff also points to the Social Security Administration's ("SSA") ruling that plaintiff has been under a "disability," as defined in the Social Security Act, since March 15, 1999. It is well-settled that SSA decisions are not binding on a plan administrator and that there is "no obligation to weigh the agency's disability determination more favorably than other evidence." Elliott v. Sara Lee Corp., 190 F.3d 601, 607 (4th Cir.1999) (holding that Social Security determinations are not binding, particularly when disability standards are not analogous). Further, the Supreme Court recently warned that critical differences between the Social Security disability program and ERISA benefits plans caution against importing standards from the first context into the second. See Nord, 538 U.S. at 832-33, 123 S. Ct. 1965 (rejecting application of treating physician rule from Social Security proceedings in ERISA context). In any event, although SSA determinations are not binding or controlling, it is worth noting that the Administrative Law Judge ("ALJ") in plaintiff's SSA case reached conclusions about plaintiff's condition similar to the conclusions reached here. Thus, the ALJ found (i) that plaintiff is under a "disability," (ii) that plaintiff is unable to perform her past work or any substantial gainful work that exists in the economy, (iii) that plaintiff suffers from fibromyalgia and chronic fatigue syndrome, (iv) that plaintiff's assertions concerning her ability to work are credible, and (v) that she is unable to perform sedentary work for an 8-hour workday.
[39] See Williams v. UNUM Life Ins. Co. of Am., 250 F. Supp. 2d 641, 648-49 (E.D.Va.2003) ("Without an objective component to this proof requirement, administrative review of a participant's claim for benefits would be meaningless because a plan administrator would have to accept all subjective claims of the participant without question."); Hensley, at 539-40, 2004 WL 2857576, *3 (overturning district court's benefits award where district court relied on subjective pain complaints despite evidence of symptom magnification); Lown v. Continental Casualty Co., 238 F.3d 543, 546 (4th Cir.2001) (upholding denial of benefits where treating physician offered only his own opinion of disability based on his many years' experience of treating patients); Ellis, 126 F.3d at 231 (approving reliance on board of non-treating consultants over opinions of treating doctors who credited claimant's pain complaints but could not pinpoint etiology).
[40] For example, Prudential objects that plaintiff offered evidence of her cognitive disability from Dr. Perlman, an educational psychologist, and of mild abnormalities conspicuous during an "electroencephalogram," which Dr. Castro found indicated "cognitive dysfunction." Instead, it argues that plaintiff must submit evidence of neuropsychological testing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2436202/ | 314 S.W.2d 749 (1958)
W. E. GLIDEWELL, O. J. Jones, Individually and for and on Behalf of all Members of Local Union 453 of the International Brotherhood of Electrical Workers, L. G. DeCamp and Louis O'Neal, Individually and for and on Behalf of All Members of 591 of Springfield, Missouri, of the Amalgamated Association of Street, Electric Railways and Motor Coach Employees of America, Plaintiffs-Appellants,
v.
George K. HUGHEY, Dorsey Heer, C. Frank Knox, Herman Powell, Peyton Enloe, Frank Clark, Herman Cox, David C. Scott and J. V. Cloud, Members of and Constituting the Board of Public Utilities of the City of Springfield, Missouri, Daniel C. Rogers, G. H. Frieling, Albert Fults, Carl L. Spaid and John A. White, Members of and Constituting the Missouri State Board of Mediation, John M. Dalton, Attorney General of the State of Missouri, Phil M. Donnelly, Governor of the State of Missouri, and The City of Springfield, Missouri, a Municipal Corporation, Defendants-Appellants.
No. 45972.
Supreme Court of Missouri, En Banc
July 14, 1958.
*750 Walker, Daniel, Clampett & Rittershouse, B. H. Clampett, Springfield, for plaintiffs-appellants.
J. Weston Miller, Mayte B. Hardie, Miller, Fairman & Sanford, Springfield, for George K. Hughey et al., Members of Board of Public Utilities of City of Springfield, Mo., and City of Springfield, Mo.
HYDE, Judge.
Declaratory judgment action by plaintiffs, representing labor unions, for declarations as to the rights of the parties under Art. 16 of the Charter of the City of Springfield; that unions have the right to enter into collective bargaining agreements with the Board of Public Utilities of the city respecting wages, hours and working conditions, as set forth in certain proposed contracts; and that the State Board of Mediation has jurisdiction to furnish mediation services in any labor disputes that might arise between the unions and the Board. The court entered judgment making some declarations favorable to plaintiffs' contentions but declaring that the Board did not have the right to enter into the proposed contracts; and both plaintiffs and defendants have appealed.
The case was tried on an agreed statement of facts, and some other evidence, including proposed contracts submitted to the Board by the unions, the Constitution *751 and By-Laws of the unions, membership applications and obligations of union members and the new Charter of the city. The City of Springfield adopted its own charter on March 17, 1953, in accordance with the provisions of § 19, Art. VI, 1945 Constitution, V.A.M.S. Prior to that time, it had been a city of the second class and had acquired an electrical generating and distribution system and a bus transportation system, which were operated by a Board of Public Utilities under authority of §§ 91.330-91.440. (Statutory references are to RSMo. and V.A.M.S.) Prior to the adoption of the charter, and after our decision in State ex rel. Moore v. Julian, 359 Mo. 539, 222 S.W.2d 720, concerning the applicability of the King-Thompson Act to cities of the second class, the former Board, operating under §§ 91.330-91.440, made collective bargaining agreements with the unions concerning wages, hours and working conditions. After the adoption of the charter, the city notified the unions that it considered it had no legal authority to enter into such contracts and that the State Board of Mediation had no jurisdiction over it.
The judgment entered made the following declarations:
"1. Defendants George K. Hughey, Dorsey Heer, Herman Cox, Herman Powell, C. Frank Knox, Frank Clark, Peyton Enloe, David C. Scott and J. V. Cloud, members of the Board of Public Utilities of Springfield, Mo., are agents of the said City entrusted with the duty and clothed with the power to operate the utilities owned by the said City, and as such are proper parties to this action since their powers and duties are affected by this judgment.
"2. The King-Thompson Act, Chapter 295, R.S.1949, is a valid legislative enactment of the State, and applies to public utilities municipally owned as well as those privately owned.
"3. The State Board of Mediation, created by said King-Thompson Act has jurisdiction to use its mediation services in labor disputes between the Board of Public Utilities of the said City and its employees.
"4. By an Act of 1945, Secs. 91.330 to 91.440 R.S.1949, the State effected a separation of governmental and proprietary functions of cities of the second class, which then included the City of Springfield, and provided that as to such cities the operation of municipally owned utilities was a proprietary function.
"5. The charter of the said City, adopted March 17, 1953, by popular vote did not materially alter the status of the City Utilities of Springfield as a proprietary function of the City.
"6. Under the laws of the State and the said charter of the City of Springfield the said City, acting through its Board of Public Utilities, has the power to enter into collective bargaining agreements with its employees operating said Utilities relating to wages, hours and working conditions, subject to certain limitations hereinafter mentioned.
"7. Under said charter, employees of the Utilities can be hired, promoted, reduced or discharged only in accordance with rules established by the Board. Therefore, the said Board of Public Utilities cannot enter into such agreements providing:
"A. A closed shop, or the employment of only members of a labor union, or a requirement that employees join a union, or that employees shall not join a union.
"B. That employees be promoted, demoted, laid off, reemployed or discharged according to seniority or any other form of favoritism.
"C. Approval by a union or any board or committee of a union as a prerequisite to the employment or promotion of any person.
"D. Recognition of a labor union as the sole bargaining agent for all of the employees of said Board, but may bargain with a union as agent for such employees as have chosen the union as their bargaining representative.
"8. For the foregoing reasons the Board of Public Utilities of said City does not have the right to enter into agreements as *752 set forth in exhibits A and B attached to plaintiffs' second amended petition."
We have jurisdiction because this appeal involves the construction of § 29, Art. 1, Constitution, and the constitutionality of the King-Thompson Act, Chapter 295, §§ 295.010-295.210. State officers also are parties.
Before reaching the merits, it is necessary to consider defendants' contention that the members of the Board are not proper parties to this action. Defendants say this is true because the Board does not have power or capacity to sue or be sued as such and the individuals who constitute the Board at any time cannot in their individual capacities bind the Board or the city. It is true, of course, that the city is the real party and the necessary party defendant; and, as defendants say, citing 64 C.J.S. Municipal Corporations § 2195, p. 1034, and McQuillin, Municipal Corporations, 3d Ed., § 49.16, suits against a municipal corporation should be in its corporate name and not against its officers, corporate authorities or the individuals composing them. However, that does not mean that the individual members of the Board are not proper parties in a declaratory judgment suit in which the city is made a party. See 39 Am.Jur. 853, § 5, also p. 889, § 27; 67 C.J.S. Parties § 1, p. 889; Brotherhood of Stationary Engineers v. City of St. Louis, Mo.App., 212 S.W.2d 454, 458; Durwood v. Dubinsky, Mo.Sup., 291 S.W.2d 909. Section 507.040(1) (which is the same as Federal Rules of Civil Procedure, rule 20, 28 U.S.C.A.) gives broad authority for permissive joinder of defendants; and it was intended to extend to all civil actions the principles of permissive joinder which had been followed in equity. See also § 527.110. This authority should be liberally construed in a declaratory judgment suit, which has its historical affinity in equity, and with which may be heard claims for affirmative equitable relief. (See Liberty Mutual Ins. Co. v. Jones, 344 Mo. 932, 130 S.W.2d 945, 125 A.L.R. 1149; Union National Bank v. Jessell, 358 Mo. 467, 215 S.W.2d 474.) Therefore, in view of the duties imposed upon the members of the Board by the city charter and the equitable remedies that would be available against them in connection with this action, we hold they were proper parties.
On the merits, plaintiffs say the court's declarations were correct concerning the validity and applicability of the King-Thompson Act and the separation of the governmental and proprietary functions, with authority to make collective bargaining contracts, but contend the court erroneously declared the Board's power to so contract was limited to the extent stated in paragraph 7, and in subparagraphs A to D thereof, and in paragraph 8. Defendants say the declaration in paragraph 8, that the Board does not have the right to enter into the specified proposed agreements, is correct but that the court erred in making every other declaration and also contend that all the other declarations are merely advisory in character as to abstract matters without the purview of the Declaratory Judgment Act. We think more is presented here than merely the authority to enter into the two specified proposed contracts because the city contends it has no authority to make any contract with plaintiffs about wages, hours, and working conditions and plaintiffs seek a declaration of the rights of the parties to make such contracts under § 16 of the city's charter. We hold there is a justiciable controversy between the unions and the city as to the authority of its Board to enter into collective bargaining contracts relating to wages, hours and working conditions, the validity and applicability of the King-Thompson Act to the public utilities owned by the city and the jurisdiction of the State Board of Mediation in connection with their operation. See City of Nevada v. Welty, 356 Mo. 734, 203 S.W.2d 459; City of Springfield v. Clouse, 356 Mo. 1239, 206 S.W.2d 539; King v. Priest, 357 Mo. 68, 206 S.W.2d 547; Tietjens v. City of St. Louis, 359 Mo. 439, 222 S.W.2d 70; City of Camdenton v. Sho-Me Power Corp., Mo.Sup., 237 S.W.2d 94. The authority of the city, as a city of the second class, "to make collective bargaining contracts, *753 with labor unions representing city employees, concerning wages, hours, collection of union dues, and working conditions" [356 Mo. 1239, 206 S.W.2d 541], was the issue in the Clouse case. We have the same issue here concerning the authority of the city under its constitutional special charter but the effect of the King-Thompson Act (adopted after the Clouse case arose) must also be considered in determining it. The controversy would not be settled by merely deciding that the city did not have authority to make the two specified proposed contracts because the real issue is whether or not, under the city's present charter, wages, hours and working conditions of city employees in its electric and transportation systems can be a matter of bargaining and contract to any extent at all. In the Tietjens case the justiciable controversy was the authority of the City of St. Louis to control the rental of property; here it is authority of the City of Springfield to enter into contracts fixing wages, hours and working conditions of city employees. Section 527.020 provides for a declaration of rights, status or other legal relations under any instrument, statute, ordinance, contract or franchise. Certainly the rights, liabilities, duties and obligations of the parties under the city's charter, with respect to the matters herein involved, are within this authority; and we, therefore, hold that an actual controversy exists about them between the parties hereto whose interests concerning them we find to be adverse in fact.
Plaintiffs rely on State ex rel. Moore v. Julian, supra, but what we held there, 222 S.W.2d loc. cit. 725, was that the mediation provisions of the King-Thompson Act must be construed as applying to labor disputes in municipally owned public utilities in cities of the second class. Of course, that ruling was based on the view expressed in the Clouse case, 206 S.W.2d loc. cit. 546, that the Legislature might separate corporate functions, and employees engaged therein, and provide for their operation and management in some manner distinctly apart from other city functions so that employer and employee relations could be handled on a basis similar to private industry; and it was considered that the Act of 1945 (Laws 1945, p. 1270, now §§ 91.330-91.440) had made a sufficient separation to make the King-Thompson Act applicable. However, the City of Springfield was not a party to the Julian case and the extent of its authority to make any collective bargaining contracts at that time was not directly raised or decided; nor was the validity of the 1945 Act as authority for such contracts considered. The decision as to the authority of the State Board of Mediation in second class cities was based upon both acts construed together. In any event, that case does not pass upon and is not controlling in determining the authority of the city under its present charter to engage in bargaining with its employees. Therefore, we will consider the situation presented by the new charter.
The charter provides for a "council-manager government" and that "all powers of the city shall be vested in an elective council", subject only to limitations of the State Constitution and the charter, "which shall enact local legislation, adopt budgets, determine policies, and appoint the City Manager." (1.2) Among the specifically stated powers of the Council to act by ordinance are: "purchase, hire, lease, construct, own, maintain, and operate public utilities" (2.16[2]); "contract and be contracted with, and sue and be sued" (2.16[25]); "establish and enforce gas, electric and public transportation rates, and rates and charges for all other utilities owned and operated or services furnished by the City" (2.16[31]); and "provide for all personnel necessary to carry on the function of all departments and agencies of the City." (2.16[38]) The Charter also provided: "Except as specifically otherwise authorized or provided in this charter all Boards, Departments and Agencies of the City shall be subject to legislative control of the City Council." (15.4) The Charter in Article 16 further provided: "public utilities now owned *754 or which may in the future be acquired, shall be controlled and operated by a Board known as the Board of Public Utilities" (16.2[1]); and provided for a Board of nine members (16.2[2]) nominated by the Mayor and approved by a majority vote of the Council. (16.3) The duties of the Board were "to take charge of and exercise control over any public utilities now owned or operated by or hereafter acquired by the city and all extensions thereof and the appurtenances thereto belonging, and with the right and power to establish, maintain and operate such park and recreation areas and facilities in the manner and as the Board may determine, with plans for the development of parks and recreational areas having first been submitted to and approved by the City Council, upon real estate and properties acquired or held in connection with utilities as a part of said utilities operations." (16.6) Among the powers of the Board were "to hire such persons in the manner herein provided as are necessary to operate the said utilities, to agree upon or provide the terms of their compensation, to discharge the same." (16.7) The manner referred to was thus stated (16.14): "The said Board shall appoint and may remove the manager; who may, with the approval of the Board, appoint and remove his assistants and the heads of departments; all other employees shall be hired, promoted, reduced or discharged in accordance with rules established by the Board designed to secure and retain employees strictly on the basis of their merit and without regard to favoritism. The Board shall determine the duties and compensation of all employees. No individual member of the said Board shall request or recommend the employment retention, promotion, reduction, retardation or discharge of any employee and such request or recommendation shall be sufficient cause for removal of such Board member from office."
Other provisions concerning control of the Council are that obsolete or surplus property may be sold or disposed of by the Board "in the manner provided by ordinances for the disposition of such property by the City" (16.6); that the Board must prepare and submit to the Council, not less than 30 days prior to the end of the fiscal year, a budget showing its estimated revenue and expenditures for the coming year, the Council having power to reduce or delete items of expenditures (16.8); that approval of the budget by the Council "shall be deemed to be an appropriation of the money authorized for disbursement thereby" (16.9); that records of receipts and disbursements be furnished to the City Director of Finance and be open to inspection of the Council at any time, with quarterly reports of its transactions to the Council (16.11); that purchases be made in accordance with rules made by the Board, approved by the Council, but "in such manner as to take advantage of the combined purchasing power of the City as a whole wherever practicable" (16.12); that rates shall be fixed by the Board subject to the approval of the Council (16.13); and that the Board and Council "shall have joint authority and control over the reserves and funds of such utilities as are not required to pay the usual and proper costs of operation, depreciation," etc. requiring a two-thirds vote of the Council and Board in joint session for action if the Council does not approve the Board's recommendations. (16.16) Finally it was provided (19.21): "Any Board established by the provisions of this Charter may be abolished and the facilities, powers and duties of said Board transferred to a department of the City Government either then existing or to be established by the City Council for the assumption thereof, upon the two-thirds majority vote of the total membership of the City Council and the Board being abolished meeting in joint session."
It seems apparent from these charter provisions that there is no separation of the corporate functions of the city concerning its public utilities and employees engaged therein with provisions for their operation in a manner distinctly apart from other city functions. On the contrary, these utilities and the employees engaged therein are clearly subject to and regulated by the exercise of the legislative powers of the city. Not only does the City Council have the *755 final decision on the utilities budget, rates and disbursements but the Board may even be abolished and its facilities, powers and duties transferred to a department either then existing or to be established by the City Council. It is true that the members of the Board have a vote on the matter of abolishment in a joint meeting with the Council and that a two-thirds vote of the joint meeting is required for this purpose. (This is also required for certain uses of reserves and funds.) Thus the members of the Board are made in effect ex officio members of the Council for certain matters upon which they may vote. This is certainly the exact opposite of the kind of separation referred to as required in the Clouse and Julian cases and shows that the regulation and control of utilities is wholly within the legislative powers of the city. Instead of being set up in the nature of a separate municipal corporation with power to sue and be sued (which is not granted) the Board is only an administrative body or department of the City Government, with certain legislative powers delegated to it by the Charter with reference to employees (as hereinafter shown) and with its members being part of the legislative department of the city for certain purposes. It may be noted also that the Board has functions concerning and control over establishment and operation of parks and recreation areas, which has to some extent been held to be a governmental function. 63 C.J.S. Municipal Corporations § 907, p. 317, § 1057, p. 686. This authority also is subject to the action and approval of the Council.
The Charter provision as to employees is very different from the one in the statute considered in the Julian case, 222 S.W.2d loc. cit. 722, under which employees served only during the pleasure of the Board. The Charter provision (16.14) is that "employees shall be hired, promoted, reduced or discharged in accordance with rules established by the Board designed to secure and retain employees strictly on the basis of their merit and without regard to favoritism." This is a delegation of legislative power by the Charter to the Board to set up a merit system of employment, separate from the merit system provided by the Charter (6.5, 6.6) for other city employees in its classified service. It is specified that this is to be done by "rules established by the Board" and the Board has no authority to do it in any other way, certainly not to contract away this authority. If this duty is legislative, it cannot become a matter of bargaining and contract. City of Springfield v. Clouse, supra, 206 S.W.2d loc. cit. 545; see also City of Los Angeles v. Los Angeles Building & Construction Trades Council, 94 Cal. App. 2d 36, 210 P.2d 305; Miami Water Works Local No. 654 v. City of Miami, 157 Fla. 445, 26 So. 2d 194, 165 A.L.R. 967; Mugford v. Mayor and City Council of Baltimore, 185 Md. 266, 44 A.2d 745, 162 A.L.R. 1101; City of Detroit v. Division 26 of Amalgamated Ass'n of Street, Electric Railway & Motor Coach Employees, 332 Mich. 237, 51 N.W.2d 228; New York City Transit Authority v. Loos, 2 Misc. 2d 733, 154 N.Y.S.2d 209; City of Cleveland v. Division 268 of Amalgamated Ass'n of Street & Electric Railway & Motor Coach Employees, Ohio Com.Pl., 90 N.E.2d 711; Weakley County Municipal Electric System v. Vick, (Tenn.), 309 S.W.2d 792; McQuillin Municipal Corporations § 12.140. As said in the Los Angeles case, 210 P.2d loc. cit. 311, "to hold to the contrary would be to sanction government by contract instead of government by law." Upon consideration of the Charter as a whole, we think the matter of qualifications, tenure, compensation and working conditions in this public service involves the exercise of legislative powers. The City Council controls the amounts available for compensation by its authority over the rates, budget and appropriations. The Board has authority only to establish and follow merit system rules. The Legislative Department of the city even has the ultimate power to abolish the Board and have its functions transferred to another department of the city government then existing or established by the Council for that purpose. It is a familiar principle of constitutional law that no legislature can bind itself or its successor *756 to make or continue any legislative act. As we held in the Clouse case, § 29, Art. I, Constitution, does not confer any collective bargaining rights upon public officers or employees in their relations with municipal government and we hold that it is not applicable to the situation in this case because there is no such separation of the public utilities of the city from its general governmental functions and legislative powers as would be required to make it applicable. Therefore, our conclusion is that under the present charter of the city the whole matter of qualifications, tenure, compensation and working conditions in the city's public utilities involves the exercise of legislative powers and cannot become a matter of bargaining and contract.
As to the jurisdiction of the State Board of Mediation, we think it must be held that it has no jurisdiction in municipalities in which there is no separation of municipally owned public utilities with provision for their operation in some manner distinctly apart from other city functions so that their employer and employee relations could be handled on a basis similar to private industry. That is the construction we place on the Julian case and we think must follow from our construction of § 29, Art. I, Constitution. Therefore, we hold that where, as here, the whole matter of qualifications, tenure, compensation and working conditions in the city's public utilities involves the exercise of the city's legislative powers, so that these matters cannot become a matter of bargaining and contract, then the King-Thompson Act is not applicable and the State Board of Mediation is without jurisdiction. Since we hold the King-Thompson Act is not applicable in this case, the questions raised herein as to its constitutionality become moot questions in this case and, therefore, will not be considered herein.
The judgment and decree of the Court is affirmed as to declarations 1 and 8 and reversed as to all other declarations and the cause is remanded with directions to make new declarations in lieu of declarations 2 to 7, inclusive, in accordance with the views herein expressed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435921/ | 367 F. Supp. 2d 201 (2005)
Antonio V. NUÑEZ NUÑEZ, et al., Plaintiffs,
v.
William VAZQUEZ IRIZARRY, et al., Defendants
No. CIV. 04-2275JP.
United States District Court, D. Puerto Rico.
April 5, 2005.
*202 Antonio Núñez-Núñez, San Juan, PR, Pro Se.
José Enrico Valenzuela-Alvarado, Esq., Department of Justice, Ineabelle Santiago-Camacho, Esq., Reichard & Escalera, San Juan, PR, for Defendant.
OPINION AND ORDER
PIERAS, Senior District Judge.
I. INTRODUCTION
Before the Court is co-Defendant William Vázquez Irizarry and co-Defendants Jack Allison and the Puerto Rico Highway Authority's unopposed motions to dismiss (docket Nos. 15 and 16). Although the Complaint is no model of clarity, the Court understands Plaintiffs to be bringing this case before the Court pursuant to 42 U.S.C. § 1983, alleging damages as a result of the construction of Puerto Rico Highway Route 66. Without any supporting case law or any sort of developed argument, Plaintiffs generally allege they suffered damages in the amount of Eight Million Dollars ($8,000,000.00).
Defendants in this case are William Vázquez Irizarry, former Secretary of Justice for the Commonwealth of Puerto *203 Rico, Engineer Jack Allison, Executive Director of the Highway Authority, the Puerto Rico Highway Authority, the Transportation and Public Works Department, the Commonwealth of Puerto Rico, and several unknown insurance companies and Defendants. Defendants Vázquez Irizarry, Allison, and the Puerto Rico Highway Authority now pray this Court to dismiss the complaint on a variety of grounds. Finding it can dismiss this case solely on the basis of res judicata, and for the foregoing reasons, the Court hereby GRANTS Defendants' motion to dismiss.
II. PROCEDURAL BACKGROUND
On September 28, 1998, the Puerto Rico Highway Authority (hereinafter the "PRHA") commenced the process of expropriating Plaintiffs' property before the Puerto Rico Court of First Instance, San Juan Part. On October 28, 1999, Núñez filed a Complaint in tort against the PRHA, alleging damages as a result of the allegedly illegal condemnation procedure carried out by the PRHA. On October 18, 2001, during a Status Conference, and with Plaintiff's consent the Court of First Instance consolidated the tort action with the expropriation case. Through a Judgment dated April 23, 2003, the Court of First Instance found that the eminent domain proceeding had been effected according to the law, and that no due process violations were evident, and dismissed the case.
On June 5, 2003, Plaintiff Antonio Núñez Núñez filed an appeal before the Puerto Rico Circuit Court of Appeals, which was dismissed through a Resolution dated July 22, 2003. On August 15, 2003, Plaintiff filed a motion for reconsideration before the Puerto Rico Circuit Court of Appeals, which was denied through a Resolution dated August 21, 2003. On September 29, 2003, Plaintiff filed a Writ of Certiorari to the Supreme Court, which was also denied. Finally, on December 2, 2003, Plaintiff filed a Motion for Reconsideration from said Order, which was also denied on January 9, 2004. On November 16, 2004, Plaintiff filed the instant case.
III. STANDARD
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may, in response to an initial pleading, file a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. It is well-settled, however, that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); see also Miranda v. Ponce Fed. Bank, 948 F.2d 41 (1st Cir.1991). The Court must accept as true "all well-pleaded factual averments and indulg[e] all reasonable inferences in the plaintiff's favor." Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996) (citations omitted); see also Berrios v. Bristol Myers Squibb Caribbean Corp., 51 F. Supp. 2d 61 (D.Puerto Rico 1999) (Pieras, J.). A complaint must set forth "factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery under some actionable theory." Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 28 n. 2 (1st Cir.1996) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988)). The Court, however, need not accept a complaint's "`bald assertions' or legal conclusions" when assessing a motion to dismiss. Abbott, III v. United States, 144 F.3d 1, 2 (1st Cir.1998) (citing Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1216 (1st Cir.1996)). It is with this framework in mind that this Court will assess the motion before it.
IV. ANALYSIS
The doctrine of res judicata meaning, literally, that the thing has been *204 decided binds parties from litigating or re-litigating any issue or claim that was adjudicated in a prior case. Res judicata issues arise because of the commonly accepted practice in both federal and state judicial courts of concurrent jurisdiction; that is, when similar claims based on a similar set of facts and involving the same parties are allowed to proceed simultaneously in different courts. See Colorado River Water Conservation Dist. v. U.S., 424 U.S. 800, 96 S. Ct. 1236, 47 L.Ed.2d, 483 (1976). When jurisdiction is proper in the federal district court, it is only in exceptional circumstances that the court can abstain or dismiss the action in deference to an identical or similar state court proceeding. Id. at 1244. Dismissal by the court of cases properly before it is justified only in those situations where an "important countervailing interest" would be served. County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 79 S. Ct. 1060, 3 L. Ed. 2d 1163 (1959).
Under res judicata, when identical causes of action are filed, the first judgment entered generally bars adjudication of claims in the second action without regard to the order in which the actions were filed, and regardless of which forum it was filed in. 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction, § 4404 (1981). The doctrine of res judicata, now called claim preclusion, forecloses litigation of all matters which have been litigated or might have been litigated in an earlier case. Id. The rule of collateral estoppel, now termed issue preclusion, precludes re-litigation of issues actually adjudicated. Id. at § 4402.
The landmark case of Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980) served to bolster the constitutional principle that all federal courts must give preclusive effect to a state court judgment when the courts of the state from which the judgment was rendered would do so. It is a well established principle that judicial judgments shall be given the "same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken." 28 U.S.C.A. § 1738 (2001).
It is also settled law that the applicable rules regarding collateral estoppel are not "federally created, but are those of the state from which the judgment is taken". Baez Cruz v. Municipality of Comerio, 140 F.3d 24, 29 (1st Cir.1998) (citing Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481-82, 102 S. Ct. 1883, 1897-98, 72 L. Ed. 2d 262 (1982)); see also Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971, 974 (1st Cir.1989); and Cruz v. Melecio, 204 F.3d 14, 18-19 (1st Cir.2000). Therefore, if Puerto Rico courts would give preclusive effect to the judgment of a state court, then this Court must also give preclusive effect to said judgment. Futura Development Corp. v. Centex Corp., 761 F.2d 33 (1st Cir.1985). In Puerto Rico, judgments can be given preclusive effect if they are final and on the merits. See Millan v. Caribe Motors Corp., 1961 WL 13796, 83 D.P.R. 494 (P.R.1961); Manrigue v. Aguayo, 37 P.R. Dec. 314, 320 (P.R.1927); Stitzer v. University of Puerto Rico, 617 F. Supp. 1246, 1254 (D.Puerto Rico 1985).
A. Finality for the Application of Preclusion
As previously stated, on October 28, 1999, Plaintiff filed a Complaint in the Commonwealth of Puerto Rico Court of First Instance, San Juan Part, alleging unlawful expropriation practices on behalf of the Highway Authority and damages resulting therefrom. On January 9, 2004, the Supreme Court of Puerto Rico rendered *205 a Resolution where it denied Plaintiff's Motion for Reconsideration in said case.
In most states, the judgment of any lower court is considered final immediately and thus, immediately appealable. See 18 Wright, Miller & Cooper, Id. at § 4433. However, because the federal court is bound by state law when the judgment in question was rendered by a state court, Allen v. McCurry, 449 U.S. at 96, 101 S. Ct. 411, in some jurisdictions, the federal court sitting in that jurisdiction will honor the state rule that no preclusive effect will be given to the judgment until it becomes final on appeal. See Eichman v. Fotomat Corp., 759 F.2d 1434, 1439 (9th Cir.1985). This applies squarely to Puerto Rico.
The idea that a judgment is not final until fully resolved on appeal is reinforced by the Puerto Rico Rules of Civil Procedure. Unlike the Federal Rules of Civil Procedure, which presume the finality of a trial court judgment unless a party files a motion to stay the effect of the judgment, See Fed.R.Civ.P. 62, Puerto Rico Rule of Civil Procedure 53.9 states that a judgment of a lower court is automatically stayed once it is appealed. "Once an appeal or petition for review is filed, all further proceedings in the lower court regarding the judgment appealed from ... shall be stayed." 32 P.R. Laws Ann. Ap. III R. 53.9 (2000). Therefore, a judgment is final during the pendency and until the resolution (and reconsideration) of an appeal has been dealt with by the court.
As applied to the case at bar, the Supreme Court issued its Resolution regarding the Commonwealth case on January 9, 2004, wherein it denied Plaintiff's motion for reconsideration. Therefore, under the law of Puerto Rico, the issue is final and consequently the Court is bound by the law of Puerto Rico in applying the res judicata doctrine.
31 P. R. Laws Ann. § 3343 (2000), the res judicata statute, provides:
Only a judgment obtained in a suit for revision shall be effective against the presumption of the truth of the res judicata.
In order that the presumption of the res judicata may be valid in another suit, it is necessary that, between the case decided by the sentence and that in which the same is invoked, there be the most perfect identity between the things, causes, and persons of the litigants, and their capacity as such.
Although the statute itself only discusses res judicata, now more commonly known as claim preclusion, it has also been interpreted to include what was previously known as collateral estoppel, which courts now term issue preclusion. Baez-Cruz, 140 F.3d at 29; Texaco Puerto Rico, Inc. v. Medina, 834 F.2d 242 (1st Cir.1987) (citing A & P Gen. Contractors v. Asociacion Cana, Inc., 10 P.R. Ofic. Trans. 987, 995-96 (P.R.1981)).
Under Puerto Rico law, it has been established that the party asserting claim preclusion or res judicata must establish: (1) the existence of a prior judgment on the merits which is "final and unappealable," De Jesus v. Guerra Guerra, 1976 WL 40114, 105 D.P.R. 207 (P.R.1976); (2) the perfect identity of thing or cause, and (3) the perfect identity of parties and the capacity in which they acted. Boateng v. InterAmerican University, Inc., 210 F.3d 56 (1st Cir.2000). Defendants allege that all these factors are present in the case at bar, that res judicata therefore applies to the Commonwealth court judgment, and that consequently, this action must be dismissed.
B. Finality for the Application of Res Judicata
As is well known, the Puerto Rico Supreme Court has held that in order to be *206 given res judicata effect, a judgment must be "final y firme", or "final and unappealable." Rivera v. Insurance Co. of Puerto Rico, 1974 WL 36773, 103 D.P.R. 91 (P.R.1974); Sucesion De Pablo Zayas Berrios v. Justo Berrios, 1964 WL 14300, 90 P.R. Dec. 551 (P.R.1964). The analysis in this instance is the same as section "a" above, Finality for the application of preclusion. Therefore, the Resolution rendered by the Supreme Court of Puerto Rico is also final and unappealable for res judicata purposes.
C. Identity of Thing or Cause
It is evident, from the Judgment rendered by the Court of First Instance, San Juan Part, that the cause, facts and claims upon which Plaintiff based his Complaint in the Commonwealth court are, in fact, the same as the cause and claims stated in the case before this Court. Plaintiff's cause of action in the Commonwealth forum centered on allegations of due process violations and unlawful taking. Plaintiff alleged that: a) the expropriation proceeding was made illegally and without his consent; b) that he was not allowed to properly respond to the petition for expropriation; c) his property was demolished without affording him the right to answer the expropriation petition; d) his personal belongings were put into storage and were subsequently sold at auction; e) he was unjustly compensated for his property and f) he was not able to testify at the hearing since he had no legal counsel. As a result thereof, he alleges he suffered damages. A careful perusal of the Complaint filed in this Court evidences that both causes of action are predicated on the same set of facts: damages resulting from the alleged unlawful expropriation of Plaintiffs' residence and the allegedly unjust value tendered by the Government for it.
Furthermore, the Commonwealth court rendered its Judgment, wherein it held that: the expropriation proceeding was effected pursuant to the law; that Plaintiff was duly notified thereof and was paid just compensation for his property; that demolition was properly and timely effected after the Highway Authority was already owner of the lot; that Plaintiff did not timely challenge the compensation received during the expropriation lawsuit, and held that Plaintiff lacked a cause of action regarding both the expropriation issue and the damages issue. It is evident to the Court that these are exactly the same claims present before it in this lawsuit. Therefore, the required identity of object and cause between the Commonwealth case and the suit herein is present for res judicata purposes.
D. Identity of Parties
Regarding this last requirement, it is clear that the Commonwealth case did not include co-Defendants Jack Allison, the Puerto Rico Department of Transportation and Public Works, the Commonwealth of Puerto Rico and William Vázquez Irizarry. However, it has been well established that Puerto Rico's mutuality requirement is not a strict one; rather, that some courts have liberally interpreted said requirement. See Futura Dev. Corp. v. Centex Corp., 761 F.2d 33 (1st Cir.1985).
Defendants aver that the aforementioned Defendants, which were not a part of the Commonwealth case, hold the same interest as the PRHA, and therefore, that privity exists. See, e.g., Aerojet-General Corp. v. Askew, 511 F.2d 710, 719 (5th Cir.) (holding that, under federal law, "a person may be bound by a judgment even though not a party if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative"), cert. denied, 423 U.S. 908, 96 S. Ct. 210, 46 L. Ed. 2d 137 (1975). The Court agrees that these Defendants' interests are the same as PRHA. Indeed, Plaintiffs' main *207 claims center around the fact that procedures were allegedly not followed in the expropriation proceedings, and therefore, they suffered damages. This Court would be deciding on this very issue once again, but against Jack Allison, the Puerto Rico Department of Transportation and Public Works, the Commonwealth of Puerto Rico and William Vázquez Irizarry. The Court therefore cannot see how the interests of these new Defendants differs from the PRHA's interest in the original claim, which the Commonwealth Court already decided in the PRHA's favor.
Regarding the remaining Plaintiffs, who are three of Plaintiff Núñez' relatives, there is not a single allegation on their behalf in the Complaint. Again, a cursory review of the Complaint suffices to attest that all the allegations contained in the Complaint refer at all times to Plaintiff Antonio V. Núñez Núñez. Plaintiffs Julia Núñez-Díaz and Eladia Núñez-Núñez are only mentioned in the prayer for relief for moral damages, but there are no allegations against any of the Defendants from either of these Plaintiffs. As to co-Plaintiff Víctor Núñez, although included in the case caption, nowhere in the Complaint is he mentioned, he has raised no allegations against any Defendant, and there is no prayer for relief or request for damages on his behalf. Therefore, the Court agrees with Defendants, and concludes that the Plaintiff in both cases is Antonio Núñez Núñez. Consequently, the Court finds that this final requirement of res judicata is also met.
E. Full and Fair Opportunity to Litigate
Finally, the Court brings to the attention of the parties one last issue: the notion that due process imposes an added requirement in order for res judicata to apply that the precluded party must have had a full and fair opportunity to litigate their case in the earlier proceeding. Allen, 449 U.S. at 95, 101 S. Ct. 411; Cruz v. Melecio, 204 F.3d at 19; Massachusetts Sch. of Law at Andover v. American Bar Ass'n, 142 F.3d 26, 39 (1st Cir.1998); Medina v. Chase Manhattan Bank, 737 F.2d 140, 145 (1st Cir.1984).
In the Commonwealth case, the Court can see that Plaintiffs not only had an opportunity to litigate this case; they had an opportunity to litigate all the issues raised herein against all Defendants in the current case. That is to say, all of the Plaintiffs herein had an opportunity to litigate all the present causes of action against all of the Defendants herein in the Commonwealth case.
V. CONCLUSION
Therefore, the Court hereby HOLDS that res judicata applies to this case, and consequently, all of Plaintiffs' claims against all Defendants are precluded. As a result thereof, the Court hereby DISMISSES all claims brought by Plaintiffs against all Defendants, WITH PREJUDICE.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1324948/ | 289 S.C. 319 (1986)
345 S.E.2d 492
Rossie N. REID and Paul W. Reid, Respondents
v.
HARBISON DEVELOPMENT CORPORATION, and Sam D. Coogler, Builder, Inc., Defendants, of whom Sam D. Coogler, Builder, Inc., is No Longer A Party. PETITION OF HARBISON DEVELOPMENT CORPORATION.
22573
Supreme Court of South Carolina.
Heard February 12, 1986.
Decided June 16, 1986.
*320 Robert F. Fuller, of Rogers, McDonald, McKenzie, Fuller & Rubin, Columbia, for petitioner.
James C. Chandler, Jr., Columbia, for plaintiffs-respondents.
Heard Feb. 12, 1986.
Decided June 16, 1986.
FINNEY, Justice:
The plaintiffs-respondents, Rossie N. Reid and Paul W. Reid, brought this action against the defendants-respondents, Harbison Development Corporation (now Petitioner) and Sam D. Coogler, Builder, Inc., alleging fraud and deceit growing out of a contract whereby the Reids were to *321 buy realty. Sam D. Coogler, Builder, Inc., is in bankruptcy and is no longer a party to this proceeding.
At trial, the jury found in favor of the Reids actual damages in the amount of twenty thousand ($20,000.00) dollars, plus punitive damages in the amount of twenty thousand ($20,000.00) dollars. Harbison motioned for a new trial on the grounds that the jury was influenced by caprice and prejudice, and in the alternative, for a new trial nisi "... to reduce the amount of the actual damages award to at least the amount which the plaintiffs themselves testified was their damage under the evidence, which ought to be in the range of $4,000 to $5,000 dollars as indicated by plaintiffs' own testimony." The trial judge overruled both motions stating: "Where it may be high, it may be more than would reasonably be expected, I think it is within the range that a jury could return in this case, and that it is not such that the Court can set aside."
Harbison appealed the order of the trial court. The Court of Appeals, in its opinion filed May 6, 1985,[1] set aside the twenty thousand ($20,000) dollar actual damages verdict ruling that there was no evidence to substantiate more than five thousand ($5,000.00) dollars actual damages. The twenty thousand ($20,000.00) dollar punitive damages verdict was sustained. The Court of Appeals remanded the case to the trial court for the purpose of determining the appropriate amount of actual damages.
This Court granted Harbison's Petition for Writ of Certiorari, and the case has been rebriefed on the following issues.
I. Are the issues of liability for fraud and of damages for fraud, actual and punitive, inextricably interwined so as to require consideration by a single trier of fact to effect fairness of verdict?
II. Are actual and punitive damages in a fraud case sufficiently separate or distinct issues as to enable a new trial or ascertain proper actual damages without disturbing an award of punitive damages arising out of the same trial and evidence?
*322 Prior to our opinion in the case of Industrial Welding Supplies v. Atlas Vending Co., 276 S.C. 196, 277 S.E. (2d) 885 (1981), it was the law of this state that if a new trial was granted on any ground, the case would be retried in its entirety. In Industrial, the Court adopted the more modern view that where there are separate jury issues and a new trial is required on issues which are distinct from all other issues, the scope of the new trial may be limited to less than all issues originally submitted.
We agree with the Court of Appeals that the trial court erred in allowing the twenty thousand ($20,000.00) dollar actual damages verdict to stand. The verdict was excessive because the evidence indicated actual damages in the maximum amount of five thousand ($5,000.00) dollars. We do not agree that the case should be remanded for a new trial solely on the issue of actual damages.
Generally, actual damages should not be separated from punitive damages for a retrial on actuals alone. Punitive damages may only be awarded if actuals are recovered, Carroway v. Johnson, 245 S.C. 200, 139 S.E. (2d) 908 (1965); Allen v. Southern Rwy. Co., 218 S.C. 291, 62 S.E. (2d) 507 (1950); 25 C.J.S. Damages Section 118; and therefore, retrial only on actual damages may be improper since punitive damages may change depending on the actual damage award. In the interest of justice and fairness to all parties, both actual and punitive damages should be reconsidered together on retrial.
The excessiveness of the verdict may be corrected by one of two ways: 1) The Reids may be required to remit the excess as an alternative to a new trial; or 2) a new trial on the issues of actual and punitive damages. See 58 Am. Jur. (2d) New Trial Section 221, in which we find the following:
Indeed, it has been held that in the absence of passion or prejudice, no logical basis exists for granting a new trial unconditionally on the ground of excessiveness of the verdict; the prevailing party should be given the option of accepting a smaller amount or submitting to a new trial. The appellate court, in like manner, may affirm the judgment on the condition that the plaintiff *323 remit a part of the amount for which it has been rendered, making the remittitur of such part an alternative to the granting of a new trial.
The case is hereby remanded to the Court of Common Pleas for Richland County for the purpose of having a judge thereof issue an order directing a new trial on actual and punitive damages unless the Reids agree in writing to remit fifteen thousand ($15,000.00) dollars of the actual damages verdict within fifteen (15) days after notice of the order. Should the Reids remit, final judgment shall be entered in favor of the Reids in the amount of five thousand ($5,000.00) dollars actual damages plus twenty thousand ($20,000.00) dollars punitive damages. If the Reids fail to remit within fifteen (15) days, a new trial shall be ordered on both actual and punitive damages.
Affirmed in part and remanded.
HARWELL, and CHANDLER, JJ., concur.
NESS, C.J., not participating.
GREGORY, J., and LITTLEJOHN, Acting Associate Justice, concurring in part and dissenting in part in separate opinions.
GREGORY, Justice (concurring in part, dissenting in part):
I concur with the majority opinion in holding a new trial must be granted on both actual and punitive damages. However, I dissent insofar as the majority opinion gives the Reids the option of remitting $15,000.00 of actual damages in lieu of a retrial.
The jury awarded respondents $20,000.00 in actual damages although there was no evidence to support an award of more than $5,000.00. This grossly excessive award clearly influenced the $20,000.00 punitive damage award. I would hold, under the facts of this case, that both awards were obviously the product of passion, caprice or prejudice. See Rogers v. Florence Printing Co., 233 S.C. 567, 106 S.E. (2d) 258 (1958).
Accordingly, I would reverse and remand for a new trial absolute.
*324 LITTLEJOHN, Acting Associate Justice (concurring in part, dissenting in part):
I am in partial disagreement with the majority opinion. That disagreement grows out of the fact that I do not think that the issues of liability for fraud and of damages for fraud, actual and punitive, are so inextricably interwined as to require consideration by a single trier of fact in order to bring about a fair verdict.
Litigation is expensive, not only to the litigants but to the taxpayers as well. The modern tendency in the interest of judicial economy is to avoid new trials where verdicts are in debate if the will of the jury can be ascertained and given effect. In 76 Am. Jur. (2d) Trial § 1208, we find:
A verdict in a civil case which is defective or erroneous as to a mere matter of form not affecting the merits or rights of the parties may be amended by the court to conform it to the issues and to give effect to what the jury unmistakably found. In fact, it is the duty of the judge to look after its form and substance, so as to prevent a doubtful or insufficient finding from passing into the records of the court, and every reasonable construction should be adopted for the purpose of working the verdict into form so as to make it serve. Thus, when the intent of the jury is apparent, their verdict will be sufficient to sustain a judgment entered in conformity with the intent of the verdict. (Emphasis added.)
I would let the punitive damages stand and remand the case to the trial court as ordered by the Court of Appeals, and give to the Reids the alternative of going to trial as to only actual damages unless they elect to remit the excess of actual damages in the amount of $15,000. This represents the maximum effect of the error. It could be corrected at the option of the Reids without the necessity of a new trial.
NOTES
[1] Reid v. Harbison Development Corporation, 285 S.C. 557, 330 S.E. (2d) 532 (S.C. App. 1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2436009/ | 367 F. Supp. 2d 4 (2005)
UNITED STATES OF AMERICA
v.
Bruce Scott ZISKIND, Defendant.
No. CR. 02-10016DPW.
United States District Court, D. Massachusetts.
January 25, 2005.
*5 William J. Cintolo, Cosgrove, Eisenberg & Kiley, PC, Boston, MA, Robert M. Goldstein, Quincy, MA, for Defendant.
Fred M. Wyshak, Jr., United States Attorney's Office, Boston, MA, for Plaintiff.
MEMORANDUM AND ORDER
WOODLOCK, District Judge.
The defendant has moved for a stay of execution of his sentence on grounds that two developments in the Supreme Court since his conviction cast doubt respectively on the integrity of the jury's verdict and the propriety of his sentence.
I
With respect to the verdict's integrity, the defendant contends that he was deprived of his ability to confront a witness against him in violation of the Supreme Court's confrontation clause analysis set forth last term in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). It is apparent that the defendant would have benefitted from the rule announced in Crawford had it been handed down before his trial. I would, in reliance upon Crawford, have rejected any effort to permit out-of-court *6 statements of the alleged non-testifying co-conspirator, John Murray, from being brought to the attention of the jury either by reading from his plea colloquy or by stipulation.
A more difficult issue is presented by the question whether the defendant adequately preserved his objection. The defendant acquiesced in a stipulation to avoid introduction of Murray's plea colloquy. It was apparent to me that the defendant viewed the stipulation as the lesser of alternative evils. Although his principal practical concern was the direct inculpatory character of the statement a concern ameliorated by the tailoring of the stipulation I was alerted regarding the basic Confrontation Clause evidentiary rationale for the defendant's objections. I did make my initial ruling about admissibility anticipating further tailoring the manner of presentation. And while the defendant did not fully frame the objection further before me, I am satisfied that I received sufficient notice of the defendant's concerns so that it would not be unfair for him to pursue the issue on appeal having been, for all intents and purposes, rebuffed at the trial court level.
Whether the Court of Appeals will find the issue was ventilated sufficiently to permit appellate review on anything beyond plain error scrutiny, cf. United States v. Gomes, 177 F.3d 76, 80 (1st Cir.1999), is a separate question upon which I offer no opinion. It may be that an appellate court would view the course of proceedings in the trial court as constituting a waiver or a forfeiture of the precise Crawford objection defendant now presses with specificity. Further, it may be that the error will be subject to review under a relatively forgiving harmless error analysis.
My own view is that the defendant's substantial rights were not affected by the erroneous introduction of the Murray evidence, cf. Fed.R.Evid. 103(a), especially in light of the strategic choice the defendant made regarding an appropriate defense and given the weight of the evidence against him. Of course, the decision to pursue a statute of limitations defense, while conceding criminal activity before the end of the limitations period, may itself have been a response to the Murray evidence.[1] I will for purposes of considering the defendant's request for relief make the assumption arguendo that the erroneous introduction of the Murray evidence could result in a new trial and will address the implications of such an outcome in Section III below.
II
The defendant correctly anticipated that aspects of the former sentencing guidelines regime for the federal courts was doomed by the Supreme Court's decision last term in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). However, the outcome of United States v. Booker, ___ U.S. ___, 125 S. Ct. 738, 756, 160 L. Ed. 2d 621 (2005) (opinion of Breyer, J.) as to remedy directs that the guidelines be treated as advisory. Treating the guidelines in such a fashion, I find that the sentence imposed under the mandatory guidelines scheme would in all likelihood be the sentence I would impose under an advisory guidelines sentencing scheme. Consequently, I am of the view that refinement of federal sentencing guidelines law provided by Booker is of no particular assistance in supporting the defendant's *7 claims of material impropriety in his sentence.
III
Returning to the arguendo assumption that the defendant would be entitled to a new trial as a result of the Crawford error discussed in Section I, I confront the question whether the defendant may be entitled to release pending re-trial in order to minimize the amount of potentially "dead time" he might serve.[2] It is clear, however, from my treatment of the effect of the erroneous Murray evidence ruling, that I believe the case against the defendant was quite strong. More importantly, the defendant is not a good candidate for bail. He brazenly engaged in separate criminal activity during the same period of time he was on trial before me. Given defendant's demonstrated track record of indifference to indeed contempt for his obligation to obey the law especially while enlarged on bail, it is unlikely a judicial officer would be able to conclude by clear and convincing evidence that there are any conditions which could be imposed to assure this defendant would pose no danger to the community pending any re-trial. 18 U.S.C. § 3143(b). Given what I understand to be the defendant's projected release date should his conviction stand (July 2008), I am satisfied at this point that the remaining term of imprisonment will exceed the total of the time already served plus the expected duration of the appeal (and, if necessary, any new trial). Consequently, there is no reason to stay execution of the sentence because defendant is unlikely, in any event, to be released on bail even if a retrial is ordered.
IV
For all these reasons, I deny the defendant's motion for a stay of execution of his sentence.
NOTES
[1] I note, however, that in his motion for a stay the defendant continues to rely upon the statute of limitations defense.
[2] If the sentence in the instant case were to be vacated, I understand the defendant would be deemed to have completed in November 2004 the incarcerative portion of the partially concurrent sentence imposed by Judge Saris in Criminal No. 03-10077-PBS for the offense he committed while the trial in this case was ongoing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435931/ | 367 F. Supp. 2d 1238 (2005)
FAEGRE & BENSON, LLP, Felicia J. Boyd, and John H. Hinderaker, Plaintiffs,
v.
William S. PURDY, Sr., Please Don't Kill Your Baby, and Does 1-10, Defendants.
No. CIV. 03-6472MJDJGL.
United States District Court, D. Minnesota.
April 27, 2005.
*1239 *1240 John P. Borger, Felicia J. Boyd, Molly K. Beutz, Faegre & Benson LLP, Minneapolis, MN, for Plaintiffs.
Douglas Brian Altman, Altman & Izek, Minneapolis, MN, for William S. Purdy, Sr., for purposes of the contempt hearing.
MEMORANDUM OF LAW & ORDER
DAVIS, District Judge.
I. INTRODUCTION
This matter is before the Court on Plaintiffs' Motion for Order to Show Cause and for Clarification of Injunction. [Docket No. 91] Defendant William Purdy also filed a third motion requesting recusal of Judge Michael Davis. [Docket No. 111] The Court heard oral argument on March 7, 2005.
II. FACTUAL BACKGROUND
A. Procedural Background
Plaintiffs Faegre & Benson, LLP ("Faegre"), Felicia Boyd, and John H. Hinderaker filed a complaint against William S. Purdy, Sr., Please Don't KILL Your Baby ("PDKYB"), and Does 1-10, on December 15, 2003, alleging that Defendants registered numerous internet domain names that are confusingly similar to Faegre's protected mark and that statements on the web sites were defamatory.
On January 5, 2004, the Court issued an order granting Plaintiffs' motion for a preliminary injunction and for a temporary restraining order ("January 5 Order"). The January 5 Order applied to Purdy and stated, in relevant part:
2. Defendants and their officers, agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this Order are also preliminarily enjoined from registering or using any domain name that both (1) incorporates, and is identical or confusingly similar to, Faegre's distinctive and protected marks FAEGRE & BENSON, FAEGRE, FAEGRE.COM or FAEGRE & BENSON LLP or any other marks identical or confusingly similar to any marks used or owned by Faegre, and (2) does not alert the Internet user to the protest or critical commentary nature of the attached web site within the language of the domain name itself.
* * * * * *
5. Defendants and their officers, agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this Order are also preliminarily enjoined from using any trademark that is identical or confusingly similar to Faegre's distinctive and protected *1241 marks FAEGRE & BENSON, FAEGRE, FAEGRE & BENSON LLP, and FAEGRE.COM, or any other mark used or owned by Faegre.
6. All Defendants and their officers, agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this Order are temporarily and preliminarily prohibited and enjoined from displaying any web site, the appearance of which is identical or confusingly similar to the trade dress of Faegre's web site at faegre.com.
* * * * * *
11. All Defendants and their officers, agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this Order are ordered to cease illegal appropriation of the names of the Plaintiffs and all individuals associated or affiliated with the Plaintiffs.
Purdy filed an appeal of the January 5 Order with the Eighth Circuit Court of Appeals, and the Eighth Circuit affirmed that Order on April 4, 2005.
On September 1, 2004, the Eighth Circuit issued an opinion affirming a similar injunction against Purdy in the case of Coca-Cola Co. v. Purdy, 382 F.3d 774 (8th Cir.2004). On September 2, 2004, this Court issued an Order ("September Contempt Order"), based on Plaintiffs' first motion for contempt, finding Purdy in contempt of its January 5 Order for 1) failing to transfer ownership of three domain names specifically addressed in the January 5 Order; 2) registering and using a number of domain names that were identical or confusingly similar to Faegre's trademarks in violation of the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d) ("ACPA"); and 3) illegally appropriating Plaintiff Felicia Boyd's name. [Docket No. 86] Purdy appealed the Court's September Contempt Order, and the Eighth Circuit dismissed Purdy's appeal on November 23, 2004.
On November 16, 2004, Plaintiffs filed this second motion for contempt.
B. Trade Dress
Beginning in March 2004, and continuing until at least February 16, 2005, Purdy has posted a web page at johnkerryspeaks.com that contains portions of Faegre's trade dress. Exh. 60 to Fourth Beutz Decl. (web page as of March 2004); Exh. 68 to Fifth Beutz Decl. (web page as of April 2004); Exh. 96 to Seventh Beutz Decl. (web page as of November 2004); Exh. 126 to Eighth Beutz Decl. (web page as of February 2005). Plaintiffs refer to this web page as "Counterfeit Faegre Page 1." The web page contains large, graphic photographs that purport to show aborted fetuses. The main text on the page discusses Purdy's opinion that Faegre is attempting to silence his speech criticizing its alleged support of abortion. In the upper-left-hand corner of the web page, below the name "Faegre & Benson LLP," is the disclaimer "Critical Satire Parody Page."
In September 2004, Purdy posted an altered version of Faegre's redesigned web page at pleas edontkillyour baby.com/faegre-benson-law-firm-blood-dripping.htm and at the democraticnational committee.com/officialfaegre-bensonlawofficewebsite.htm. Plaintiffs refers to this web page as "Counterfeit Faegre Page 2." Exh. 97 to Seventh Beutz Decl. (web page as of November 2004). The domain name faegre-law-love-democraticjudges michaeldavis-judge annmontgomery.com, which is registered to PDKYB, also directs users to Counterfeit Faegre Page 2. Seventh Beutz Decl. ¶ 4; Exh. 98 to Seventh Beutz Decl.; Exh. 121 to Eighth Beutz Decl. (web page as of February 2005). Counterfeit Faegre Page 2 also *1242 contains copying of Faegre's trade dress. In the upper-left-hand corner, under the name "faegre.com," is the phrase "Official Faegre Parody Website." Prominently displayed at the top and center of the web page are graphic pictures that purport to show aborted fetuses. The main text on the page discusses Purdy's opinion that Faegre & Benson is attempting to silence his speech criticizing its alleged support of abortion.
Purdy also posted a third iteration of an altered faegre.com web page at pleasedontkillyour baby.com/faegre-benson-law-firm-blood-dripping.htm, which Plaintiffs refer to as "Counterfeit Faegre Page 3." See Exhs. 101-05 to Seventh Beutz Decl. (web page as of September 2004 through November 2004). Counterfeit Faegre Page 3 also appears at other domain names, such as pleasedontkill yourbaby.com. See Seventh Beutz Decl. ¶ 12; Exhs. 123, 125, 127 to the Eighth Beutz Declaration (multiple versions of web page as of February 2005). Counterfeit Faegre Page 3 contains copying of Faegre's trade dress and is dominated by a large graphic photograph purporting to show a dismembered fetus. In the upper-left-hand corner of the web page, below the name "faegre.com" is the phrase "Official Faegre Website Parody." As on the previous two web pages, the main text on the page discusses Purdy's opinion that Faegre & Benson is supporting abortion and is attempting to silence his speech criticizing its alleged support of abortion.
C. Infringing Domain Names
Purdy has posted web pages at the following four domain names, all of which Faegre alleges violate the ACPA: faegre-benson-tencommandments.com, faegre-benson-vote forpresidentbush.com, john-faegre-kerry.com, and faegre-law-love-democraticjudges michaeldavis-judgeannmontgomery.com. In its September Contempt Order, the Court specifically ordered Purdy to cease using the first three of these domain names. Sept. 2 Contempt Order at 14-15. [Docket No. 86] On January 20, 2005, Purdy ceased to post content at the first three web sites. Eighth Beutz Decl. ¶ 4; Purdy Decl. ¶ 3; Exh. 120 to Eighth Beutz Decl.
D. Metatags
The source code of Purdy's Counterfeit Faegre Pages 2 and 3 contain metatags from faegre.com, including the trademarked terms "Faegre & Benson" and "Faegre and Benson," and some meta-descriptions taken from Faegre's web page. See generally Fifth Scoville Decl. [Docket No. 97]
A `meta tag' is a list of words normally hidden in a web site that acts as an index or reference source identifying the content of the web site for search engines. This has been analogized to the subject index of a card catalog indicating the general subject of a book.
4 McCarthy on Trademarks & Unfair Competition § 25:69 (4th ed.) (footnote omitted). Internet search engines use a variety of factors to rank web pages, including metatags. Id.
Due in part to Purdy's extensive use of Faegre's metatags and the content of the faegre.com web page, certain internet search engines, such as Yahoo, prominently display his web sites in results generated in response to queries that include Faegre's trademarks. See Exh. 11 to Fifth Scoville Decl.; Fifth Scoville Decl. ¶¶ 23-26. Purdy's web pages do not appear as prominent responses to queries in other search engines, such as Google. Altman Aff. ¶ 2. Because Purdy uses the description tags from faegre.com, on some search engines that display the description tags, the description of Purdy's web page includes portions of the description of *1243 Faegre's website. See Exh. 10 to Fifth Scoville Decl.
E. John Hinderaker
Plaintiff John Hinderaker publishes a popular internet blog or web log entitled "Power Line," located at powerlineblog.com, under the pseudonym "Hindrocket." Hinderaker Decl. ¶ 5. On September 13, 2004, a statement appeared on the discussion board on pleasedontkill yourbaby.com/Discussion that purported to be by Hinderaker. Exh. 107 to Seventh Beutz Decl. Hinderaker did not create or authorize use of the posting attributed to his name. Hinderaker Decl. ¶ 3.
On November 6, 2004, Purdy registered the domain name "hindrocket.com" and directed that domain name to a web page proclaiming to be the "Official John Hinderaker Site." Exhs. 108-09 to Seventh Beutz Decl.; Exh. 122 to Eighth Beutz Decl. The web page contains criticism of Hinderaker related to his alleged stance on abortion.
III. DISCUSSION
A. Motion for Recusal
On March 4, 2005, Purdy filed his third Motion for Recusal of Judge Michael J. Davis. [Docket No. 111] He argues that this Court should recuse itself because language within the Court's March 18, 2004, Order [Docket No. 50] demonstrates a bias against Purdy, and because the web sites at issue in this current contempt motion are highly critical of this Court, including the language within one of the domain names. The Court rejected these same arguments in its April 26, 2004 Order denying Purdy's second motion for recusal. [Docket No. 71] The Court reasoned that the language in the March 18 Order did not indicate that the Court was biased against Purdy. It also concluded that it would not disqualify itself based on any criticism posted by Purdy after the commencement of the current litigation. As orally ordered on March 7, 2005, and based on the reasoning of the Court's April 26 Order, Purdy's third motion for recusal is denied.
B. Contempt Standard
In a civil contempt proceeding, the moving party must prove, by clear and convincing evidence, that the person allegedly in contempt violated the court's order. Chicago Truck Drivers v. Bhd. Labor Leasing, 207 F.3d 500, 505 (8th Cir.2000). However, the moving party does not need to show that the violation of the court's order was willful. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S. Ct. 497, 93 L. Ed. 599 (1949); Ford Motor Co. v. B & H Supply, Inc., 646 F. Supp. 975, 1002 (D.Minn.1986), opinion supplemented by No. Civ. 3-85-865, 1987 WL 59519 (D.Minn. April 13, 1987).
Once the moving party has met its burden, the burden shifts to the nonmoving party to show inability to comply. Chicago Truck Drivers, 207 F.3d at 505. To demonstrate inability to comply, the nonmoving party must establish "(1) that they were unable to comply, explaining why categorically and in detail, (2) that their inability to comply was not self-induced, and (3) that they made in good faith all reasonable efforts to comply." United States v. Santee Sioux Tribe of Neb., 254 F.3d 728, 736 (8th Cir.2001) (citation omitted).
"Civil contempt may be employed either to coerce the defendant into compliance with a court order or to compensate the complainant for losses sustained, or both." Chicago Truck Drivers, 207 F.3d at 505. The Court may levy a fine against the party in contempt, which is payable to the moving party or to the Court, or may order imprisonment. Id. The Court may also award attorney's fees *1244 and other costs incurred in prosecuting the contempt motion to the moving party. See Kehm v. Procter & Gamble Mfg. Co., 724 F.2d 630, 630-31 (8th Cir.1984) (per curium) (affirming award of $10,000 in attorney's fees for litigating contempt motion).
C. Trade Dress Infringement
Plaintiffs argue that Purdy's Counterfeit Faegre Pages 1, 2, and 3 are confusingly similar to Faegre's web site at faegre.com, in violation of Paragraph 6 of the January 5 Order, because they infringe on Faegre's trade dress. Paragraph 6 enjoins Purdy from "displaying any web site, the appearance of which is identical or confusingly similar to the trade dress of Faegre's web site at faegre.com."
Plaintiffs note that the counterfeit web pages feature the same color scheme, layout, buttons, fonts, and graphics as faegre.com. They argue that the overall impression created by Purdy's web pages is dominated by the substantial incorporation of Faegre's home page. Purdy responds that his web pages are parodies and that they prominently display parody disclaimers. He asserts that the large pictures purporting to show dismembered fetuses are not the type of picture that would appear on Faegre's official web site and, thus, are unlikely to confuse the internet user.
Trade dress is entitled to protection under the Lanham Act if: "(1) it is inherently distinctive or has acquired distinctiveness through secondary meaning; (2) it is primarily nonfunctional; and (3) its imitation would result in a likelihood of confusion in consumers' minds as to the source of the product." Insty*Bit, Inc. v. Poly-Tech Indus., Inc., 95 F.3d 663, 667 (8th Cir.1996). "Trade dress is the total image of a product, the overall impression created, not the individual features." Gateway, Inc. v. Companion Prods., Inc., 384 F.3d 503, 507 (8th Cir.2004).
A parody does not receive absolute protection from trademark law; however, "a parody contained in an obvious editorial context is less likely to confuse, and thus [is] more deserving of protection than [trade dress and trademarks] displayed on a product." Anheuser-Busch, Inc. v. Balducci Publ'ns, 28 F.3d 769, 776 (8th Cir.1994). Although the Lanham Act does not require that a parody carry a disclaimer, the fact that the parody carries a label stating "satire" or "parody" "should alert most consumers" that the item is a parody. Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ'g Group, Inc., 886 F.2d 490, 496 (2d Cir.1989). See also Anheuser-Busch, Inc., 28 F.3d at 776-77 (holding that ad parody violated Lanham Act, but that "by using an obvious disclaimer" defendant could have substantially lessened risk of consumer confusion).
When determining the likelihood of confusion, the Court considers "(1) the strength of the owner's mark; (2) the similarity between the owner's mark and the alleged infringer's mark; (3) the degree to which the products compete with each other; (4) the alleged infringer's intent to `pass off' its goods as those of the owner; (5) incidents of actual confusion; and (6) the type of product, its costs, and conditions of purchase." Insty*Bit, Inc. v. Poly-Tech Indus., Inc., 95 F.3d 663, 667 (8th Cir.1996). The parties do not dispute the strength of Faegre's mark, and the "the type of product, its costs, and conditions of purchase" factor is not applicable in this case. Purdy's web sites do not offer legal services in competition with Faegre, and Plaintiffs have not offered admissible, clear evidence of actual confusion. Although Purdy has used domain names that are confusingly similar to Faegre's marks, thus indicating an intent to mislead internet users, the web sites at issue in this trade dress claim do not possess *1245 domain names that are confusingly similar to Faegre's marks. Additionally, Purdy's inclusion of a parody disclaimer weighs against a finding that he intends to pass off his web pages as affiliated with Faegre.
The most substantial factor in this case is the extent of the similarity between Faegre's trade dress and the appearance of Purdy's web pages. Although the web sites at issue do contain exact copies of portions of Faegre's trade dress, their overall dissimilarity from Faegre's page creates a low likelihood of confusion. Purdy's web pages are dominated by graphic photographs purporting to show aborted fetuses, which are not similar to or related to any content or design on Faegre's official web page, or to the content or design that a consumer would be likely to expect to find on a law firm web site. Much of the text of Purdy's web pages consists of clear criticism of Faegre's alleged position on abortion and on its actions in this litigation. This critical text is not similar to the text found on Faegre's web page or to the type of text a consumer would be likely to think was sponsored by Faegre. Finally, each web page contains a clear parody disclaimer stating "Critical Faegre Website Parody" or "Official Faegre Parody Website." These disclaimers, combined with the prominent photographs that are jarringly unlike anything that a consumer would expect on an official law firm web page, should alert the consumer that the web pages are parodies; thus, they are less likely to confuse consumers as to the sponsorship, affiliation, or source of Purdy's web pages. "The ultimate inquiry always is whether, considering all the circumstances, a likelihood exists that consumers will be confused about the source of the allegedly infringing product." Hubbard Feeds, Inc. v. Animal Feed Supplement, Inc., 182 F.3d 598, 602 (8th Cir.1999).
Because Purdy's web sites are not likely to cause confusion among consumers, the Court determines that his use of Faegre's trade dress does not constitute trade dress infringement and is not in violation of the Court's Order.
D. Cybersquatting
Plaintiffs assert that Purdy violated Paragraph 2 of the January 5 Order by controlling and posting web pages at the following four domain names: faegre-benson-tencommandments.com, faegre-benson-vote forpresidentbush. com, john-faegre-kerry.com, and faegre-law-love-democraticjudge smichaeldavis-judgeannmontgomery.com. The Court specifically ordered Purdy to cease using the first three of these domain names in its September Contempt Order, on the grounds that those three names were confusingly similar to Faegre's protected mark. Plaintiffs assert that the fourth domain name is also confusingly similar to its mark and does not alert internet users to the protest or critical commentary nature of the attached web site within the language of the domain name itself.
Purdy asserts that he has attempted to comply with the Court's Order, but Gandi, the registrar, would not allow him to direct the three explicitly prohibited domain names to an error page. Purdy Decl. ¶ 3. The Court already determined that Purdy has the ability to control the three explicitly prohibited domain names, Sept. 2 Contempt Order at 18 [Docket No. 86], and Purdy has provided no new evidence to convince the Court that he has lost the ability to control the use of those names. Although the three domain names no longer direct the internet user to any content, by continuing to display content on those pages after the Court's explicit instruction that he cease to do so, Purdy was clearly in violation of the Court's January *1246 5 Order and September Contempt Order. Because he ceased to display content at those domain names on January 20, 2005, the Court finds that Purdy was in contempt of the Court's Orders from the date of the first Contempt Order, September 2, 2004, through January 19, 2005, for a total of 139 days.
The Court determines that Purdy is not in contempt for his use of the domain name faegre-law-l ove-democraticjudgesmichaeldavis-judgeannmontgomery.com, which was not specifically prohibited by the Court's prior Orders and is not identical nor confusingly similar to Plaintiffs' marks. This domain name constitutes a statement of Purdy's opinion regarding the relationship between Faegre and Judge Montgomery and Judge Davis rather than a bad faith intent to profit from Faegre's protected mark. 15 U.S.C. § 1125(d). Purdy has the right to use "expressive domain names that are unlikely to cause confusion." Coca-Cola Co. v. Purdy, 382 F.3d 774, 787 (8th Cir.2004). The Court concludes that a reasonable internet user would not think that a law firm would use or approve of a domain name stating its "love" of two federal judges.
E. Metatags
Plaintiffs assert that Purdy's use of Faegre's trademarks in the metatags for his web pages violates Paragraph 5 of the Court's January 5 Order, but request clarification of that Order in order to alleviate any possible ambiguity. See PACCAR Inc. v. TeleScan Techs., L.L.C., 319 F.3d 243, 258 (6th Cir.2003) (holding that district court must separately analyze whether use of "metatags alone, without the inclusion of those marks in the domain names, creates a likelihood of confusion").
Paragraph 5 enjoined Purdy "from using any trademark that is identical or confusingly similar to Faegre's distinctive and protected marks FAEGRE & BENSON, FAEGRE, FAEGRE & BENSON LLP, and FAEGRE.COM, or any other mark used or owned by Faegre." In order to show trademark infringement under the Lanham Act, Plaintiffs must show that they have a mark entitled to protection and that Purdy's use of the mark is likely to confuse consumers as to the source of Purdy's product or services. 15 U.S.C. § 1125(a); Everest Capital Ltd. v. Everest Funds Mgmt., L.L.C., 393 F.3d 755, 759 (8th Cir.2005).
Plaintiffs assert that use of a competitor's trademark in a web page's metatags with the purpose of diverting internet users from their intended web site destination constitutes trademark infringement under the Lanham Act. See Brookfield Communications, Inc. v. West Coast Entm't Corp., 174 F.3d 1036, 1062-66 (9th Cir.1999). They claim that search engines are likely to list Purdy's web pages when an internet user does a search using Faegre's trademarks. Thus, Plaintiffs assert, Purdy misdirects search engines to his web pages, causing his pages to be prominently listed among the search results. According to Plaintiffs, although the user may eventually discover that the web pages do not belong to Faegre, by that time, Purdy will have diverted internet traffic to his web pages. Additionally, because Purdy uses Faegre's meta-description tags, some search engines may list a summary description of his web sites that appears nearly identical to the summary of Faegre's actual web site.
Purdy responds that his use of Faegre's trademarks is a fair use of those marks in order to identify the content of his website, which does criticize Faegre. A defendant's use of a trademark in metatags in a descriptive manner can constitute a non-infringing fair use. Brookfield Communications, Inc., 174 F.3d at 1066; see also 15 *1247 U.S.C. § 1115(b)(4) (codifying fair use defense, when "the use of the name ... is a use, otherwise than as a mark... of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party").
Purdy cannot be entirely barred from using Faegre's trademarks in his metatags. Purdy's web sites do contain content related to his criticism of Faegre. Thus, he may legitimately use Faegre's trademarks in his metatags in order to refer to Faegre and to describe the content of his website. Brookfield Communications, Inc., 174 F.3d at 1066; Bihari v. Gross, 119 F. Supp. 2d 309, 322-23 (S.D.N.Y.2000). If the Court enjoined Purdy from using the term "Faegre & Benson" in his metatags, to the extent that search engines do use metatags to catalog web sites, the Court would bar Purdy from communicating his criticism of Faegre on the internet. Bihari, 119 F.Supp.2d at 323; Bally Total Fitness Holding Corp. v. Faber, 29 F. Supp. 2d 1161, 1165 (C.D.Cal.1998). Even if Purdy is criticizing Faegre in a distasteful manner, he has the right to catalog his website. Bihari, 119 F.Supp.2d at 323-24.
Based on the fair use defense under the Lanham Act, Purdy can legally use Faegre's marks in his metatags in the descriptive sense, particularly if he employs a disclaimer on his web pages; however, he is not permitted to use Faegre's marks in his metatags in order to divert internet users from Faegre's web site. Purdy's wholesale copying of some of Faegre's description tags indicates an intent to mislead the internet user rather than merely to categorize critical web pages.
Because the Court's Preliminary Injunction did not specifically address metatag use, the Court will not find Purdy in contempt based on these actions. Instead, the Court now clarifies its Preliminary Injunction to enjoin Purdy from future metatag use in violation of the Lanham Act. Purdy is not completely barred from use of Faegre's trademarks in the metatags of his web site. Instead, Purdy may only use Faegre's trademarks in the metatags for his web sites to the extent that he is, in good faith, describing the content of his website. Examples of the types of actions that would be indicative of bad faith include wholesale copying of Faegre's meta-description tags or HTML code, use of Faegre's marks in metatags attached to a site with a confusingly similar domain name, and use of Faegre's marks beyond what is necessary to accurately describe the contents of Purdy's web site.
F. Appropriation
Plaintiffs next contend that Purdy has violated Paragraph 11 of the January 5 Order, which requires him "to cease illegal appropriation of the names of Plaintiffs and all individuals associated or affiliated with the Plaintiffs," by posting statements falsely attributed to Hinderaker and by publishing the "Official John Hinderaker Site" under the domain name hindrocket.com.
"Appropriation protects an individual's identity and is committed when one `appropriates to his own use or benefit the name or likeness of another.'" Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 233 (Minn.1998) (footnote omitted). "To tortiously appropriate an individual's name, one must appropriate for the purpose of taking advantage of that individual's name, or reputation." Kovatovich v. K-Mart Corp., 88 F. Supp. 2d 975, 986-87 (D.Minn.1999).
The Minnesota Supreme Court cited the Restatement (Second) of Torts § 652C when recognizing the tort of appropriation. The Restatement notes that appropriation *1248 applies "when the defendant makes use of the plaintiff's name or likeness for his own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained in not a pecuniary one." Restatement (Second) of Torts § 652C, cmt. b. See also Felsher v. Univ. of Evansville, 755 N.E.2d 589, 600 (Ind.2001) (finding appropriation when defendant used plaintiffs' names in e-mail addresses and web sites and holding that defendant misappropriated plaintiffs' names to his "advantage in that [the misappropriation] enabled him to pursue a personal vendetta"). The Court has previously found Purdy in contempt for using the domain name feliciaboyd.info.
In this case, Purdy has published a web page at the domain name hindrocket.com, which bears the title "Official John Hinderaker Site." According to the evidence before the Court, Hinderaker is well-known by his blog pseudonym, Hindrocket, and an associated rocket graphic. An internet user might search for the pseudonym in a search engine or type hindrocket.com in a web browser, and end up at Purdy's web page, entitled "Official John Hinderaker Site," which features Hinderaker's photograph, the rocket graphic, and the inclusion of an altered biography of Hinderaker, all of which contribute to the impression that Hinderaker sponsored or is affiliated with the page. Purdy's actions are a deliberate attempt to take advantage of Hinderaker's goodwill, reputation, and prestige in order to divert traffic to Purdy's web page and to generate publicity.
Purdy argues that "hindrocket" is not a mark owned or used by Faegre and that he cannot be liable for appropriating a pseudonym. As long as a pseudonym clearly identifies the plaintiff, it is protected from appropriation. See, e.g., McFarland v. Miller, 14 F.3d 912, 922 (3d Cir.1994) (holding New Jersey law prohibits appropriation of a celebrity's nickname); Ackerman v. Ferry, No. B143751, 2002 WL 31506931, at *18-19 (Cal.Ct.App. Nov. 12, 2002) (unpublished) (holding that California's appropriation statute covered appropriation of pseudonyms because "[n]icknames and pen names are names"); Hirsch v. S.C. Johnson & Son, Inc., 90 Wis. 2d 379, 280 N.W.2d 129, 137 (1979) (holding that plaintiff stated a prima facie case for common law appropriation of his well known nickname, Crazylegs, because "[a]ll that is required is that the name clearly identify the wronged person"). The evidence before the Court supports a finding that the public associates Hinderaker with his pseudonym, Hindrocket.
Purdy also argues that the web page currently associated with "hindrocket.com" features prominent disclaimers such as "Official site to criticize Attorney John Hinderaker," "Parody Website," and "Critical Website." Altman Aff. ¶ 3; Exh. 122 to Eighth Beutz Decl. (showing the web page as of November 2004, without disclaimers, and February 2005, with the disclaimers). Although Purdy's disclaimers may alleviate confusion once an internet user has reached the content of the web site, by employing "hindrocket.com" as his domain name, Purdy appropriated Hinderaker's name for his own purposes and benefit to mislead internet users into visiting Purdy's web site when they are actually seeking Hinderaker's web site. Even if an internet user eventually realizes that Purdy's site is not sponsored by Hinderaker, Purdy will have already gained the benefit of luring the user to his web site by exploiting Hinderaker's name. Thus, the Court concludes that Purdy is in contempt of the Court's Orders because he has misappropriated Hinderaker's name.
Plaintiffs also assert that Purdy is in contempt because statements falsely attributed to Hinderaker appeared on a discussion *1249 board on a web site controlled by Purdy. These statements created the impression that Hinderaker supports Purdy's actions. Purdy asserts that he does not know who posts messages on his message boards and that Plaintiffs cannot prove who posted the Hinderaker comment.
The Court concludes that Plaintiffs have not shown, by clear and convincing evidence, that Purdy posted the Hinderaker statements on his bulletin board. Under the Communications Decency Act, "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1). The statute further provides, "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." § 230(e)(3). An "interactive computer service" is defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." § 230(f)(2).
Defendants, like Purdy, who run web sites on which internet users can post comments, are providers of interactive computer services. See, e.g., Donato v. Moldow, 374 N.J.Super. 475, 865 A.2d 711, 713 (2005) (holding that, under the Communications Decency Act, "operator of an electronic community bulletin board website" was immune from liability for "allegedly actionable messages posted anonymously by others"); Schneider v. Amazon.com, Inc., 108 Wash.App. 454, 31 P.3d 37, 41 (2001) (holding that Amazon.com was immune from liability for negative comments posted on its web site because, as an interactive web site operator, it was a provider of interactive computer services and, although it could edit postings, it was not an information content provider). Thus, Purdy is immune from defamation or appropriation claims based on content posted by someone else on the bulletin board that he merely hosts. Because Plaintiffs have not shown that Purdy himself posted the Hinderaker statements that appeared on his bulletin board, the Court will not hold Purdy in contempt for merely hosting the bulletin board on which the offending statements appeared.
G. Sanctions
Plaintiffs have met their burden of showing clear and convincing evidence that Purdy has violated the Court's Orders by controlling and posting web pages at the following three domain names: faegre-benson-tencommandments.com, faegre-benson-vote forpresidentbush.com, and john-faegre-kerry.com, from September 2, 2004, through January 19, 2005. Plaintiffs have also shown, by clear and convincing evidence, that Purdy violated the Court's Orders by appropriating Hinderaker's name through his registration and use of the domain name hindrocket.com.
The Court also concludes that Purdy has not demonstrated his inability to comply with the Court's Orders. The domain names at issue are registered to Purdy or to an entity that he controls. Additionally, he has continued to make alterations to his existing web pages after the Court found him in contempt on September 2, 2004.
As set forth in the Court's September 2, 2004, Order, based on his use of the prohibited domain names faegre-benson-tencommandments.com, faegre-benson-vote forpresidentbush.com, and john-faegre-kerry.com, Purdy is liable for sanctions of $500 per day from the date of the September 2, 2004, Contempt Order until the date that he ceased to be in violation of that Order and the January 5 Order, January *1250 19, 2005. Thus, Purdy is liable to Plaintiffs for a fine of $500 per day for 139 days of contempt, for a total of $69,500.
The Court has also found that Purdy is in contempt for his use of the domain name hindrocket.com. For each day after the date of this Order that Purdy continues to violate the Court's Orders through his use of this domain name, Purdy will be liable for a fine of $500 per day, payable to Plaintiffs. In order to ensure Purdy's compliance with this Order, Purdy is required to pay any sanctions incurred in the future to Plaintiffs, through their counsel, on the last day of each month as each sum accrues, until his contempt is purged. Additionally, the Court will award Plaintiffs their reasonable costs and attorney fees spent in bringing this motion.
Based on the record in this matter and on this Memorandum of Law and Order, which constitutes the Court's findings of fact and conclusions of law, IT IS HEREBY ORDERED:
1. Defendant's Third Motion for Recusal of Judge Michael J. Davis [Docket No. 111] is DENIED.
2. Plaintiffs have proven, by clear and convincing evidence, that Defendant William S. Purdy, Sr., violated the Court's January 5, 2004, Order and its September 2, 2004, Order, as detailed in this Memorandum of Law and Order. Thus, Purdy is adjudged in civil contempt of this Court's January 5, 2004, Order and its September 2, 2004, Order, as set forth in this Memorandum of Law and Order.
3. Plaintiff's Motion for Order to Show Cause and for Clarification of Injunction [Docket No. 91] is GRANTED IN PART and DENIED IN PART as set forth in this Memorandum of Law and Order.
4. Purdy shall pay the accrued contempt fine of sixty-nine thousand five hundred dollars ($69,500), plus thirty-seven thousand one hundred thirty-nine dollars and twenty cents ($37,139.20) in attorney's fees awarded to Plaintiffs in the September Contempt Order, within ten days of the date of this Order.
5. Purdy will continue to be liable for contempt fines of five hundred dollars ($500) per day until he is in full compliance with the terms of the January 5 Order, the September Contempt Order, and this Order.
6. Purdy shall pay to the Plaintiffs, through their counsel, their attorney's fees, costs, and expenses related to the bringing of this contempt motion. Plaintiffs shall submit an itemization of their attorney's fees within fourteen (14) days of the date on which Defendant Purdy pays the $37,139.20 in attorney's fees that were awarded to Plaintiffs in the September Contempt Order. Defendant Purdy will thereafter have seven (7) days to respond to Plaintiffs' fee request.
7. Any such additional sum accrued as a sanction for Purdy's contempt, and any sum accrued as additional attorney's fees awarded to Plaintiffs, pursuant to this Order or any future Order of this Court, will be payable to Plaintiffs, through their Counsel, on the last day of each month as each sum accrues.
8. Purdy shall immediately cease use of the domain name hindrocket.com and shall immediately transfer ownership of this name to Plaintiff Hinderaker.
9. Purdy shall provide a written report to this Court and counsel for the Plaintiffs setting forth in detail his compliance with this Order within ten (10) days from the date of this Order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2439382/ | 965 N.E.2d 1174 (2012)
358 Ill. Dec. 695
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Jim OSHANA, Defendant-Appellant.
No. 2-10-1144.
Appellate Court of Illinois, Second District.
February 9, 2012.
*1179 Joseph Younes, Law Offices of Joseph Younes, Chicago, for Jim Oshana.
Joseph H. McMahon, Kane County State's Attorney, St. Charles (Lawrence M. Bauer, Deputy Director, Scott Jacobson, State's Attorneys Appellate Prosecutor, of counsel), for the People.
OPINION
Justice SCHOSTOK delivered the judgment of the court, with opinion.
¶ 1 On August 5, 2010, the trial court found the defendant, Jim Oshana, guilty of two counts of workers' compensation fraud (820 ILCS 305/25.5(a) (West 2006)). He was sentenced to 24 months' probation, fined, and ordered to pay restitution in the amount of $22,594.61 to Gallagher Bassett, the administrator of workers' compensation benefits for the defendant's employer, to reimburse it for the costs of investigating the defendant's workers' compensation claim and its attorney fees. The defendant appeals, arguing that the statute is unconstitutionally vague, that there was insufficient evidence to convict him, and that Gallagher Bassett is not entitled to restitution for certain expenses. We affirm as modified in part and reverse in part.
¶ 2 BACKGROUND
¶ 3 The defendant began working for Plote Construction, Inc., in February 2006. On October 12, 2006, the defendant missed his footing as he was climbing out the back of a truck trailer he had been washing out and he fell to the ground, injuring his right arm and shoulder. He reported the injury to Plote's safety director, left work, and went to the emergency room at Alexian Brothers Medical Center. Staff there took X-rays of his shoulder. He was told not to go back to work and advised to see a specialist at Sherman Clinic. Plote's safety *1180 director contacted Gallagher Bassett that same day to report the defendant's injury.
¶ 4 On October 16, 2006, the defendant visited Sherman Clinic, where he was given medication, restrictions on his physical activities, and an order to stay off work. Around this time, Pamela Hathaway, a senior claims representative for Gallagher Bassett, contacted a private investigation company named Infomax to perform surveillance on the defendant.
¶ 5 The defendant saw an orthopedic surgeon, Dr. Sarmed Elias, on October 19, 2006. The defendant reported that his level of pain from his shoulder was 9 on a scale from 1 (the least pain) to 10. Dr. Elias had an MRI taken of the defendant's shoulder and told him to remain off work for two weeks.
¶ 6 On October 25, 2006, Infomax employee Wayne Otto conducted surveillance of the defendant's home, beginning at about 6 a.m. At about 3 p.m., Otto observed (and videotaped) the defendant returning home. The defendant carried groceries from the car to the house using his right hand and also pulled garbage cans out to the curb. On October 31, 2006, Otto again conducted surveillance on the defendant and followed him as he drove from his home to a construction site at Benito Juarez High School in Chicago. Once there, the defendant put on a hard hat and appeared to be involved in overseeing various contractors, doing tasks such as carrying blueprints and multiple cups of coffee without any signs of disability. The defendant worked an entire day there.
¶ 7 On November 2, 2006, Otto again followed the defendant to the high school, where the defendant again wore a hard hat. Otto described the defendant's movements as "uninhibited." Otto lost sight of the defendant about noon. The defendant saw Dr. Elias that same day. The defendant filled out an Oswestry (intake) form on which he reported that his level of pain was between a 9 and a 10. Dr. Elias used the Oswestry forms his patients gave him to calculate their levels of disability. On November 2, 2006, Dr. Elias computed that the defendant was 70% disabled because of his neck. (At trial, Dr. Elias explained that there was an overlap between shoulder symptoms and the neck.) Dr. Elias reviewed the defendant's MRI with him, opining that the defendant had suffered a staggered complete tear of the right shoulder rotator cuff tendon. Dr. Elias recommended that the defendant undergo a carpal tunnel release and an epidural injection for herniated disks in his lower back, and he made a note that the defendant's rotator cuff would need repair. Dr. Elias gave the defendant medication and ordered him to stay off work for another two weeks.
¶ 8 The next day, November 3, Hathaway conducted a telephone interview with the defendant covering various topics. Early in the interview, Hathaway asked the defendant whether he had graduated from high school. The defendant replied that he did not graduate and then said, "I do have a diploma high school background, but a different country." Hathaway then asked the defendant to tell her about the October 12 accident and he did so. After that, the following exchange occurred:
"Q. [Hathaway]: And I'm going to go back to your employer. You work for Plote and you work. So you're full-time, correct?
A. [the defendant]: Correct.
Q. Alright [sic]. And you work the night shift. Now do you work for anyone else?
*1181 A. No.
Q. No other employers. Are you an independent contractor for anybody?
A. No ma'am.
Q. And do you own your own business?
A. No ma'am."
¶ 9 On November 8, 2006, the owner of Infomax, Dean Gluth, conducted surveillance on the defendant. Gluth observed that the defendant was carrying a beverage cup in his right hand as he left his house. Gluth followed the defendant as he drove to a different construction site at the 68th Street Pumping Station. Gluth videotaped the defendant using both hands as he used his cell phone, gave directions, took pictures of the site, and carried and rolled and unrolled blueprints throughout the day. The defendant also picked up some temporary fencing and moved it.
¶ 10 The next day, November 9, Otto followed the defendant to the 68th Street work site again. When he arrived, the defendant began tightening the orange plastic fencing around the site, using both arms without any apparent restriction. Otto watched the defendant "pull with force to straighten one of the poles [holding the fencing] back up from the ground." According to Otto's trial testimony, the defendant pulled "in a stretched manner," using both arms equally, rather than using leverage to move the pole. The defendant also performed a number of other tasks throughout the day in which he used both arms. This was the last date when Infomax conducted surveillance on the defendant. Infomax prepared a report on the surveillance dated November 15, 2006, and sent it to Gallagher Bassett. Gluth later compiled all of the videotapes of the defendant onto one tape, which was entered into evidence at trial.
¶ 11 At trial, Wassim Kmeid, the owner of a land development and construction company called Beritus, Inc., testified that during the winter of 2006 he was working on two construction sites, Benito Juarez High School and the 68th Street Pumping Station. Kmeid subcontracted the supervision of the subcontractors at the two sites to Sunset Construction. The defendant was the person with whom Kmeid dealt at Sunset, and the defendant submitted time sheets for his work to Kmeid. The defendant worked a total of 27 days between October 24 and November 30, 2006, for which Kmeid paid Sunset $5,180.
¶ 12 The defendant filed an application for workers' compensation benefits on November 14, 2006. In it, the defendant stated that, as a result of his fall on October 12, he had sustained "[s]evere injuries" to his back, neck, and shoulder. On November 16, the defendant saw Dr. Elias. The defendant reported that his shoulder pain was level nine and his neck pain was level eight. Based on these responses Dr. Elias calculated that the defendant was 98% disabled because of his lower back and 84% disabled because of his neck. Based on his examination of the defendant, Dr. Elias believed that the defendant could not work. The defendant saw Dr. Elias again on November 30, 2006. At that point, the defendant reported that he was "in bed most of the time," that he had to "crawl to the toilet," and that he could walk only with the help of a cane or crutches. Despite this description and Dr. Elias's belief that the defendant needed surgery to repair his rotator cuff tear as soon as possible, Dr. Elias released the defendant to light-duty work on November 30. Plote's safety director, William Ryan, testified that it was Plote's policy to require a "full release," not a light-duty release or a release with restrictions, in order *1182 to allow an injured employee to return to work. Thus, the defendant could not return to work for Plote. Dr. Elias saw the defendant on January 4, 2007, at which time the defendant showed some improvement in his level of pain but still was not cleared to return to work.
¶ 13 On January 5, 2007, the defendant filed a petition under section 19(b) of the Workers' Compensation Act (Act) (820 ILCS 305/19(b) (West 2006)) in which he sought temporary total disability (TTD) benefits for his injury. In a motion accompanying that petition, the defendant stated that he had been "disabled from work from 10/12/06 until [the] present" but had not yet received any benefit payments, and he sought to have penalties imposed on Plote and Gallagher Bassett for unreasonably withholding payment. In February 2007, Gallagher Bassett issued the defendant a check for $7,000 as an advance on TTD. Hathaway testified that, by the time the payment was made, she knew that the defendant had been working somewhere other than Plote. Nevertheless, the decision was made to go ahead and make the payment, and the defendant's injury was categorized as a compensable injury in Gallagher Bassett's records.
¶ 14 On April 27, 2007, at the request of Gallagher Bassett, the defendant was seen by Dr. David Zoellick, an orthopedic surgeon. The defendant reported that any motion of his right arm caused pain, there was a "burning sensation radiating down his right arm," and he could not raise his right arm. The defendant said that he was driving with only his left hand. The defendant stated that he had not had any neck or back pain before the accident and that he had not been further injured since the accident. Dr. Zoellick examined the defendant and reviewed the medical records from Dr. Elias. Dr. Zoellick diagnosed the defendant as having intrasubstance changes in his rotator cuff and a subchrondal cyst in the lateral aspect of the humeral head. Dr. Zoellick told Gallagher Bassett that the defendant could possibly return to work in six to eight weeks. After his examination of the defendant, however. Dr. Zoellick was given the videotape of the defendant to watch. Viewing the tape changed Dr. Zoellick's opinion of the severity of the defendant's condition, to the point that he believed that the defendant could return to work immediately. At trial. Dr. Zoellick testified that the videotape contradicted the defendant's reports about his condition in several ways, including in his ability to raise his right arm.
¶ 15 In June 2007, Gallagher Bassett issued one other payment of $3,918.21, which it classified as an advance on permanent partial disability of 2½% of one arm. Plote's attorney handling the defense of the defendant's workers' compensation claim in 2008 testified that Gallagher Bassett's investigation was not complete when it issued the checks to the defendant, but Gallagher Bassett paid "under protest" to avoid penalties. Strikingly, so far as can be determined from the record, no hearing was ever held on the defendant's workers' compensation claim related to the October 2006 accident, and that claim remains pending at the present time, over five years later.
¶ 16 In 2008, the defendant had two workers' compensation claims pending with the Illinois Workers' Compensation Commission, the one from 2006 and another from 2007. In November 2008, an investigative division of Gallagher Bassett contacted the antifraud unit of the Commission. Elizabeth Lawrence, an investigator *1183 with the antifraud unit, testified that as a result of that contact she began an investigation into the defendant's 2006 claim. After she reviewed the case, she referred the matter to the Kane County State's Attorney's office for prosecution, because she believed that the following things showed fraud by the defendant: the defendant's claims to his doctors to have certain physical limitations, the videotape showing the defendant performing work that was inconsistent with those claims, and the fact that the defendant was working during a time that he alleged that he was disabled.
¶ 17 On April 22, 2009, the defendant was indicted on two counts of workers' compensation fraud: one under section 25.5(a)(1) of the Act, and the other under section 25.5(a)(2). Those provisions read as follows:
"(a) It is unlawful for any person, company, corporation, insurance carrier, healthcare provider, or other entity to:
(1) Intentionally present or cause to be presented any false or fraudulent claim for the payment of any workers' compensation benefit.
(2) Intentionally make or cause to be made any false or fraudulent material statement or material representation for the purpose of obtaining or denying any workers' compensation benefit." 820 ILCS 305/25.5(a)(1), (a)(2) (West 2006).
On March 2, 2010, the first day of the bench trial, the State was allowed to amend its indictment to allege the factual basis for each charge. As to count I, alleging a violation of subsection (a)(1), the State alleged that the defendant "intentionally presented a false material representation for the payment of workers' compensation benefit, in that said defendant claimed to the Illinois Workers['] Compensation Commission, his employer's worker[s'] compensation insurance provider, and to a worker[s'] compensation insurance claims adjuster that he was totally disabled and unable to work" due to an accident that occurred while he was employed by Plote. As to count II, charging a violation of subsection (a)(2), the amended indictment alleged that the defendant "intentionally presented a false material statement for the purpose of obtaining worker[s'] compensation benefits," in that he claimed to the Commission and Plote's insurance provider that "he was totally disabled and unable to work" and also told a Gallagher Bassett insurance claims adjuster that he was not working for anyone else. The State presented its case-in-chief, including the witnesses and evidence described above, over two days. The case was then continued until April 2010, when the State rested and the defendant filed a motion for a directed finding. The State filed a written response, and the trial court denied the motion. The parties returned to court on August 5, 2010, when they made their closing arguments and the trial court found the defendant guilty of both counts. The defendant filed a motion for a new trial, which the trial court denied.
¶ 18 On October 20, 2010, the defendant was sentenced. The trial court merged the convictions on the two counts under the one-act, one-crime doctrine. The defendant was sentenced to 24 months' probation and ordered to pay, in addition to various fines and fees due to the State, restitution in the amount of $22,594.61 to Gallagher Bassett pursuant to section 25.5(b) of the Act. That provision reads:
"(b) * * * Any person or entity convicted of any violation of this Section *1184 shall be ordered to pay complete restitution to any person or entity so defrauded in addition to any fine or sentence imposed as a result of the conviction." 820 ILCS 305/25.5(b) (West 2006).
The amount of restitution included: $5,923.50 in attorney fees relating to the criminal case; $5,105 for Dr. Zoellick's independent medical examination of the defendant; $9,671.05 in surveillance costs; about $1,418 in other investigation costs; and about $477 in costs for medical records. Gallagher Bassett did not ask that the defendant repay any of the amounts it tendered directly to him or his doctors for his October 2006 injury or for attorney fees associated with the underlying workers' compensation claim. The defendant filed a timely appeal.
¶ 19 ANALYSIS
¶ 20 On appeal, the defendant raises several arguments: (1) sections 25.5(a)(1) and (a)(2) of the Act are void because they are unconstitutionally vague; (2) even if the statute is not so vague that it is unconstitutional, it is ambiguous and therefore the rule of lenity should be applied; (3) the evidence was insufficient to support the defendant's convictions because the State failed to prove beyond a reasonable doubt that he had the requisite intent, that he presented a false or fraudulent claim, or that he made a false or fraudulent material representation; (4) the trial court's factual findings were in error; and (5) the restitution that he was ordered to pay to Gallagher Bassett included costs that were not proper "out-of-pocket expenses" under section 5-5-6 of the Unified Code of Corrections (730 ILCS 5/5-5-6 (West 2008)). We address all of these arguments herein. However, as we may not consider the constitutionality of a statute if the case can be decided on some other ground (People v. Carpenter, 228 Ill. 2d 250, 264, 320 Ill. Dec. 888, 888 N.E.2d 105 (2008)), we postpone our examination of the first argument (and the second, which is related to it). We begin instead with the sufficiency of the evidence and the alleged errors in the trial court's factual findings.
¶ 21 The Sufficiency of the Evidence
¶ 22 In a criminal trial, the State bears the burden of proving beyond a reasonable doubt all the material and essential facts constituting the crime. People v. Weinstein, 35 Ill. 2d 467, 470, 220 N.E.2d 432 (1966). However, once the trier of fact has found the defendant guilty of a crime, we must give deference to that determination in light of the fact finder's superior opportunity to see and hear the witnesses firsthand. Thus, on review, the relevant question is not whether the State met its burden but whether, after viewing 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. People v. Collins, 106 Ill. 2d 237, 261, 87 Ill. Dec. 910, 478 N.E.2d 267 (1985); People v. Mills, 356 Ill.App.3d 438, 444, 292 Ill. Dec. 216, 825 N.E.2d 1227 (2005). The determination of the weight to be given to the witnesses' testimony, their credibility, and the reasonable inferences to be drawn from the evidence are the responsibility of the trier of fact. People v. Steidl, 142 Ill. 2d 204, 226, 154 Ill. Dec. 616, 568 N.E.2d 837 (1991); Collins, 106 Ill.2d at 261, 87 Ill. Dec. 910, 478 N.E.2d 267. This standard applies whether the evidence is direct or circumstantial and whether the verdict is the result of a jury trial or a bench trial. People v. Cooper, 194 Ill. 2d 419, 431, 252 Ill. Dec. 458, 743 N.E.2d 32 (2000). We will *1185 set aside a criminal conviction only "where the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant's guilt." People v. Smith, 185 Ill. 2d 532, 542, 236 Ill. Dec. 779, 708 N.E.2d 365 (1999).
¶ 23 Count I of the indictment charged the defendant with intentionally making a false claim for workers' compensation benefits. The trial court did not make any factual findings regarding the evidence supporting this count. Rather, the trial court apparently confused the "false or fraudulent material statement or * * * representation" that was the basis for the charge in count II with the false or fraudulent claim charged in count I, stating:
"as to Count I, a false representation. [The defendant] made a false representation to his treating physicians as to his disability and his pain."
The trial court then went on to list other statements that it considered to be false or fraudulent. However, it never addressed the basis for its finding the defendant guilty of making a false or fraudulent claim.
¶ 24 The defendant argues that he did not make a false claim, because it was undisputed that he sustained a tear in his right rotator cuff as a result of the accident. Indeed, he notes, Gallagher Bassett itself categorized his condition as a "compensable injury." Thus, he argues, his claim was valid and well-grounded, not false or fraudulent. The State argues that the defendant was not disabled from working, and thus both his initial application for benefits and his later section 19(b) petition were false.
¶ 25 An examination of the claim forms submitted by the defendant shows that neither required him to affirmatively state whether he was totally disabled from working. Rather, the initial application required only basic information about the time and place of the accident and a brief description of how it occurred and the resulting injuries. The State has not shown that any of the information the defendant provided on this form was false. To the contrary, the MRI evidence showed that the defendant's fall resulted in a genuine injury, namely, a torn rotator cuff. Because the term "claim" is not defined in the statute, it is debatable whether that term also encompasses the defendant's section 19(b) petition. We need not decide this issue, however, as even if the petition were included as part of the defendant's "claim for the payment of any workers' compensation benefits" (820 ILCS 305/25.5(a)(1) (West 2006)), the State has not shown that any of the statements made on that petition form were false or fraudulent. We acknowledge that the form requires the claimant to aver that "I am unable to return to work at this time because of the injuries or disability caused by my employment, and I am not receiving Temporary Total Disability benefits or medical benefits." However, although the videotape showed the defendant carrying coffee and working with blueprints, and even straightening a fence support at one point, it is undisputed that at the time of his section 19(b) petition the defendant had been released to perform light-duty work only, and thus he could not return to work at Plote, which required an unrestricted release before an injured employee could return to work. Nothing in either the initial application for benefits or the section 19(b) petition required the defendant to state whether he was totally disabled from working, and thus his failure to disclose his temporary light-duty work did not render *1186 his workers' compensation claim either false or fraudulent.
¶ 26 We reach the same conclusion when we step back from the specific statements the defendant made in asserting his claim for workers' compensation benefits and look at the overall effect of his conduct. A claimant who is disabled from performing his regular job does not lose his eligibility for workers' compensation benefits merely by performing temporary light-duty work. Choi v. Industrial Comm'n, 182 Ill. 2d 387, 393-94, 231 Ill. Dec. 89, 695 N.E.2d 862 (1998); Freeman United Coal Mining Co. v. Industrial Comm'n, 318 Ill.App.3d 170, 179, 251 Ill. Dec. 966, 741 N.E.2d 1144 (2000). The State argues, in essence, that the defendant was obligated to immediately disclose to the Commission his light-duty work for Beritus. However, section 25.5 makes criminal only affirmative frauda false or fraudulent claim or statementnot mere silence. Cf. Benson v. Stafford, 407 Ill. App. 3d 902, 927-28, 346 Ill. Dec. 828, 941 N.E.2d 386 (2010) (rejecting the argument that silence was sufficient to show fraud where language of contract prohibited only affirmative fraud). Even if section 25.5 could be read to encompass culpability for fraudulent concealment, the State has put forward no argument showing that the circumstances here were such that the defendant had a duty to speak. Paul H. Schwendener, Inc. v. Larrabee Commons Partners, 338 Ill.App.3d 19, 31, 272 Ill. Dec. 377, 787 N.E.2d 192 (2003). Although the defendant would have had a duty to disclose his light-duty work at the hearing on his workers' compensation claim (so that his earnings from that work could be taken into account in determining the amount of benefits he was entitled to receive), that hearing has never been held. If the defendant's underlying workers' compensation claim had gone to hearing and the evidence had shown either that the defendant did not have a compensable claim or that some other aspect of his claim was fraudulent, we would have no difficulty in concluding that the State had proven that the defendant violated subsection (a) of section 25.5 relating to false or fraudulent claims. On the current record, however, there is insufficient evidence of such a violation. We therefore conclude that the defendant's conviction on count I must be reversed.
¶ 27 Indeed, the fact that no hearing was ever held on the underlying workers' compensation claim here causes us considerable concern. Section 25.5 is located within the Workers' Compensation Act, not the Criminal Code. The purpose of the Act is to provide workers with prompt compensation for income lost due to work-related injuries. Cassens Transport Co. v. Illinois Industrial Comm'n, 218 Ill. 2d 519, 530, 300 Ill. Dec. 416, 844 N.E.2d 414 (2006). Here, however, the parties have indicated that the workers' compensation claim remains unresolved over five years after it was filed. Although the documentary and video evidence presented at the defendant's criminal trial could certainly have been considered by the arbitrators and members of the Commission in making the initial decision as to the proper amount of benefits to which the defendant was entitled, Gallagher Bassett chose instead to report (and seek the prosecution of) the fraud it alleges here. This choice has derailed the normal prompt resolution of the workers' compensation case and raises the unseemly possibility that Gallagher Bassett in essence sought to make an end run around the Commission by obtaining a finding of fraud in a circuit court rather than allowing the Commission to make the first determination of the validity of the *1187 claim as required by the statutory scheme. Although it is not mandated by the statutory language, we urge both the antifraud unit of the Commission and the State's Attorney's office to consider the wisdom of deferring prosecution under section 25.5 of the Act until after the workers' compensation case has been heard or otherwise concluded, thereby avoiding the type of delay that has occurred here.
¶ 28 We turn to the sufficiency of the evidence supporting the conviction on count II. To secure a conviction on count II, which charged a violation of section 25.5(a)(2) of the Act, the State was required to prove that the defendant intentionally made a false or fraudulent material statement for the purpose of obtaining workers' compensation benefits. The trial court found that the defendant made several false or fraudulent statements. First, the trial court found that the defendant falsely told Hathaway that he was not working for anyone other than Plote and was not an independent contractor. Second, the trial court found that the defendant fraudulently misrepresented to Drs. Elias and Zoellick the level of his pain and inability to use his right hand and arm. We examine the evidence supporting each of these findings.
¶ 29 Considering the defendant's statements to Hathaway, we find that Hathaway's questions about whether the defendant was working for anyone else or acting as an independent contractor were ambiguousthat is, capable of being understood in different waysbecause it was not clear what time frame she was referring to in her questions. The State argues that Hathaway's questions were clearly directed to the time of the interview, and thus she was asking the defendant whether, on November 3, 2006, he was working for anyone other than Plote or acting as an independent contractor. However, the context of Hathaway's questions and her phrasing raise an equally strong or stronger inference that she was referring to the time of the accident. Immediately before the relevant questions, Hathaway had been asking about the manner in which the accident occurred, and thus her questions were directed toward the October 12, 2006, time frame. She then began asking questions about the defendant's employment, continuing to use the present tense. After stating "You work for Plote," Hathaway asked, "So you're full-time, correct?" These comments must refer to the time of the accident because, at the time of the November 3 interview, the defendant was no longer doing any work for Plote. Hathaway then stated, "you work the night shift," again apparently referring to the time of the accident, before asking, "Now do you work for anyone else?" Her next questions about being an independent contractor and whether the defendant owned a business were also in the present tense.
¶ 30 We find that the continuing use of the present tense when asking both about the terms of the defendant's employment at the time of the accident and also about other employment was confusing and could easily have led the defendant to believe that Hathaway was asking whether he had other employment at the time of the accident. There was no evidence that the defendant in fact had any other employment or was working as an independent contractor at the time of the accident. Thus, if the defendant understood Hathaway to have been asking about that time, there is no evidence that his statements were deliberately false or fraudulent. Moreover, the likelihood of confusion on the defendant's part was increased by the fact that the defendant had only a high *1188 school education, which he obtained in another country. Accordingly, we find that the evidence, even when viewed in the light most favorable to the State, did not establish beyond a reasonable doubt that the defendant intentionally lied to Hathaway when he answered her questions in the negative.
¶ 31 We reach a different conclusion regarding the defendant's statements to his doctors, however. The trial court found that the defendant intentionally misrepresented the extent of his disability and pain to the doctors who examined him. The trial court also noted that the defendant never told either of his doctors that he had been doing light-duty work during the fall of 2006, raising the inference that he was concealing this work in order to increase the level of disability to which his doctors would testify and to avoid being released to return to full-duty work. These findings were amply supported by the record. The evidence showed that the defendant consistently represented to Dr. Elias, his treating physician, that his level of pain was a 9 or 10 (on a range from 1 to 10), leading Dr. Elias to conclude that he was 85% or more disabled. These representations would suggest that the defendant could scarcely move without pain, and indeed the defendant told Dr. Elias on November 30, 2006, that he spent most of his time in bed and had to crawl to the bathroom. Contrary to these representations, however, the defendant had been working light duty at two construction sites for 27 days by that point. Indeed, the defendant worked in the morning on November 2, the same day that he later reported to Dr. Elias that his pain was between a 9 and a 10, with the result that Dr. Elias believed him to be 70% disabled on that day. Similarly, the defendant told Dr. Zoellick in April 2007 that he had a burning sensation radiating down his right arm and could not raise that arm. Although Dr. Zoellick initially credited this report and believed that it would be six to eight weeks before the defendant could return to work, after Dr. Zoellick viewed the videotape he concluded that the defendant's reports of his disability were inconsistent with the video and that the defendant could return to work immediately.
¶ 32 Nor do we find any error in the trial court's conclusion that the defendant's misrepresentations to the doctors were intentional and made for the purpose of obtaining workers' compensation benefits. Although the defendant argues that there was no direct evidence of any intent to mislead his doctors or that he acted as he did in order to get benefits, the trier of fact is permitted to draw reasonable inferences from the evidence (Steidl, 142 Ill.2d at 226, 154 Ill. Dec. 616, 568 N.E.2d 837), and that is what the trial court did here. The defendant makes much of Dr. Elias's testimony that, in his opinion, the defendant was not necessarily lying when he described his pain and incapacity, as back and neck pain are "dynamic" and can change from moment to moment. However, the trial court was not required to defer to Dr. Elias's opinion on the legal issue of whether the defendant's statements amounted to deliberate falsehoods. Rybak v. Provenzale, 181 Ill.App.3d 884, 896, 130 Ill. Dec. 852, 537 N.E.2d 1321 (1989). Moreover, Dr. Zoellick testified that the defendant's statements about his disability were directly contradicted by the defendant's movements in the video. The evidence was sufficient to sustain the trial court's finding of fraudulent intent.
¶ 33 The defendant also argues that the trial court made factual errors *1189 that contributed to an incorrect legal finding that he was guilty on count II. Specifically, the defendant notes that, in summarizing the evidence prior to ruling, the trial court mistakenly referred to Dr. Elias in describing Dr. Zoellick's testimony. The trial court's summary, however, begins by referring correctly to Dr. Zoellick and accurately describes Dr. Zoellick's testimony. Later in its summary, the trial court describes Dr. Elias and his testimony, and again its description is accurate. Thus, it is clear that the trial court's momentary reference to Dr. Elias instead of Dr. Zoellick when referring to Dr. Zoellick's testimony did not reflect any misunderstanding of the evidence but was merely a slip of the tongue. As such, it does not demonstrate any fundamental error affecting the trial court's reasoning or ultimate determination that the defendant was guilty of the charge. We find that the evidence was sufficient to support the defendant's conviction on count II.
¶ 34 The Statute Is Not Unconstitutionally Vague or Ambiguous
¶ 35 Having addressed the defendant's third and fourth arguments, we now turn to his argument that section 25.5 of the Act is impermissibly vague and should therefore be held void.
"A criminal law may be declared unconstitutionally vague for either of two independent reasons. First, the statute may fail to provide the kind of notice that would enable a person of ordinary intelligence to understand what conduct is prohibited. [Citations.] Second, a statute may be declared unconstitutionally vague if it fails to provide explicit standards for those who apply it, thus authorizing or even encouraging arbitrary and discriminatory enforcement. [Citations.]" People v. Law, 202 Ill. 2d 578, 582-83, 270 Ill. Dec. 53, 782 N.E.2d 247 (2002).
The defendant argues that the statute is unconstitutionally vague in both of these ways, but as he provides no support for his assertion that the statute fails to provide adequate standards for those who apply it, we find this argument forfeited. Ill. S.Ct. R. 341(h)(7) (eff. Sept. 1, 2006); Mikolajczyk v. Ford Motor Co., 374 Ill.App.3d 646, 677, 312 Ill. Dec. 441, 870 N.E.2d 885 (2007). We therefore address only whether the statute is so vague that an ordinary person cannot understand what conduct it prohibits. Whether a statute is constitutional is a question of law, which we consider de novo. Law, 202 Ill.2d at 582, 270 Ill. Dec. 53, 782 N.E.2d 247. We begin with the presumption that a statute is constitutional, and the burden of establishing that it is not must be borne by the party challenging its validity. Id.
¶ 36 The defendant contends that the statute is vague in that the terms "false or fraudulent" and "material representation" are not defined within the statute. This contention is meritless; these terms are within the daily vocabulary of ordinary people. "False" means untrue or "not genuine," and "fraudulent" means "intended to deceive." Webster's New Collegiate Dictionary 409, 453 (1979); see also People v. Yarbrough, 128 Ill. 2d 460, 473, 132 Ill. Dec. 422, 539 N.E.2d 1228 (1989) (fraud is conduct that is "calculated to deceive"); Rybak, 181 Ill.App.3d at 899, 130 Ill. Dec. 852, 537 N.E.2d 1321 ("Fraud encompasses anything calculated to deceive, as in acts, omissions and concealment including * * * silence if accompanied by deceptive conduct or suppression of material facts * * *."). Likewise, "material" means significant or consequential, *1190 and a "representation" is a "statement or account made to influence opinion or action." Webster's New Collegiate Dictionary at 702, 974 (1979). The statute does not attach any arcane or unexpected meanings to these terms. The defendant suggests that the trial court's use of a Webster's dictionary to illustrate the common meaning of these terms means that the statute is "overly broad," but he provides no explanation of what he means by this or why it would be a pertinent defect.[1] To the contrary, in construing a statute, courts give words their plain and ordinary meanings (In re M.T., 221 Ill. 2d 517, 524, 304 Ill. Dec. 336, 852 N.E.2d 792 (2006)), and a nontechnical dictionary like Webster's is a repository of such ordinary definitions. The use of dictionary definitions to illustrate the commonly understood meaning of a term is perfectly legitimate. See id. at 535, 304 Ill. Dec. 336, 852 N.E.2d 792 (quoting Webster's Third New International Dictionary in construing the criminal statute at issue there). We therefore reject the defendant's argument that the statute is so vague that a person of ordinary intelligence is left to guess at the conduct it proscribes.
¶ 37 We also reject the defendant's argument that the rule of lenity applies. The rule of lenity is a tool of statutory construction under which any ambiguity in a criminal statute must be resolved in favor of the accused. People v. Jones, 223 Ill. 2d 569, 581, 308 Ill. Dec. 402, 861 N.E.2d 967 (2006). However, when the language of a criminal statute is clear and unambiguous, we must apply the statute without resort to tools of statutory construction such as the rule of lenity. Id. As the language of section 25.5(a) is clear and easily understood, the rule of lenity has no application here.
¶ 38 The defendant raises one final attack on the validity of section 25.5 that amounts to a different type of due process argument (although he does not label it as such), in that he complains that it is irrational and unfair to criminalize conduct that harmed no one. M.T., 221 Ill.2d at 534-36, 304 Ill. Dec. 336, 852 N.E.2d 792 (a statute must bear a reasonable relationship to the harm the legislature intended to remedy by enacting it). He notes that section 25.5(a), unlike civil causes of action based on fraud, is not limited to cases in which the victim of the fraud reasonably relied on the fraudulent representations and thereby sustained some detriment. Compare 820 ILCS 305/25.5 (West 2006), with Kinn v. Prairie Farms/Muller Pinehurst, 368 Ill.App.3d 728, 733, 307 Ill. Dec. 99, 859 N.E.2d 99 (2006) (reciting elements of a common-law fraud claim). Here, Infomax produced its report in mid-November 2006 and Gallagher Bassett therefore knew that the defendant had been working at a light-duty job by the time it issued payments to him in February and June of 2007. Thus, the defendant argues, it is clear that Gallagher Bassett did not rely on his alleged false statements to Hathaway or the doctors in deciding to issue the payments, and it is unfair to penalize him for making these statements. He asks us to remedy, through our interpretation of the statute, the legislature's supposed oversight in failing to require a showing of reasonable *1191 reliance and resulting harm. In essence, he argues that the application of the statute should be limited to instances in which the fraudulent conduct of the accused induced the victim to act in a way that it would not otherwise have done and caused it harm.
¶ 39 We cannot condone this approach, in which the validity of a criminal law is measured by its similarity to civil causes of action. Civil laws are designed to allow an individual to seek redress for wrongs done against him or her through the imposition of damages against the wrongdoer, or occasionally through nonmonetary equitable remedies. In considering whether it is just to impose damages, a court must determine whether the plaintiff was harmed by the wrongdoer's actions: there is little societal interest in enforcing rules and mores between individuals where no harm was caused by the infraction. By contrast, criminal laws are aimed at conduct that the legislature has determined is so pernicious that the State as a whole has an interest in deterring and punishing it. The legislature's assessment of the danger posed by the conduct need not rest on the harm done to any particular victim: it may encompass the likely risk of harm to society as a whole. For this reason, there are a variety of crimes that do not require the commission of any actual harm, including conspiracy, perjury, unlawful entry, the possession of certain contraband (drugs and drug paraphernalia, burglary tools, etc.), and the attempt to commit a crime. In each of these cases, the legislature has determined that the risk of harm to society as a whole from particular conduct (e.g., unlawful entry into a home, or lying under oath and thereby subverting the judicial system) is sufficiently serious that the conduct should be punished regardless of whether the State can prove that the defendant's actions caused someone harm. The conduct of making fraudulent claims or statements in order to obtain workers' compensation benefits poses a similarly broad risk to the public by undermining the fairness and integrity of the workers' compensation system, which was designed to provide prompt and equitable compensation for employment-related injuries. Keating v. 68th & Paxton, L.L.C., 401 Ill.App.3d 456, 463, 344 Ill. Dec. 293, 936 N.E.2d 1050 (2010).
¶ 40 The legislature has wide discretion to establish criminal offenses and set the penalties for those offenses, limited by the constitutional guarantee that a person may not be deprived of liberty without due process of law. Carpenter, 228 Ill.2d at 267, 320 Ill. Dec. 888, 888 N.E.2d 105. If the statute at issue does not affect a fundamental constitutional right, the test for determining whether it complies with substantive due process requirements is the rational basis test. Id. at 267-68, 320 Ill. Dec. 888, 888 N.E.2d 105. A statute is constitutional under that test where "it `bears a reasonable relationship to a public interest to be served, and the means adopted are a reasonable method of accomplishing the desired objective.'" People v. Wright, 194 Ill. 2d 1, 24, 251 Ill. Dec. 469, 740 N.E.2d 755 (2000) (quoting People v. Adams, 144 Ill. 2d 381, 390, 163 Ill. Dec. 483, 581 N.E.2d 637 (1991)).
¶ 41 Here, the purpose of the statute is plain on its face: section 25.5 of the Act seeks to deter workers from making fraudulent claims or statements intended to secure workers' compensation benefits to which they would not otherwise be entitled. In doing so, the legislature sought to preserve the monies already paid by employers *1192 for workers' compensation insurance, ensure that such funds were directed toward those with legitimate claims, and prevent workers' compensation insurance premiums from growing so exorbitant as to discourage businesses from operating in Illinois. See 94th Ill. Gen. Assem., Senate Proceedings, May 26, 2005, at 82-85 (floor debate on House Bill 2137) (comments of Senators Link, Dillard, and Cronin on the role of the antifraud provisions of the bill in correcting perceived abuses of the workers' compensation system and the importance of those provisions to the business community). The means chosen by the legislaturea statute criminalizing the making of fraudulent claims and representations for the purpose of obtaining workers' compensation benefits, regardless of whether the fraud resulted in harm to an identifiable victimis rationally related to these purposes. Wright, 194 Ill.2d at 24, 251 Ill. Dec. 469, 740 N.E.2d 755. The defendant's challenges to the constitutionality of section 25.5 therefore fail. As discussed in the next section, however, the defendant's arguments about fairness and harm to otherswhile not preventing a conviction under the Actare relevant in assessing the penalty to be imposed for that conviction.
¶ 42 Restitution
¶ 43 The defendant's final argument relates to the amount of restitution he was ordered to pay. Section 25.5(b) of the Act provides that anyone convicted of violating section 25.5(a) "shall" be ordered to pay "complete restitution" to any person or entity that was defrauded. 820 ILCS 305/25.5(b) (West 2006). The total restitution that the defendant was ordered to pay Gallagher Bassett was $22,594.61, which included $5,923.50 in attorney fees relating to the criminal case; $5,105 for Dr. Zoellick's independent medical examination of the defendant; $9,671.05 for surveillance costs; about $1,418 for other investigation costs; and about $477 for medical records. The defendant contends that he should not have been ordered to pay the fees of Gallagher Bassett's attorneys that related only to his criminal trial, or the costs for the independent medical examination, because neither of these expenses was proximately caused by his alleged misrepresentations. The State argues that the defendant has forfeited this issue because he failed to file a motion to reduce his sentence in the trial court. The State also argues that the disputed expenses fall within the scope of the "complete restitution" required by the statute.
¶ 44 A defendant generally forfeits any arguments related to his sentence if he fails to challenge the sentence in the trial court, such as by filing a motion to reconsider or reduce the sentence. People v. Fontana, 251 Ill.App.3d 694, 704, 190 Ill. Dec. 863, 622 N.E.2d 893 (1993). However, a trial court may only impose a sentence that is authorized, and any unauthorized aspect of a sentence is void and may be attacked at any time:
"The established rule is that where a court having jurisdiction over both the person and the offense imposes a sentence in excess of what the statute permits, the legal and authorized portion of the sentence is not void, but the excess portion of the sentence is void." In re T.E., 85 Ill. 2d 326, 333, 53 Ill. Dec. 241, 423 N.E.2d 910 (1981).
Here, the defendant in essence is contending that certain items of restitution were unauthorized because they were not caused by his fraudulent statements. We thus address whether the lack of a causal connection between the offense of conviction *1193 and particular costs would render the imposition of restitution for those costs unauthorized and therefore void. See People v. Harris, 319 Ill.App.3d 534, 536, 253 Ill. Dec. 594, 745 N.E.2d 717 (2001) (if trial court required the defendant to pay restitution for a cost that was not within the proper definition of "restitution," the sentence could be attacked as void).
¶ 45 We begin by looking to the language of the statute itself to see what kinds of payments may be ordered. Yang v. City of Chicago, 195 Ill. 2d 96, 103, 253 Ill. Dec. 418, 745 N.E.2d 541 (2001). Section 25.5(b) of the Act requires that a person convicted must pay "complete restitution" to any person or entity that was "defrauded," without defining the term "complete restitution." 820 ILCS 305/25.5(b) (West 2006). However, if statutory language is clear and unambiguous when given its plain and ordinary meaning, that language must be applied. "Restitution" as a penalty in criminal cases has a well-established meaning in Illinois law: it refers to payment made to a victim in order to make the victim whole or to pay for the costs the victim incurred as a result of the defendant's actions. Harris, 319 Ill.App.3d at 536, 253 Ill. Dec. 594, 745 N.E.2d 717; Fontana, 251 Ill.App.3d at 707, 190 Ill. Dec. 863, 622 N.E.2d 893. "Complete restitution" therefore refers to full payment for all of the victim's expenses that are recoverable. Restitution may not be ordered for costs that are not related to the acts for which the defendant was convicted. People v. Mahle, 57 Ill. 2d 279, 284, 312 N.E.2d 267 (1974) ("trial court was not empowered to order restitution of sums" that were unrelated to the charges).
¶ 46 Here, the defendant attacks two components of the restitution he was sentenced to pay: the costs associated with Dr. Zoellick's independent medical examination, and the attorney fees relating to the defendant's criminal trial. The first of these is clearly within the scope of costs for which the statute authorizes payment. The defendant suggests that Gallagher Bassett would have ordered an independent medical examination of him in any case, even if he had not misrepresented the extent of his injuries, but he cites nothing in the record to support this assertion. To the contrary, it is a fair inference that Gallagher Bassett was motivated to seek such an examination in this case because the defendant's statements to Dr. Elias about his level of pain and disability were contradicted by his videotaped actions. Accordingly, we reject the argument that the restitution order was void insofar as it required the defendant to pay the costs of the independent medical examination. Harris, 319 Ill.App.3d at 537, 253 Ill. Dec. 594, 745 N.E.2d 717.
¶ 47 Although the causal connection between the defendant's criminal conduct and Gallagher Bassett's attorney fees relating to his criminal trial is less obvious, these fees are likewise a valid exercise of restitution. Restitution is properly ordered for losses proximately caused by the criminal actions that form the basis for the defendant's conviction. People v. Clausell, 385 Ill.App.3d 1079, 1082, 328 Ill. Dec. 346, 904 N.E.2d 108 (2008); People v. Gallinger, 252 Ill.App.3d 816, 819, 191 Ill. Dec. 550, 624 N.E.2d 399 (1993). In a workers' compensation fraud case such as this one, restitution must be focused on the out-of-pocket losses that flow from the defendant's fraudulent statements. Those losses might include, for example, benefits that were erroneously advanced based on a false understanding *1194 about the disability created by the misrepresentations; the cost of determining the true nature or extent of the injury; or the fees for the additional time that attorneys were required to devote to resolving the workers' compensation proceedings over and above that which would have been necessary in the absence of the fraud.
¶ 48 In this case, the defendant's fraudulent statements were sufficient to motivate Gallagher Bassett to report him to the antifraud division of the Commission and thence to the State's Attorney. Gallagher Bassett's involvement in the criminal proceedings might have ended there. However, the attorneys representing Gallagher Bassett in the workers' compensation proceedings before the Commission were subpoenaed to provide documents and witnesses in the criminal proceedings. It was the necessity of responding to these subpoenas, and not, as the defendant suggests, a desire to "monitor" the criminal proceedings, that resulted in the $5,923.50 in attorney fees that Gallagher Bassett incurred. These fees were clearly over and above those that would have been necessary in the absence of the fraud, and thus the restitution order is proper as it relates to these fees.
¶ 49 Although the defendant has not challenged the other expenses included in the restitution order, the possibility that they might be void under the principles discussed above requires us to consider whether they are proper. People v. Thompson, 209 Ill. 2d 19, 27, 282 Ill. Dec. 183, 805 N.E.2d 1200 (2004) ("courts have an independent duty to vacate void orders and may sua sponte declare an order void"). Of particular concern to us is the cost of surveillance. This expense could not have been the result of the defendant's fraudulent statements, because Gallagher Bassett reached its decision to hire Infomax to conduct the surveillance before it was aware of the fraudulent statements made by the defendant. Gallagher Bassett decided to hire Infomax to conduct surveillance on the defendant sometime between October 12 (the date of the defendant's injury) and October 25, 2006 (the first date on which Infomax conducted surveillance). However, there is no evidence that the defendant had made any fraudulent statements by that time, much less that Gallagher Bassett knew of them. The defendant's first visit to Dr. Elias was on October 19, and the record does not show that anyone at Gallagher Bassett knew of the level of pain that he was reporting to Dr. Elias at that time. The surveillance had already begun by the time the defendant had his next visit with Dr. Elias, and it was completed before he filed his initial workers' compensation claim (which, as we have discussed, was not in itself fraudulent). Gallagher Bassett's decision to begin surveillance on the defendant might have been prudent, but given the circumstances we cannot say that it was proximately caused by the defendant's later fraudulent statements. Accordingly, the $9,671.05 portion of the restitution order that is based on the costs of surveillance is void and must be vacated. T.E., 85 Ill.2d at 333, 53 Ill. Dec. 241, 423 N.E.2d 910; Mahle, 57 Ill.2d at 284, 312 N.E.2d 267.
¶ 50 Finally, the defendant argues that Gallagher Bassett was not a true "victim" that was "defrauded" (the word used in section 25.5(b) of the Act), because it potentially had the ability to pass the costs it sustained as a result of his fraudulent statements on to others, i.e., Plote or its workers' compensation insurance carrier, Arch. The defendant is correct that a victim may recover restitution only for those *1195 expenses that truly came out of its own pocket and generally may not assert claims on behalf of others. Here, however, the State submitted evidence that Gallagher Bassett paid the above costs itself, and there was no evidence that any of these costs were passed on to any other entity. Accordingly, Gallagher Bassett was "a person or entity" entitled to seek restitution under section 25.5(b) of the Act.[2]
¶ 51 CONCLUSION
¶ 52 The legislature did not act irrationally or ambiguously in seeking to deter workers' compensation fraud by enacting criminal penalties for such fraud, and the defendant's conviction on count II is supported by the evidence. We therefore affirm the defendant's conviction on count II. However, because the evidence does not support the defendant's conviction on count I, we reverse that conviction. In addition, because $9,671.05 of the ordered restitution was not caused by the defendant's criminal acts, we must reduce the order of restitution to a total of $12,923.56. In all other respects, the judgment of the circuit court of Kane County is affirmed.
¶ 53 Affirmed as modified in part and reversed in part.
Justice BURKE concurred in the judgment and opinion.
Justice HUTCHINSON specially concurred, with opinion.
¶ 54 Justice HUTCHINSON, specially concurring:
¶ 55 I concur in the majority's disposition based on the issues defendant presented in his appellate brief and on the record on appeal. I write separately to express my concern regarding the procedure by which the State was able to achieve restitution for Arch and Gallagher Bassett.
¶ 56 On April 22, 2009, the grand jury returned an indictment charging defendant with committing two offenses of workers' compensation fraud (820 ILCS 305/25.5(a)(1), (a)(2) (West 2006)). The indictment provided, in relevant part, that defendant:
"intentionally presented a false material representation for the payment of workers' compensation benefit, in that said defendant claimed to the Illinois Workers' Compensation Commission that he was totally disabled, based on an accident defendant stated occurred while employed at PLOTE construction company."
¶ 57 On March 2, 2010, the trial court allowed the State's motion to amend the indictment. The amendment to count I provided, in relevant part, that defendant:
"intentionally presented a false material representation for the payment of workers' compensation benefit, in that said defendant claimed to the Illinois Workers['] Compensation Commission, his employer's worker[s'] compensation insurance provider, and to a worker[s'] compensation insurance claims adjuster that he was totally disabled and unable to work, based on an accident defendant stated occurred while employed *1196 at Plote construction company." (Emphasis added.)
The amendment to count II provided, in relevant part, that defendant:
"intentionally presented a false material statement for the purpose of obtaining worker[s'] compensation benefits, in that said defendant claimed to the Illinois Workers['] Compensation Commission and his employer's worker[s'] compensation insurance provider he was totally disabled and unable to work, and claimed to a worker[s'] compensation insurance claims adjuster that he was totally disabled, unable to work and not working for anyone else, based on an accident defendant stated occurred while employed at PLOTE construction company." (Emphasis added.)
¶ 58 My concern lies in the propriety of how the State sought amendment, the lack of an objection by defense counsel, and the effect of the trial court's ruling granting the State's motion. Our supreme court has plainly stated that, "once an indictment has been returned by a grand jury, it may not be broadened through amendment except by the grand jury itself." People v. Benitez, 169 Ill. 2d 245, 254, 214 Ill. Dec. 490, 661 N.E.2d 344 (1996) (citing People v. Kincaid, 87 Ill. 2d 107, 124, 57 Ill. Dec. 610, 429 N.E.2d 508 (1981)). Underlying this rule is the policy ensuring that citizens' rights are not at the mercy or control of a prosecutor. Benitez, 169 Ill.2d at 254, 214 Ill. Dec. 490, 661 N.E.2d 344 (citing Kincaid, 87 Ill.2d at 124, 57 Ill. Dec. 610, 429 N.E.2d 508). Exceptions to this rule are found in section 111-5 of the Code of Criminal Procedure of 1963 (725 ILCS 5/111-5 (West 2010)).
¶ 59 The State presented this motion on the eve of trial, generally alleging that the defects were formal and that defendant would not be prejudiced by the amendment to the indictments. It appears that no objection was made by defense counsel to the proposed addition of two alleged victims that defendant purportedly defrauded, i.e., the insurance provider (Arch) and the insurance claims adjuster (Gallagher Bassett). Because defendant posed no objection to the trial court and because defendant did not appeal the trial court's ruling, I decline to express an opinion as to whether the addition of Arch and Gallagher Bassett as "victims" was merely a formal change or whether it substantively broadened the scope of the indictment. Because of defendant's failure to challenge the trial court's ruling, I also decline to express an opinion as to whether defendant was prejudiced by the amendments. Although the majority did not express this reasoning in its analysis, once the trial court granted the State's motion to amend the indictment, both Arch and Gallagher Bassett were named victims and entitled to restitution pursuant to section 25.5(b) of the Act (820 ILCS 305/25.5(b) (West 2006)). Despite my declination to express an opinion, I raise the matter out of fairness to the parties and the proceedings.
¶ 60 Accordingly, on this record and based on the issues presented, I specially concur.
NOTES
[1] Although a statute may be attacked as "overbroad" if it "discourages people from exercising their first amendment rights for fear of punishment" (People v. Nitz, 285 Ill. App. 3d 364, 371, 221 Ill. Dec. 9, 674 N.E.2d 802 (1996)), the defendant makes no such argument here.
[2] The special concurrence raises the concern that the last-minute amendments to the indictment that occurred in this case might have prejudiced the defendant. However, the defendant raised no such argument on appeal. While we do not disregard the ultimate fairness of the proceedings below, we decline to raise issues, except those involving voidness, not raised by the parties themselves. People v. Givens, 237 Ill. 2d 311, 323-24, 343 Ill. Dec. 146, 934 N.E.2d 470 (2010) (explaining the importance of limiting the court's review to those issues that have been properly raised and argued by the parties). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/786638/ | 372 F.3d 717
INTERNATIONAL TRUCK AND ENGINE CORPORATION, Plaintiff-Appellant,v.Brett BRAY, In his official capacity as the Director of the Motor Vehicle Division of the Texas Department of Transportation and Chief Executive and Administrative Officer of the Motor Vehicle Board of the Texas Department of Transportation, Defendant-Appellee.
No. 03-50479.
United States Court of Appeals, Fifth Circuit.
June 3, 2004.
Stephen F. Fink (argued), Bryan Patrick Neal, Thompson & Knight, Dallas, TX, for Plaintiff-Appellant.
Brian E. Berwick, Nancy Elizabeth Olinger, Kristen L. Worman (argued), Asst. Attys. Gen., Austin, TX, for Defendant-Appellee.
Martin D. Beirne, Beirne, Maynard & Parsons, Houston, TX, for Freightliner, LLC, Amicus Curiae.
Appeal from the United States District Court for the Western District of Texas.
Before KING, Chief Judge, and BENAVIDES and CLEMENT, Circuit Judges.
BENAVIDES, Circuit Judge:
1
Plaintiff-Appellant International Truck and Engine Corporation, a manufacturer of medium- and heavy-duty trucks, operates two used truck centers at which it sells trucks of the kind it manufactures. Defendant-Appellee Brett Bray is Director of the Motor Vehicle Division of the Texas Department of Transportation, the agency responsible for regulating sales of motor vehicles in Texas. Since 1999, the Director has maintained that Texas law prohibits motor vehicle manufacturers like International from owning, operating, controlling, or acting as dealers of motor vehicles. See Tex. Occ.Code Ann. § 2301.476 (Vernon 2004). The Director has therefore refused to renew International's license to operate its used truck centers.
2
International contends that this refusal is unlawful. First, International argues that section 2301.476(c) prohibits manufacturers from acting as dealers of new vehicles, not from acting as dealers of used vehicles. Alternatively, International argues that if section 2301.476(c) applies to used vehicles, then it violates the dormant Commerce Clause. The district court granted summary judgment in favor of the Director. Because we conclude that section 2301.476(c) prohibits International from acting as a dealer of used vehicles and does not violate the dormant Commerce Clause, we affirm the judgment of the district court.
I.
3
Since 1995, the Texas Motor Vehicle Code has prohibited manufacturers of motor vehicles from operating as dealers of new motor vehicles. See Act of June 8, 1995, ch. 357, §§ 2, 18, 1995 Tex. Gen. Laws 2887, 2889, 2900 (codified at Tex.Rev.Civ. Stat. Ann. art. 4413(36), § 5.02(a), (b)(25) (Vernon Supp.1999) (amended 1999)). This provision did not affect International's used truck centers, which sold used trucks only.1
4
In 1999, the Texas Legislature extensively amended the Motor Vehicle Code. See Act of June 18, 1999, ch. 1047, 1999 Tex. Gen. Laws 3861. As amended, the Code included section 5.02C(c), which provided that "a manufacturer or distributor may not directly or indirectly: (1) own an interest in a dealer or dealership; (2) operate or control a dealer or dealership; or (3) act in the capacity of a dealer." Id. § 14, 1999 Tex. Gen. Laws at 3875 (codified at Tex.Rev.Civ. Stat. Ann. art. 4413(36), § 5.02C(c) (Vernon Supp.2002) (repealed 2003)). The Motor Vehicle Division, which was responsible for enforcing this provision of the Code, interpreted section 5.02C(c) as prohibiting manufacturer control of any dealer, not just dealers of new vehicles.
5
Section 5.02C(c) thus prohibited International from owning and operating its used truck centers, and in 2000, the Motor Vehicle Division announced that it would not renew International's dealer license. International then sued the Director in federal court for declaratory and injunctive relief. International conceded that, as written, section 5.02C(c) prohibited it from acting as a dealer of used trucks. International, however, argued that section 5.02C(c) was invalid because it violated the dormant Commerce Clause and the Equal Protection Clause. The parties agreed that International could continue to operate its used truck centers during the pendency of the district court case and this appeal.
6
While International's suit was pending in the district court, we addressed a similar challenge to section 5.02C(c) in Ford Motor Co. v. Texas Department of Transportation, 264 F.3d 493 (5th Cir.2001). Ford wanted to sell "pre-owned" motor vehicles through a website and alleged that section 5.02C(c) violated a number of constitutional provisions, including the dormant Commerce Clause. Id. at 498. International submitted a brief as an amicus curiae in support of Ford. We rejected Ford's and International's arguments and held that Texas could constitutionally prohibit manufacturers from controlling dealers. Id. at 499-505.
7
International subsequently amended its complaint. International maintained its constitutional challenges and also argued that, as interpreted in Ford, section 5.02C(c) did not bar manufacturers from controlling dealers of used vehicles. International then sought partial summary judgment on its statutory claim only. The Director answered International's amended complaint and sought summary judgment on International's statutory and constitutional claims.
8
The district court granted summary judgment to the Director. The court determined that statements in Ford purporting to limit section 5.02C(c) to sales of new vehicles were non-binding dicta and construed section 5.02C(c) to prohibit manufacturer control of all motor vehicle dealers. The court also ruled that section 5.02C(c) violated neither the Commerce Clause nor the Equal Protection Clause. International appealed.2
9
While this appeal was pending, a nonsubstantive recodification passed by the Legislature in 2001 became effective. See Act effective June 1, 2003, ch. 1421, §§ 5, 13, 2001 Tex. Gen. Laws 4570, 4954, 5020. This recodification repealed section 5.02C(c) of the Motor Vehicle Code and enacted an identical provision as section 2301.476(c) of the Occupations Code. Id. The parties have clarified that International is challenging section 2301.476, the current version of Texas's ban on manufacturer control of dealers.
10
Therefore, this appeal raises two questions: whether section 2301.476(c) bars manufacturers from owning, operating, or acting as dealers of used vehicles and, if so, whether section 2301.476(c) violates the dormant Commerce Clause.3 We review de novo the district court's grant of summary judgment. See New Orleans Assets, L.L.C. v. Woodward, 363 F.3d 372, 374 (5th Cir.2004).4
II.
11
We first address whether section 2301.476(c) bars manufacturers from owning, operating, controlling or acting as dealers of used vehicles. International, relying principally on our treatment of section 5.02C(c) in Ford, argues that "dealer" refers only to a dealer of new motor vehicles. Therefore, International argues, section 2301.476(c) does not prohibit it from acting as a dealer of used trucks. The Director maintains that section 2301.476(c) bars a manufacturer from owning, operating, or acting as a dealer of any vehicles whether new or used. We conclude that Ford's treatment of section 5.02C(c) does not bind us and that section 2301.476(c) applies to dealers of new and used motor vehicles.
A.
12
We begin by determining whether Ford's treatment of 2301.476(c)'s predecessor, section 5.02C(c) of the Motor Vehicle Code, controls our interpretation of section 2301.476(c). In Ford, we stated twice that section 5.02C(c) of the Motor Vehicle Code applied only to dealers of new motor vehicles. 264 F.3d at 504 n. 5, 508-09. The district court treated these statements as non-binding dicta, but International argues that they are binding interpretations of Texas law.
13
The first passage relied upon by International appears in Ford's discussion of the dormant Commerce Clause. Id. at 499-505. Ford had argued that section 5.02C(c) did not further Texas's purported interest in reducing manufacturer leverage over dealers because Ford did not enjoy a superior position in the market for the "pre-owned vehicles" it sought to sell. Id. at 503-04. In the course of rejecting this argument, we commented in a footnote that "[t]he Code only prohibits a manufacturer from selling `new motor vehicles' — motor vehicles which have not been the subject of a prior retail sale." Id. at 504 n. 5.
14
This statement is dictum and, as such, does not bind us. See Gochicoa v. Johnson, 238 F.3d 278, 286 n. 11 (5th Cir.2000). A statement is dictum if it "could have been deleted without seriously impairing the analytical foundations of the holding" and "being peripheral, may not have received the full and careful consideration of the court that uttered it." Id. (quoting In re Cajun Elec. Power Coop., Inc., 109 F.3d 248, 256 (5th Cir.1997)). A statement is not dictum if it is necessary to the result or constitutes an explication of the governing rules of law. Id.
15
Our commentary in the footnote at issue was not necessary to the resolution of Ford's dormant Commerce Clause challenge and we did not rely on it in rejecting that challenge. Moreover, this statement was not an explication of the law governing our analysis, but commentary on a quirk in the Texas statutes. Therefore, the first passage relied upon by International is dictum, and we may disregard it.
16
The second passage relied upon by International appears in Ford's discussion of vagueness. See 264 F.3d at 507-10. Ford claimed that it had no fair notice of what conduct constituted "operating or controlling a dealer" or "acting in the capacity of a dealer" under Texas law. Id. at 507. We addressed this claim by explaining section 5.02C(c). We began with the premise that "[t]he Motor Vehicle Code provides that for purposes of [section] 5.02, `dealer' means `franchised dealer'" and therefore reasoned that "in deciding whether [section] 5.02C(c) provides a comprehensible standard for `acting in the capacity of a dealer,' this Court must first look to the definition of a franchised dealer." Id. We then observed that franchised dealers are dealers of new motor vehicles. Id.5
17
Whether this section of Ford's analysis represents dictum is a close question. Ford's equation of dealer and franchised dealer was not strictly necessary to its conclusion that section 5.02C(c) was not vague. Rather, the crux of Ford's vagueness analysis is that "[t]he phrase `in the capacity of a dealer' is naturally read to include those activities performed by a licensed dealer," and that "[t]he Code defines exactly what activities are performed by a dealer — buying, selling, or exchanging motor vehicles." Id. at 510. This analysis did not hinge on whether vehicles are new or used. Nevertheless, the Ford panel's explanation of the challenged statute was not mere commentary but was arguably part of Ford's explication of governing law. See Gochicoa, 238 F.3d at 286 n. 11. In essence, Ford reasoned that section 5.02C(c) was not vague because it had a particular meaning, albeit a meaning section 5.02C(c) may not have had.
18
We need not resolve this question, however, because even were this second passage not dicta, it still would not bind us. A prior panel opinion's interpretation of state law binds us no less firmly than a prior panel interpretation of federal law would. Am. Int'l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 270 n. 4 (5th Cir.2003). When we interpret state law, however, we are also bound to apply the law as the state's highest court would. FDIC v. Abraham, 137 F.3d 264, 267-68 (5th Cir.1998). To balance these obligations, we recognize that we need not follow a prior panel opinion when a subsequent state court decision or statutory amendment shows that a prior panel decision was clearly wrong. Id. at 269.
19
A subsequent statutory amendment undermines the passage in question. In 2001, the Legislature passed a recodification of section 5.02C(c) that became effective in 2003. See Act effective June 1, 2003, ch. 1421 §§ 5, 13, 2001 Tex. Gen. Laws 4570, 4954, 5020. As part of this recodification, the Legislature repealed article 4413(36) of the Motor Vehicle Code, including section 5.02C(c), and replaced it with chapter 2301 of the Occupations Code. Id. §§ 5, 13, 2001 Tex. Gen. Laws at 4954, 5020.
20
The Legislature intended this recodification to be nonsubstantive. Id. § 14, 2001 Tex. Gen. Laws at 5020. In most cases, that intent would confirm that a prior panel's prediction of state law was correct. In this unique instance, however, the nonsubstantive nature of the recodification leads us to precisely the opposite conclusion.6 We stated in Ford that "[t]he Motor Vehicle Code provides that for purposes of [section] 5.02, `dealer' means `franchised dealer.'" 264 F.3d at 508. The only plausible basis for this statement was old section 5.02(a), which provided: "In this section, `dealer' means `franchised dealer.'" Tex.Rev.Civ. Stat. Ann. art. 4413(36), § 5.02(a) (Vernon 2002) (repealed 2003) (emphasis added). We then assumed that the equation of "dealer" and "franchised dealer" in old section 5.02(a) applied to old section 5.02C. See Ford, 264 F.3d at 508.
21
Subsequent legislation, however, clarifies that section 5.02(a) applied only within section 5.02 and that section 5.02C was a separate section. The recodification eliminated old section 5.02(a), and the subsections to which section 5.02(a) had applied were modified to clarify that they apply only to franchised dealers. See Act effective June 1, 2003, §§ 5, 13, 2001 Tex. Gen. Laws at 4439, 4947-53, 5020. Compare Tex. Occ.Code Ann. §§ 2301.251, 2301.451-.471 (Vernon 2004), with Tex.Rev.Civ. Stat. Ann. art. 4413(36), § 5.02(b)(1)-(27). In contrast, when section 2301.476(c) replaced section 5.02C(c), the new provision was not modified to demonstrate its application to franchised dealers only. See Act effective June 1, 2003, § 5, 2001 Tex. Gen. Laws at 4954. Compare Tex. Occ.Code Ann. § 2301.476(c), with Tex.Rev.Civ. Stat. Ann. art. 4413(36), § 5.02C(c). If Ford were correct, the wording of section 5.02C(c) would likewise have been changed. As the Occupations Code stands, however, the basis for Ford's equation of "dealers" and "franchised dealers" has evaporated. Therefore, Ford's understanding of section 5.02C(c) does not control our interpretation of section 2301.476(c).7
B.
22
We thus turn to the meaning of section 2301.476(c) as currently codified. Applying Texas principles of statutory interpretation, see Tonkawa Tribe v. Richards, 75 F.3d 1039, 1046 (5th Cir.1996), we hold that the term "dealer" in section 2301.476(c) extends to all dealers, not just dealers of new vehicles.
23
First, when a statute defines a term, Texas courts must construe that term according to its statutory definition. Tex. Gov't Code Ann. § 311.011(b) (Vernon 1998); Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002). In chapter 2301 of the Texas Occupations Code, the term dealer means "a person who holds a general distinguishing number," i.e., a dealer's license. Tex. Occ.Code Ann. § 2301.002(7), (17). All dealers must hold general distinguishing numbers whether the vehicles they sell are new or not. See Tex. Transp. Code §§ 503.021, 503.029 (Vernon 1999). In fact, International filed this suit to retain the general distinguishing number it needs to operate its used truck centers. Therefore, the term "dealer" encompasses all dealers, including International.
24
Second, Texas courts must interpret statutory terms consistently. See Needham, 82 S.W.3d at 318. If "dealer" meant only "a dealer of new vehicles" for purposes of section 2301.476(c), then a "dealer" in section 2301.476(c) would be different from a "dealer" in other parts of the Occupations and Transportation Codes. See Tex. Occ.Code Ann. § 2301.002(7), (17); Tex. Transp. Code Ann. § 503.002(4) (Vernon Supp.2004). To remain consistent throughout the Occupations and Transportation Codes, "dealer" must include dealers of used vehicles.
25
Third, Texas courts avoid interpreting statutory language as superfluous. Tex. Gov't Code Ann. § 311.021(2) (Vernon 1998); Bd. of Adjustment v. Wende, 92 S.W.3d 424, 432 (Tex.2002). Courts "must attempt to give effect to every word and phrase if it is reasonable to do so." Abrams v. Jones, 35 S.W.3d 620, 625 (Tex.2000). Several provisions within section 2301.476 refer to "franchised dealers." E.g., Tex. Occ.Code Ann. § 2301.476(d), (f), (g). Were we to equate "dealer" with "franchised dealer" in section 2301.476, these references to franchised dealers would become superfluous.
26
International asserts that our construction of section 2301.476(c) creates a strange loophole. Section 2301.476(c) prohibits a manufacturer from owning, operating, or controlling an interest in a "dealer or dealership." In chapter 2301 of the Occupations Code, the term "dealership" means "the physical premises and business facilities on which a franchised dealer operates his business." Tex. Occ.Code Ann. § 2301.002(8) (emphasis added). Thus, the term "dealership" applies only to "franchised dealers," i.e., dealers of "new motor vehicles." See id. § 2301.002(16)(B). Because "dealer" does not apply to dealers of new vehicles only, section 2301.476(c)(1) apparently prohibits a manufacturer from owning an interest in a used car dealer, but not from owning an interest in that dealer's premises and business facilities.8 Texas courts may consider the consequences of a particular construction, Tex. Gov't Code Ann. 311.023(5) (Vernon 1998), and will not adhere to a literal interpretation that is "patently absurd." City of Amarillo v. Martin, 971 S.W.2d 426, 428 n. 1 (Tex.1998). Although our reading leaves a loophole, that reading is not patently absurd. Therefore, we may not depart from the meaning of "dealer" as defined by the statute.
27
International also argues that the legislative and statutory history of section 2301.476(c) indicates that it applies to new cars only. In particular, International emphasizes that section 2301.476(c)'s pre-1999 predecessor applied to dealers of new cars only. See Tex.Rev.Civ. Stat. Ann. art. 4413(36), §§ 1.03(15), 5.02(a), (b)(25) (Vernon Supp.1999) (amended 1999). International argues that the 1999 Legislature never intended to change the meaning of these provisions. Under Texas principles of statutory interpretation, however, "prior law and legislative history cannot be used to alter or disregard the express terms of a code provision when its meaning is clear from the code when considered in its entirety." Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999); see also Logan v. State, 89 S.W.3d 619, 627 (Tex.Crim.App.2002). The Occupations Code clearly defines dealer, and we may not depart from that definition.
28
Therefore, the term "dealer" in section 2301.476(c) is not limited to dealers of new vehicles. Section 2301.476(c) bars International from owning, operating, or acting as a dealer of used trucks.
III.
29
We turn next to International's argument that if section 2301.476(c) bars International from acting as a dealer of used trucks, then that provision violates the dormant Commerce Clause, U.S. Const. art. I, § 8, cl. 3. The dormant Commerce Clause, also known as the negative Commerce Clause, prohibits states from engaging in economic protectionism. See Dickerson v. Bailey, 336 F.3d 388, 395 (5th Cir.2003). International argues that section 2301.476(c) is the type of economic protectionism forbidden by the dormant Commerce Clause. The Director insists that section 2301.476(c) is legitimate economic regulation with only incidental and nondiscriminatory effects on commerce. We agree with the Director.
30
To evaluate whether a state statute comports with the dormant Commerce Clause, we begin by asking whether the statute impermissibly discriminates against interstate commerce or regulates evenhandedly with only incidental effects on interstate commerce. Ford, 264 F.3d at 499. If the statute impermissibly discriminates, then it is valid only if the state "can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest." C & A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383, 392, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994). If the statute does not impermissibly discriminate, then the statute is valid unless the burden imposed on interstate commerce is "clearly excessive" in relation to the putative local benefits. Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970).
A.
31
Section 2301.476(c) does not impermissibly discriminate against interstate commerce. In this context, discrimination means "differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter." Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 99, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994). A court may find discrimination based on evidence of discriminatory effect or discriminatory purpose. Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 270, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984).
32
As Ford makes clear, however, discrimination does not include all instances in which a state law burdens some out-of-state interest while benefitting some in-state interest. 264 F.3d at 500; see also Tex. Manufactured Hous. Ass'n v. City of Nederland, 101 F.3d 1095, 1102 (5th Cir.1996)("[T]he mere fact that a statute has the effect of benefitting a local industry while burdening a separate interstate industry does not in itself establish that the statute is discriminatory."). Rather, a state statute impermissibly discriminates "only when a[s]tate discriminates among similarly situated in-state and out-of-state interests." Ford, 264 F.3d at 500.9
33
Section 2301.476 does not discriminate between similarly situated in-state and out-of-state interests. In Ford, the plaintiff manufacturer failed to show that section 5.02C(c) was discriminatory in purpose or effect. 264 F.3d at 502. We found nothing in the legislative history to suggest that the Texas Legislature intended to discriminate between similarly situated interests. Id. at 500. Furthermore, we found no evidence of discriminatory effect. Id. at 500-02. Section 5.02C(c) did not discriminate against manufacturers based on out-of-state status; motor vehicle manufacturers, whether Texas-based or not, could not own, operate, control, or act as a dealer. Id. at 502. Nor did section 5.02C(c) discriminate against dealers based on out-of-state status; any non-manufacturer, whether Texas-based or not, could receive a dealer license. Id. This rationale applies with equal force to section 2301.476(c).
34
International characterizes Ford's holding as a failure of summary judgment proof and claims that the improved summary judgment record in this case raises issues that the record in Ford did not. Like Ford, however, International has failed to create any genuine question that Texas law impermissibly discriminates between similarly situated in-state and out-of-state interests.
35
First, International emphasizes that the practical effect of section 2301.476(c) falls primarily on out-of-state companies. That all or most affected businesses are located out-of-state does not tend to prove that a statute is discriminatory. See Exxon, 437 U.S. at 126, 98 S.Ct. 2207; Ford, 264 F.3d at 502. Thus, the record that International has purportedly enhanced supports a proposition we have already dismissed as irrelevant.
36
International also relies heavily on an exception to section 2301.476(c) added by the Legislature in 1997. See Act of May 22, 1997, ch. 639, § 36, 1997 Tex. Gen. Laws 2158, 2007. That exception provides that a person who held both a motor home manufacturer's license and a motor home dealer's license on June 7, 1995,10 may continue to hold both licenses and operate as a manufacturer and as a dealer of motor homes but of no other type of vehicle. Tex. Occ.Code Ann. § 2301.476(h) (formerly codified at Tex.Rev.Civ. Stat. Ann. art. 4413(36), § 5.02C(h) (Vernon Supp.2002)). The legislative history suggests that a state legislator crafted this exemption to allow a particular manufacturer, located in his district, to continue acting as a dealer. See, e.g., Sen. State Affairs Comm. Subcomm. on Infrastructure: Senate Bill 1250, 76th Leg., Reg. Sess. 42-43 (Tex.1999) (statement of Sen. Nixon). This provision and its origins were before us in Ford, but International claims to have tendered new evidence showing that only one manufacturer — a Texas manufacturer — qualifies for the exemption.11
37
Neither the apparent purpose of 2301.476(h) nor its practical effect supports International's contention that this narrow grandfather clause is designed to benefit in-state manufacturers as a class at the expense of out-of-state manufacturers as a class. Section 2301.476(h) applies only to motor home manufacturers, and only to those motor home manufacturers who also held a dealer license on June 7, 1995. Thus, with respect to manufacturers who did not hold a dealer license on June 7, 1995, section 2301.476 does not discriminate. No such manufacturer, whether in-state or out-of-state, can now qualify for a dealer license. With respect to manufacturers who did hold a dealer license on June 7, 1995, International might succeed in raising an inference of discrimination, albeit a weak one, if it could show that section 2301.476(h) exempted all Texas manufacturer-dealers but no out-of-state manufacturer-dealers. The record, however, does not even suggest that much. The record does not include a list of all manufacturers who held a dealer license on June 7, 1995. Hence, we cannot deduce that only a Texas manufacturer qualifies for the exception. Furthermore, at least one Texas manufacturer has previously acted as a dealer and therefore could potentially have held a dealer license on June 7, 1995, but still not qualify for section 2301.476(h) because it is not a manufacturer and dealer of motor homes. The burden of section 2301.476(c) could fall on both in-state and out-of-state manufacturers just as one would expect from a non-discriminatory statute.
B.
38
Because section 2301.476(c) is not discriminatory, we apply the Pike balancing test, which asks whether a challenged statute imposes a burden on interstate commerce that is "clearly excessive" in relation to the statute's putative local benefits. See Pike, 397 U.S. at 142, 90 S.Ct. 844. International has failed to demonstrate any burden, much less a burden clearly excessive in relation to the state's legitimate interests. Therefore, section 2301.476(c) passes the Pike balancing test.
1.
39
International has not demonstrated any burden on interstate commerce. A statute imposes a burden when it inhibits the flow of goods interstate. See Ford, 264 F.3d at 503. In Ford, we found no evidence to suggest that section 5.02C(c) inhibited the flow of passenger vehicles interstate, id., and International offers no credible reason why the situation would be different for medium-and heavy-duty trucks, whether new or used.
40
International seeks to establish a burden by claiming that closing its used truck centers will inhibit the flow of new medium-and heavy-duty trucks into Texas. According to International, its used truck centers drive up demand for new trucks by accepting trade-ins. Ending this practice, claims International, will suppress demand for new trucks and thereby reduce the supply of new trucks coming into Texas.
41
The fact that a regulation causes some business to shift from one supplier to another does not mean that the regulation burdens commerce; the dormant Commerce Clause "protects the interstate market, not particular interstate firms." Exxon, 437 U.S. at 127-28, 98 S.Ct. 2207. Purchasers of medium-and heavy-duty trucks will simply turn to new trucks manufactured by International's competitors.
42
Even assuming that but for section 2301.476, International and its competitors could all stimulate demand for new trucks by accepting trade-ins, we would still find no burden actionable under the Commerce Clause. The Supreme Court has "rejected the `notion that the Commerce Clause protects the particular structure or methods of operation in a ... market.'" CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 93-94, 107 S.Ct. 1637, 95 L.Ed.2d 67 (1987) (quoting Exxon, 437 U.S. at 127, 98 S.Ct. 2207). Whenever a state regulates competition in a market, that regulation may drive the market from its former equilibrium and thereby affect the quantity sold. See Ford, 264 F.3d at 512 (Jones, J., concurring). Such effects, however, speak to the wisdom of the statute, not to its constitutionality under the dormant Commerce Clause. Exxon, 437 U.S. at 128, 98 S.Ct. 2207. Therefore, International has failed to demonstrate any burden on interstate commerce.12
2.
43
Even if section 2301.476(c) created some minimal burden on interstate commerce, that burden would not be clearly excessive as compared to the putative local benefits. In assessing a statute's putative local benefits, we cannot "second-guess the empirical judgments of lawmakers concerning the utility of legislation." CTS, 481 U.S. at 92, 107 S.Ct. 1637 (quoting Kassel v. Consol. Freightways Corp., 450 U.S. 662, 679, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981) (Brennan, J., concurring)). Rather, we credit a putative local benefit "so long as an examination of the evidence before or available to the lawmaker indicates that the regulation is not wholly irrational in light of its purposes." Ford, 264 F.3d at 504 (quoting Kassel, 450 U.S. at 680-81, 101 S.Ct. 1309).
44
Thus, in Ford, we declared that Texas's purpose for passing section 2301.476(c)'s predecessor — "to prevent vertically integrated companies from taking advantage of their market position" and "to prevent frauds, unfair practices, discrimination, impositions, and other abuses of [its] citizens" — are legitimate state interests. Ford, 264 F.3d at 503 (quoting Lewis, 447 U.S. at 43, 100 S.Ct. 2009). We also held that a reasonable legislator could have believed section 2301.476(c)'s predecessor would further those legitimate interests. Id. at 504. Although International maintains that the Legislature had no credible evidence to believe that manufacturers could use their disproportionate market power to the disadvantage of dealers, we may not now revisit Ford's conclusion that the Legislature did not act irrationally in banning manufacturer control of dealers.13
45
International, however, also focuses more specifically on whether section 2301.476(c) furthers this interest in the market for used trucks. According to International, its status as a manufacturer gives it no special leverage over dealers because, whereas manufacturers control the supply of new vehicles, they cannot control the supply of used vehicles. In our view, however, a reasonable legislator could easily have believed that a ban on manufacturers acting as dealers of used cars would further Texas's legitimate interests. The testimony heard by the Legislature in 1999 did not differentiate between dealers of new and used vehicles, so a legislator could reasonably have concluded that manufacturers could unfairly compete with dealers no matter what type of vehicles the dealer sold. See generally Tex. Leg.'s House Comm. on Transp.: H.B. 3092, 76th Leg., Reg. Sess.(Tex.1999); Sen. State Affairs Comm. Subcomm. on Infrastructure: Senate Bill 1250, 76th Leg., Reg. Sess. (Tex.1999); House Research Organization, Bill Analysis of H.B. 3092, 76th Leg., Reg. Sess., at 4, 6 (Tex.1999).
46
International's own operations confirm the reasonableness of this conclusion. According to International, its used truck centers are designed to help dealers of its new trucks by driving up demand. At oral argument, counsel for International described the relationship between the used truck centers and the new truck dealerships as "symbiotic." International may wield its power over dealers beneficently, but it no doubt wields power. Thus, a legislator could reasonably have believed that a ban on manufacturers acting as dealers of used cars would further Texas's legitimate interests. That reasonable belief is enough to confirm that section 2301.476(c) has at least putative local benefits.
47
Thus, International has failed to raise a genuine issue of material fact as to whether the burden on commerce supposedly created by section 2301.476(c) is clearly excessive in relation to the putative local benefit.
IV.
48
The district court correctly granted summary judgment to the Director. Section 2301.476(c) prohibits International from operating as a dealer of used trucks and does not violate the Commerce Clause.
49
AFFIRMED.
Notes:
1
Texas statutes do not use the term "used" to describe motor vehicles, but they do define "new motor vehicle" as "a motor vehicle that has not been the subject of a `retail sale' regardless of the mileage of the vehicle," Tex. Occ.Code § 2301.002(24). The large majority of trucks at issue in this case are not "new" under Texas law, so for ease of reference, we will call these trucks "used." We do not intend by our references to "new" and "used" to adjudicate whether any vehicles are "new motor vehicles" under Texas law or to delineate by implication the scope of section 2301.476(c)
2
On appeal, International has abandoned its claim under the Equal Protection Clause
3
In one heading in its appellate brief, International purports to have advanced a "Procedural-Due-Process Claim." International has not supported this heading with any arguments or authorities pertaining to procedural due process, so we treat International's argument about the meaning of section 2301.476(c) as presenting a question of statutory interpretation, not a question of constitutional law
4
We have jurisdiction to consider this controversy. The Director, relying onFleet Bank, National Association v. Burke, 160 F.3d 883 (2d Cir.1998), argues that International's constitutional claims are insufficient to invoke federal question jurisdiction under the well-pleaded complaint rule. Fleet Bank is inapposite. The Second Circuit carefully limited its holding in Fleet Bank to the context of preemption. Id. at 889. Preemption, standing alone, creates a federal defense but not a federal question. Id. International's dormant Commerce Clause challenge, in contrast, raises a federal question.
In a cursory reference at the beginning of his brief, the Director also claims sovereign immunity from International's suit. The Director waived sovereign immunity. A state "cannot simultaneously proceed past the motion and answer stage to the merits and hold back an immunity defense." Neinast v. Texas, 217 F.3d 275, 279 (5th Cir.2000). By seeking summary judgment on the merits before raising sovereign immunity, the Director did exactly that.
5
Texas law provides for several different types of dealersSee Tex. Occ.Code Ann. § 2301.002(7), (16), (25) (Vernon 2004); Tex. Transp. Code Ann. § 503.001(4) (Vernon Supp.2004). A franchised dealer buys, sells, and exchanges new motor vehicles. Tex. Occ.Code Ann. § 2301.002(16); Tex. Transp. Code § 503.001(8). "Nonfranchised" dealers include wholesale motor vehicle dealers and independent motor vehicle dealers. Tex. Occ.Code Ann. § 2301.002(25). Wholesale motor vehicle dealers sell motor vehicles to other dealers or to certain foreign dealers. Tex. Transp. Code Ann. § 503.001(16). Independent motor vehicle dealers are all other dealers. Id. § 503.001(9). International fits in this residual category, so it holds an independent dealer's license.
6
The Texas Supreme Court confronted the meaning of a purportedly nonsubstantive recodification inFleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278 (Tex.1999). In that case, the Legislature directed that a statute be recodified without substantive changes, but the plain text of the recodified statute bore a meaning different from its predecessor. Id. at 280-81. Despite the fact that the Legislature had intended that the recodification be nonsubstantive, the court held that the plain text of the recodified statute controlled. Id. at 286. In particular, the court emphasized the importance of Texas's citizens being able to rely upon the plain text of a current law rather than having to examine legislative and statutory history. Id. at 284-85.
Fleming Foods does not control this case because the text of section 2301.476(c) does not unequivocally demonstrate that the recodification was, in actuality, substantive. See id. at 286. Rather, it is precisely the nonsubstantive nature of the recodification that proves our prior interpretation was in error. We note with interest, however, the Texas Supreme Court's adherence to the text of the recodified statute in roughly analogous circumstances. We also echo the Texas Supreme Court's concern that citizens be able to rely on the plain text of the current Code.
7
Our understanding of section 2301.476(c) does not undermineFord's holding that section 5.02C(c) was not vague. Now, as in Ford, Texas statutes delineate what conduct is prohibited by defining what activities constitute acting as a dealer. See Ford, 264 F.3d at 510.
8
We note this possible loophole only as part of our analysis of the term "dealer" and do not intend to enunciate a binding interpretation of section 2301.476(c)(1)
9
Ford's understanding of discrimination rests squarely on Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978), in which the Court evaluated a Maryland law that prohibited producers and refiners of petroleum products from operating retail service stations. The Court rejected Exxon's claim that, because Maryland had no in-state petroleum producers and refiners, the law discriminated against out-of-state interests. Id. at 125, 98 S.Ct. 2207. That the law affected only out-of-state interests did not tend to prove impermissible discrimination. Id. at 125-26, 98 S.Ct. 2207. The law at issue did not discriminate between in-state and out-of-state refiners or between in-state and out-of-state service stations. Id.
In contrast, the Court has found impermissible discrimination when a state statute discriminates between similarly-situated interests. See, e.g., Or. Waste, 511 U.S. at 100, 114 S.Ct. 1345 (discrimination between in-state and out-of-state waste); Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 42, 100 S.Ct. 2009, 64 L.Ed.2d 702 (1980) (discrimination among similarly-situated financial conglomerates according to their contacts with the state); Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 351-52, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977) (benefit to in-state apple growers and dealers at the expense of out-of-state apple growers and dealers).
10
June 7, 1995 was the day before the effective date of Texas's first ban on manufacturers operating as dealersSee Act of June 8, 1995, ch. 357, §§ 2, 18, 1995 Tex. Gen. Laws 2887, 2889, 2900 (codified as amended at Tex.Rev.Civ. Stat. Ann. art. 4413(36), § 5.02(a), (b)(25) (Vernon Supp.1999) (amended 1999)).
11
International repeatedly insists that section 2301.476(h) "facially" discriminates against out-of-state manufacturers. Section 2301.476(h), however, nowhere mentions Texas or out-of-state manufacturers. Therefore, we understand International to argue that the purportedly discriminatory effect of 2301.476(h) is evidence of its protectionist purpose
12
International seeks to avoid the implications ofExxon and Ford by differentiating the market for used medium and heavy-duty trucks from the markets at issue in those cases. In particular, International claims (1) that the market for used large trucks is a secondary rather than primary market; (2) that the market for used large trucks is primarily interstate rather than primarily intrastate; and (3) that unlike the used large truck market, the markets for passenger vehicles are dominated by a few large manufacturer-producers. International catalogues these purported distinctions without providing any explanation of their relevance, and we perceive none. International also emphasizes that, unlike the markets for passenger vehicles and gasoline, the market for used large trucks involves products that are themselves instruments of interstate commerce. This distinction is spurious, as it is hard to imagine products more closely tied to interstate commerce than passenger vehicles and gasoline.
13
Regardless, International mischaracterizes the legislative history. Before the Legislature passed section 2301.476(c)'s predecessor, committees in both chambers heard expert testimony that manufacturers enjoyed a great deal of leverage over dealers and could use that leverage unfairlySee Tex. Leg.'s House Comm. on Transp.: H.B. 3092, 76th Leg., Reg. Sess. 14-15, 21-22 (Tex.1999) (statement of Mr. Gene Fondren, President, Tex. Auto. Dealers Ass'n); Sen. State Affairs Comm. Subcomm. on Infrastructure: Senate Bill 1250, 76th Leg., Reg. Sess. 57-61 (Tex.1999) (statement of Mr. Gene Fondren). See generally House Research Organization, Bill Analysis of H.B. 3092, 76th Leg., Reg. Sess., at 4, 6 (Tex.1999). This testimony came from a witness that International regards as biased, but we do not sit in judgment of the Legislature's determinations of credibility. See CTS, 481 U.S. at 92, 107 S.Ct. 1637. | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2436184/ | 314 S.W.2d 557 (1958)
KRUMPELMAN et al., Appellants,
v.
LOUISVILLE & JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT et al., Appellees.
LOUISVILLE & JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT et al., Appellants,
v.
KRUMPELMAN et al., Appellees.
Court of Appeals of Kentucky.
June 20, 1958.
*558 Lee S. Jones, Louisville, for Florence R. Krumpelman, Robert M. and Evelyn M. Bailey.
William E. Berry, Acting Director of Law, James G. Becker, Blakey Helm, Louisville, for Louisville and Jefferson County, Metropolitan Sewer Dist. and City of Louisville.
Richard B. Crawford, Alfred C. Krieger, Louisville, for Morrison & Conklin Const. Co. Inc., amicus curiae.
Stites, Wood, Helm & Peabody, James W. Stites, Carl L. Wedekind, Jr., Louisville, for Kentucky Trust Co.
*559 STEWART, Judge.
This action was filed as an agreed case under KRS 418.020, and involves the proposed construction of sewers and drains in territory newly annexed to the City of Louisville. The particular area contemplated to be served is a triangular tract across Taylorsville Road from Bowman Field in the southeast section of the city.
Under an Act adopted by the 1946 Legislature (KRS Chapter 76) the Louisville and Jefferson County Metropolitan Sewer District (hereinafter referred to as "Metropolitan") was created for the purpose of providing adequate sewer and drainage facilities in and around the City of Louisville. This Act recited that such a sewer district had no authority to levy property taxes but that it had the right to fix rates, rentals and charges, to be collected from the property owners served in the manner prescribed by the district. Nevertheless, this right to establish and collect sewer rates and other charges was subject to the approval, supervision and control of the legislative body of the city.
Service collections have furnished the sole source of income for Metropolitan in its operation and maintenance of the city's sewer and drainage systems and in its construction of additional sewers. However, the income of Metropolitan by itself was insufficient to provide funds for the installation of both trunk and lateral sewers in areas annexed to the city since July 1, 1946 (when KRS Chapter 76 became effective). These sections had been largely improved with residences depending on septic tanks for sewage disposal. The use of such methods in these closely-built-up sections presented a serious health menace, and, to bring relief as early as possible, Metropolitan adopted a policy of laying trunk sewers to reach all areas possible. This plan required separate financing of the lateral sewers which connected to these trunk sewers.
The 1952 Legislature amended the Act under which Metropolitan was created by providing in KRS 76.171 that where adequate sewers or drains have not been constructed in any territory annexed to a city of the first class since July 1, 1946, the city legislative body may by ordinance, on recommendation of the director of works, or of the board of a metropolitan sewer district if the city be in such a district, install branch or lateral lines within such territory to connect with the city's sewer or drainage systems.
KRS 76.172 of the Act was also amended in 1952 so as to authorize the sewer district to construct such branch or lateral sewers at the exclusive cost of the owners of land as set forth in KRS 93.370 with reference to the improvement of streets or alleys. The method of financing prescribed by KRS 93.370 was by the use of apportionment warrants issued against the benefited property.
In addition, the 1952 amendment placed the responsibility for approving plans, advertising for bids and issuing apportionment warrants on city officials, in accordance with KRS Chapter 93. Since the projects for new sewers and contracts for sewers generally were in all other cases made exclusively by Metropolitan, this statutory method as to lateral sewers proved to be impracticable. Therefore in 1956 the Legislature clarified KRS 76.172 by placing the aforementioned administrative features, as well as the construction work and control relating to lateral sewers, in the hands of Metropolitan. However, the 1952 amendment which fixes the apportioning of the cost among owners of benefited property remained unchanged.
The 1956 amendment further cleared up KRS 76.172 by incorporating the applicable wording of KRS 93.370 therein, which the 1952 amendment referred to only partially. This section now reads:
"When such sewers or drains are located in a public street or alley, the construction thereof shall be at the exclusive cost of owners of lots in each one-fourth of a square to be equally apportioned *560 by the metropolitan sewer district according to the number of square feet owned by said property owners. Each subdivision of the territory bounded on all sides by principal streets shall be deemed a square."
The 1956 amendment also states in subsection (6) of KRS 76.172 that a lien is created against the respective lots or land for the cost of such sewer facilities with interest thereon at the rate of six per cent per annum. Subsection (8) thereof requires Metropolitan to enter a record of all apportionment warrants in a register. Subsection (9) thereof provides that a lien shall exist from the date of the apportionment warrant, but that such lien shall not be valid against a purchaser for a valuable consideration without notice unless the apportionment warrant is entered and registered within ten days of its issuance.
Pursuant to the Act as amended, the Board of Aldermen of the City of Louisville, on Metropolitan's recommendation, enacted Ordinance No. 132, Series 1957, calling for the installation of sanitary sewers and property service connections in the area involved in the instant case. These five points are presented for adjudication:
(1) Is the lien given by the 1956 Act (or KRS 76.171 and 76.172) to the holder of an apportionment warrant for the construction of lateral sewers and service connections superior to any lien (except the statutory lien of other taxes) existing against the property benefited?
(2) Is the 1956 Act constitutional as to territories annexed to the City of Louisville since July 1, 1946?
(3) Is Ordinance No. 132 valid in respect to delegating the right to Metropolitan to make contracts for the construction of lateral sewers and property service connections at the cost of the property owners and issuing apportionment warrants therefor?
(4) Is Ordinance No. 132 valid in providing that such cost of construction of lateral sewers and of property service connections be assessed against the property owner without any provision therein for payment in annual installments?
(5) Is property that cannot be served directly, although it lies within the quarter block where sewer laterals are to be laid, subject to assessment to any extent in apportionment of the cost of such sewer construction?
The lower court answered each of the first four questions in the affirmative and the last or fifth in the negative. The parties hereto have prosecuted a joint appeal from the judgment entered in order to obtain a ruling of this Court on each of these questions. The Kentucky Trust Company, Florence R. Krumpelman and Robert M. and Evelyn M. Bailey, parties litigant below, address themselves only to certain of the questions, and we shall mention the points they raise in this respect in the course of this opinion.
I
Appellant, The Kentucky Trust Company (herein called "Mortgagee"), is the holder of mortgages against two parcels of improved land situated in the area to be sewered. One of these, which was executed and recorded May 2, 1952, is held against property owned by appellant, Florence R. Krumpelman; and the other, which was executed and recorded June 12, 1957, is held against property owned by one William V. and Ethel May Corbett and is herein referred to as the "Corbett mortgage". The Corbetts are not parties to this appeal.
Mortgagee appeals from that portion of the judgment which ruled that Metropolitan's apportionment warrants, when issued, will take precedence (1) over its 1952 Krumpelman mortgage which was recorded before the 1952 and 1956 amendments were passed, and (2) over its 1957 Corbett mortgage which was recorded before any notice of any apportionment warrants was given. It urges these grounds for reversal:
(1) The assessments for the cost of sewer construction are not to be considered *561 taxes; (2) the Act, as construed by the lower court, impairs the obligations of contracts entered into before any apportionment warrants were issued; (3) there is no statutory authority for granting superiority to the apportionment warrants over recorded liens; and (4) there is no authority for granting priority to sewer apportionment warrants over previously recorded liens.
We agree with Mortgagee that it is very generally held that special assessments or special taxes to pay for local improvements are not taxes in the ordinary or strict sense of the term. See Gosnell v. City of Louisville, 104 Ky. 201, 46 S.W. 722; and Kilgus v. Trustees of the Church Home for Females, 94 Ky. 439, 22 S.W. 750. In practice, and as usually understood, there is a clear distinction between taxes and special assessments. The latter are local burdens laid on property made for a public purpose, but fixed in amount once and for all time with reference to the special benefit which such property derives from the cost of the project, while taxes are generally held to be a rate or duty levied each year for purposes of general revenue, regardless of the direct benefit accruing to the person or property taxed. See Dressman v. Farmers' & Traders' Nat. Bank of Covington, 100 Ky. 571, 38 S.W.1052, 36 L.R.A. 121; and 63 C.J.S. Municipal Corporations § 1290b, page 1026.
However, broadly speaking, special assessments for benefits are part of the system of taxation, often being referred to as a method or species of taxation. The levy of such an assessment is an exercise of the taxing power. See Forester v. Coombs Land Co., 277 Ky. 279, 126 S.W.2d 433. So in a general sense of the word "taxes" includes a special assessment, and we have held that special assessments are at least in the nature of a tax. See City of Olive Hill v. Gearhart, 289 Ky. 53, 157 S.W.2d 481. This follows because they must be levied for a public purpose, and because they are an enforced contribution on the property owner for the public benefit.
It is next argued by Mortgagee that for the Court to construe the 1956 amendment to the Act as granting priority to the local assessment impairs the obligation of contracts which were entered into by Mortgagee before the apportionment warrants were issued. This contention is based upon the theory that the wording of the Act itself makes no attempt to give superiority to a sewer improvement lien over a preexisting lien that may have attached to the property affected; and it insists this must especially hold true as to its 1952 mortgage lien which was executed before the 1952 amendment was enacted. In addition, it is maintained that the same reasoning prevails as to the 1957 Corbett mortgage which was created after this amendment became effective but before any attempt was made to award the contract under discussion.
Our answer to this argument is that it is settled beyond controversy that the Legislature may create a lien for general taxes or for local assessments paramount to all other liens regardless of the priority of the latter as to time. There is no difference in this respect between special improvement assessments and general taxes. As has been adverted to, both are levied under the theory that they are for the general good, and the same powers for enforcing the collection of both special assessments and general taxes are generally given. A statute of this kind is universally held not to be open to the objection that it impairs the obligation of a contract or that it brings about the deprivation of a vested right. This principle of law is so well established that we deem it unnecessary to dwell on it at length, and we shall simply refer to these authorities where this concept is discussed at length: 48 Am.Jur., Special or Local Assessments, section 202, page 728; C. H. Hamilton's Law of Special Assessments, section 708, page 699; and 63 C.J.S. Municipal Corporations § 1570, page 1401.
*562 Since grounds (3) and (4) encompass each other we shall not treat them separately. We should add here that these grounds present the important issues to be determined in this case.
Where the statute makes a special assessment a lien on property, and is silent as to its priority, the lien so created may be given priority over any and all other liens, whether prior or subsequent to the assessments, if such an intention can be gathered from the Act, but not otherwise (emphasis ours). See 48 Am.Jur., Special or Local Assessments, section 202, page 729.
The 1952 amendment made no mention of the word "lien", but simply provided in subsection (1) of KRS 76.172 that "* * * when such sewers or drains are located in a public street or alley, the construction thereof shall be at the exclusive cost of the owners of land as provided in KRS 93.370 as to improvements of streets or alleys." KRS 93.370 merely sets forth the method of apportioning the cost of the improvement among the property owners benefited. The above amendment also made KRS 93.470 through 93.600 applicable to sewer assessments by reference. KRS 93.470, at the time the 1952 amendment was passed and also at present, provides in subsection (1) that "* * * the department of public finance, upon certification by the director of works of the inspection and acceptance of the work, shall make out all apportionment warrants for which liens are given for improvements of public ways, * * *" (emphasis ours).
The 1952 amendment provided in subsection (2) of KRS 76.172 that "* * * the other provisions of KRS Chapter 93 applicable to streets and alleys shall apply to such construction of sewers and drains, * * *." This provision by reference especially calls to our attention KRS 93.450, which recites that "* * * a lien shall exist against the respective lots for the cost of improvement of public streets and alleys, * * * for the apportionments made as provided in KRS 93.370, 93.380 and 93.390, and interest thereon at the rate of six per cent per annum."
Therefore, in view of what has been shown, we can safely state that a lien is provided in the 1952 amendment as to the cost of the lateral sewers. Furthermore, it will be recalled that a lien is expressly embraced in the 1956 amendment by subsection (6) of KRS 76.172.
Yet, what about the question of priority? The rule set forth above states that in event the statute is silent as to priority such an intention may be gathered from the Act. It would seem that such a legislative intent may be derived from the general statutory provisions regarding taxation. Thus it has been held that a lien for an assessment is prior to mortgages existing at the time it attaches, under a statute making such an assessment a part of the taxes due on the property and collectible as other taxes, and making tax liens prior to contract liens. See Seattle v. Hill, 14 Wash. 487, 45 P. 17, 35 L.R.A. 372, and the note thereto; City of Brunswick v. Gordon Realty Co., 163 Ga. 636, 136 S.E. 898; Morrissey v. Shriver, 88 Okl. 269, 214 P. 702.
Despite the fact that only a lien with no accompanying words is given in the statutes under discussion, it is our opinion it was the intention of the Legislature to make such a lien take precedence over all contract liens of private parties that attached after the 1952 amendment became effective. Courts have read into an assessment lien certain qualities no ordinary lien possesses. This is amply shown by this statement from Lybass v. Town of Ft. Myers, 56 Fla. 817, 47 So. 346, 350:
"If, as it seems, governmental statutory liens for local improvements may be made superior to mere contract liens of private parties acquired after the enactment of the statute providing for the lien, it is not necessary for the statute to in terms enact the priority.
*563 From the nature of the governmental function being performed and the rights of the public in the enforcement of the police powers, it is clear the intention of the Legislature was to put such liens upon the same footing as tax liens, thereby giving them priority over contract liens of private parties, acquired subsequent to the enactment of the law providing for the lien of the municipality. * * *"
It is our opinion the reasoning stated in the Lybass case is sound and should apply in this jurisdiction in determining the priority of the type of liens in controversy. See also Morrissey v. Shriver, 88 Okl. 269, 214 P. 702; Carstens & Earles, Inc., v. City of Seattle, 84 Wash. 88, 146 P. 381, Ann. Cas.1917A, 1070.
The 1952 amendment, which first established a lien for any proposed sewer improvements in a city of the first class, did not go into effect until June 19, 1952, whereas the Krumpelman mortgage was executed and recorded on May 2nd of that year. Under such a factual situation this inquiry is posed: Will the sewer assessment, if and when it is made, have priority over the Krumpelman mortgage? It is our view it will.
The sewer assessment statute under discussion gave the City of Louisville absolute power, in its discretion, to install sewers and drains in the territory in litigation and to apportion the costs therefor in the manner hereinbefore set out. It has also been shown that a lien is given upon all the property benefited by such improvements.
Although the city is limited to the property specifically benefited in the steps it may take for collection of the assessment expenses, it seems to us, from the nature of the public interest involved, the assessment claim against such property should be superior to all others. One who acquires an interest in land takes it subject to the right not only of the proper governmental authorities to lay general taxes upon it, but of a city wherein it lies to impose upon it the burden of paying the expenses of necessary public improvements which confer upon the land a special benefit. Statutes giving a lien for local assessment are remedial and therefore should be liberally construed and should also be interpreted to accomplish the legislative purpose. See Dressman v. Farmers' & Traders' Nat. Bank of Covington, supra.
The Dressman case also points out that one who holds a mortgage can have no higher equity or claim in the property than the mortgagor gave him. In this connection the opinion states [100 Ky. 571, 38 S.W. 1054]: "His (the mortgagee's) interest and title in same are conditional, and less than that of the mortgagor; and his rights in the property are entitled to no greater consideration than those under whom he claims. He, with the owner, has profited by the enhanced value given the property by the improvements which the assessment is made to pay for. * * *"
It is our belief, and we accordingly hold, that the lien provided for in the 1952 amendment will take priority over the Krumpelman mortgage. As to the Corbett mortgage which Mortgagee acquired on June 12, 1957, the law is well settled in this state, as amply shown in the Dressman case, cited above, that the local assessment lien shall be prior in rank to it.
This ruling is not in conflict with the cases relied upon by Mortgagee because in those decisions the courts were dealing with the question of priority between a mortgage and a lien for Workmen's Compensation premiums (Domenech v. Lee, 1 Cir., 66 F.2d 31, and Adkins v. Carol Mining Co., 281 Ky. 328, 136 S.W.2d 32); or a lien for wages (Turner v. Randolph, 213 Ky. 55, 280 S.W. 462); or a vendor's lien (Indiana Truck Corporation of Kentucky v. Hurry Up Broadway Co., 222 Ky. 521, 1 S.W.2d 990). There the rights of private parties alone were involved and no question of the proper application of governmental powers or the construction of *564 liens relative to the exercise of police power was shown.
Mortgagee asserts in connection with the 1956 amendment that subsection (9) of KRS 76.172 shows, at least by implication, that the Legislature intended the improvement lien to take effect only when recorded; otherwise there would have been no necessity for the provision, it reasons. Subsection (9) provides: "The lien shall exist from the date of the apportionment warrant, but a lien shall not be valid against a purchaser for a valuable consideration without notice, unless the apportionment warrant is entered and registered within ten days of its issuance." This is the same language as that used in subsection (2) of KRS 93.470, which was formerly Carroll's Statute, § 2839.
In the case at bar we have a lien created by an ordinance subsequent to the execution of both mortgages. The issuance of apportionment warrants is purely a ministerial act and does not have any effect on the lien's priority, which is already created by statute. The provision in question does, however, set forth a requirement as to recordation. This is that, in order to give notice to a purchaser for value, the apportionment warrant must be recorded within ten days of its issuance. Such a condition, of course, applies only to a good faith purchaser who has bought subsequent to the enactment of the ordinance, the completion of the work and the issuance of the apportionment warrants. How else would a purchaser of an improved lot, or a mortgagee who is deemed to be in a similar category to a purchaser, know of the existence of an outstanding lien? Obviously Mortgagee cannot apply the provision in the sense of time as to priority because it does not meet the requirements of a bona fide purchaser. See Barfield v. Gleason, 111 Ky. 491, 63 S.W. 964.
II
Turning now to the second contention, appellant, Florence R. Krumpelman, who owns a lot within the area sought to be improved, contests the legality of subjecting her property to an assessment for the cost of the proposed sewer construction pursuant to the ordinance heretofore mentioned. The basis of her contention is that the city formerly built all sewers and drains from taxes or from proceeds of general obligation bonds. Some of these bonds are still outstanding and, as a consequence, she as a taxpayer has been paying the costs of sewers for other property owners. Under the ordinance she will be required in addition to liquidate the entire cost of the sewer connection to her own lot. Appellant therefore maintains that the effect of the ordinance is to create an inequality in the tax burden on different property owners in the city in violation of Section 171 of the Constitution of Kentucky.
This same argument was advanced in Baker v. City of Princeton, 226 Ky. 409, 11 S.W.2d 94, 96, and there this Court, after pointing out that although a local assessment imposes an involuntary burden upon the property improved and that the right to do so is derived from the taxing power, held that such a charge is not strictly speaking a tax within the purview of the above constitutional section. That case, moreover, specifically ruled that Section 171 of the Kentucky Constitution has "no application to assessments for public improvements which confer local benefits." See also Robertson v. City of Danville, Ky., 291 S.W.2d 816.
III
The ordinance involved in this litigation delegates to Metropolitan the duties as to letting the sewer construction contract and as to issuing apportionment warrants. The third inquiry raised is whether these matters may be delegated. We have no doubt but that such may be done. Both of these acts are purely ministerial in their nature under the ordinance, and it is permissible to authorize a proper agency to perform them. This Court in Barfield v. Gleason, 111 Ky. 491, 63 S.W. *565 964, held that the advertising for bids, the letting of contracts and the issuing of apportionment warrants are all administrative functions that may be shared with another. In fact, the delegation of other and similar duties to Metropolitan has been specifically upheld by this Court. See Veail v. Louisville & Jefferson County Metropolitan Sewer District, 303 Ky. 248, 197 S.W.2d 413.
IV
The fourth question concerns the validity of the ordinance because it does not contain a provision which permits installment payments to be made on the improvement assessment. The 1952 amendment made KRS Chapter 93 applicable to public sewer construction, and KRS 93.480 through 93.530 of that Chapter authorized the payment of assessments for public improvements in cities of the first class to be made in installments. The 1956 amendment which undertook to clarify KRS 76.172, as hereinbefore mentioned, did not embrace in that statute as reenacted language to the effect that installment payments may be resorted to in retiring a sewer assessment.
We conclude the omission from the Act of a recital granting the right to pay the assessment in installments does not invalidate it. The recent case of Robertson v. City of Danville, Ky., 291 S.W.2d 816, construed an enactment of the 1956 Legislature, Acts 1956, c. 239, which provided that any city at its option could construct sewers under the Act and that, after the sewers were built, no lump sum assessment should be laid upon any property so improved as its share of the total cost of the project, but that instead each year a levy should be made against all the benefited property in whatever amount might be necessary to produce the principal and interest requirements of that year. This method of paying for the assessment was challenged as illegal because it afforded the property owner no opportunity to discharge his share of the debt at the outset. This Court held, however, the Legislature could grant authority to a municipality to compel a property owner to pay off a sewer assessment in no manner except in installments. Accordingly, it is our view that if a statute is valid which provides only for installment payments, the instant statute is likewise valid in that it requires the assessment debt to be paid in a lump sum. It is for the Legislature to determine the plan of special assessment payments.
V
The final contention is made by appellants, Robert M. and Evelyn M. Bailey. They assert that a part of their property lies without the area to be served directly from the proposed sewer construction. The lower court interpreted the applicable statute to mean that the sewer assessment should be made only against the property which abuts such improvement, and that property in each street in the last square, nearest to Taylorsville Road, cannot be served directly by the sewage system and should therefore not be assessed.
The statute speaks in terms only of quarter squares and makes no reference to any division of them. There are numerous cases where this Court has held in connection with street improvements that only the land in the quarter squares where alleys are built is to be assessed for the cost of constructing such alleys. See Washle v. Nehan, 97 Ky. 351, 41 S.W. 1040, 3 Ky. Law Rep. 387; Dumesnil v. Shanks, 97 Ky. 354, 30 S.W. 654, 31 S.W. 864, 17 Ky. Law Rep. 170; Dumesnil v. Gleason, 99 Ky. 652, 37 S.W. 69; Boone v. Nevin, 23 S.W. 512, 15 Ky.Law Rep. 547. This Court in the Washle and Shanks cases stated that underlying the whole question is the principle that only the property benefited by the improvement should bear the expense of it.
In the present case no direct benefit will be received by the property in each of the streets between the end of the sewer and Taylorsville Road, and it seems equitable and just that the assessment should *566 be limited to the property in those blocks which derives an advantage from the construction of the sewer. The trial judge correctly held that such nonbenefited property cannot be assessed for any of the sewers herein even though it lies within the quarter block.
Wherefore, the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2436223/ | 314 S.W.2d 263 (1958)
William H. KOMESHAK (Plaintiff) Appellant,
v.
MISSOURI PETROLEUM PRODUCTS COMPANY, a corporation (Defendant), Respondent.
No. 29844.
St. Louis Court of Appeals, Missouri.
June 14, 1958.
*264 Morris E. Stokes, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for appellant.
Rene J. Lusser, Lusser & Morris, St. Louis, for respondent.
RUDDY, Presiding Judge.
This is an action for damages for personal injuries sustained by plaintiff. From a judgment in favor of defendant, plaintiff appeals.
Plaintiff in his petition alleged that the defendant through it agents and employees was engaged in work necessary to the resurfacing of a highway in the State of Illinois; that a part of said work consisted in filling cavities beneath the surface of said highway by pumping molten tar through drilled holes into said cavity, thereby filling said cavity and that thereafter the hole was plugged with a wooden stake or plug for the purpose of preventing the molten tar from escaping until such time as it hardened or set.
Plaintiff further alleged in said petition that he was an employee of Maclair Asphalt Company, Inc., and as such was required *265 to remove said plugs and to clear away the excess tar around them; that when he removed a wooden stake or plug from one of said holes hot tar exploded and spewed forth from said hole striking and injuring him.
The petition charged defendant with negligence (a) in failing to warn plaintiff of the danger connected with removal of the plug; (b) in creating a dangerous condition by pumping hot tar into a moist pocket beneath the surface of the highway; and (c) in failing to instruct plaintiff to wait a sufficient length of time before removing the plug.
Defendant in its answer, among other things, alleged that at the time of plaintiff's injury he was a loaned employee of the defendant; that the defendant was the special employer of the plaintiff; and, by reason thereof plaintiff is barred from maintaining this action because he comes within the provisions of the Workmen's Compensation Law of the State of Illinois, S.H.A. ch. 48, § 138.1 et seq.
It is contended by plaintiff that the trial court erred in giving Instruction No. 5 at the request of defendant for the reason that it submitted a defense not supported by the evidence and for the further reason that said instruction failed to hypothesize facts essential to the defense submitted therein. This instruction submitted the defense that plaintiff was a loaned employee of defendant and was subject to the provisions of the Illinois Workmen's Compensation Act. We find it unnecessary to discuss the above mentioned points relied on by plaintiff because we must hold that plaintiff failed to make a case for the jury. Where plaintiff fails to make a case for the jury, alleged errors of the trial court are immaterial and deemed harmless. Cottonwood Fibre Co. v. Thompson, 359 Mo. 1062, 225 S.W.2d 702; Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240.
Plaintiff was employed by the Maclair Asphalt Company, Inc. His employer had a contract with the State of Illinois to resurface part of Illinois Highway No. 768. The Maclair Asphalt Company, Inc., entered into a contract with the defendant whereby the defendant agreed to drill approximately 250 holes in the concrete pavement on said highway and to pump approximately 5,000 gallons of asphalt into said drilled holes for the purpose of undersealing certain portions of said highway. The undersealing of said highway in this manner was a prerequisite to the resurfacing thereof by the Maclair Asphalt Company, Inc. The portions of the highway where the holes were drilled and the asphalt was pumped in had been indicated by the Highway Department of the State of Illinois. The 250 holes were drilled and filled with asphalt pursuant to the contract on September 28, 1953. It was a one-day job and the evidence showed that on such jobs it was the practice of the defendant to supply the key men on the job such as the pumper and the tank operator. Prior to appearing on the job the defendant had made arrangements with the Maclair Asphalt Company, Inc., to supply some of its employees. Among the persons furnished by the Maclair Asphalt Company, Inc., were the plaintiff and his foreman, Mr. DePriest.
The method of undersealing the highway was described by the foreman and another employee of the defendant. The first operation is to drill a hole approximately two inches in diameter in the concrete highway by means of a drill operated by an air compressor. Thereafter, hot asphalt of approximately 400 Fahrenheit is pumped underneath the pavement through a hose with a nozzle attached. The nozzle is inserted in the drilled hole and asphalt is pumped into the cavity until it is filled. After the nozzle is removed the hole is plugged with a tapered stake about four feet in length. This stake is inserted immediately after the nozzle is withdrawn. Following the men who perform the aforesaid operations and after they are a certain distance ahead, is another crew of men who remove the stakes and clean off any excess asphalt that may remain on the top of the pavement.
*266 The defendant company was considered a specialist in the job of undersealing highways. On the occasion of plaintiff's injury he was engaged in removing the stakes and cleaning the pavement.
The evidence showed that plaintiff had been employed by the Maclair Asphalt Company, Inc., for about three months prior to his injury. He had never worked for the defendant at any time, and prior to the day of his injury he had no experience in undersealing highways. He testified he had no experience from which he could know the danger of asphalt spewing or blowing out of the hole after the stake was removed. However, in this regard, he testified he withdrew the stake slowly and carefully. When he was asked why he withdrew the stake slowly and carefully, he answered, "Well, it is just human nature for one to watch out for himself on a job of that nature." In another part of his testimony he said he withdrew the stake carefully and "wiggled" it, because he "knew there was a danger of it blowing."
Plaintiff testified that his foreman, Mr. DePriest, worked for the Maclair Asphalt Company, Inc., on the day of plaintiff's injury and that he (plaintiff) had worked under him all of the day he was injured. When plaintiff was asked about the authority of Mr. DePriest, he said, "He was my foreman, and that is the only one I got my orders from." He further testified that the work he was doing at the time of his injury was done at and under the direction of Mr. DePriest. In this same connection it is undisputed in the evidence that Mr. DePriest was the only one who could instruct or give orders to plaintiff. Mr. DePriest was described by all of the witnesses as a "working foreman." All of the witnesses agreed that in the State of Illinois a laborer working on this job could only be instructed by the "working foreman." Mr. Busch, foreman for defendant, a witness offered by plaintiff, testified that he was not permitted to tell the "laborer working on the job what his job is, and what he is to do, and where to do it." He said any instructions he had for the plaintiff and other laborers on the job had to be given to Mr. DePriest and that he (Mr. DePriest) would convey the instructions to the laborers. The testimony indicated that the basis of this procedure, which had to be followed, was a Union rule in effect in the State of Illinois. It was admitted by plaintiff that only Mr. DePriest could give him instructions. When plaintiff was asked if Mr. DePriest, the working foreman, was the only one who could give him orders, he answered, "That is correct. Everything came through him."
Mr. Busch testified that he told Mr. DePriest "to keep the men back 10 or more pegs" behind the crew that was pumping the asphalt into the cavities. He further instructed Mr. DePriest that when the stake or peg was being removed "you should wiggle it and pull it slowly to see if there is any back pressure on the peg, and if there is you should put it back in the hole." He also testified he told Mr. DePriest if any bubbling of the asphalt is observed to put the stake back in the hole and to skip removing the stake from that hole and to go on to the next stake. In a deposition, this witness testified he instructed Mr. DePriest to keep the men at least eight holes back of the pumping crew. Mr. Busch further testified no one else, that he knew of, gave Mr. DePriest instructions.
Plaintiff testified that Mr. DePriest showed him how to do his work. He said he received no instructions from Mr. Busch or any other person connected with the defendant. He further testified that pursuant to instructions received from Mr. DePriest he worked "eight, nine or ten plugs behind" the pumping crew and withdrew the stakes from the holes slowly and carefully. He said he would "wiggle" the stake and then pull it up slowly. He further testified that he followed this procedure because of the cautionary instructions given him by Mr. DePriest. After the stake was removed the excess asphalt would be removed from the highway pavement. He said he knew you could not be too close *267 to the pumping crew "because it would be too hot," obviously meaning the asphalt would be too hot. At the time plaintiff sustained his injury he said he was working about "eight, nine, maybe ten" stakes behind the pumping crew. When plaintiff was asked if he could estimate the time that had elapsed between the filling of the hole with the asphalt and the removal of the stake, he answered "Well, it could have been anywhere from 10 to 15 to 20 minutes." When plaintiff removed the stake from the hole at which he was injured, he said he wiggled the stake and pulled it up slowly and turned the stake "a little way from me in case it did blow." He said nothing happened to indicate there was pressure in the hole. After removing the stake he heard a hiss and it was at this time that the asphalt spewed out of the hole and struck his arm. Plaintiff further testified that he was working on a downgrade in the highway and that the hole at which he was injured was "about midway" on the downgrade. Plaintiff further testified that on no other occasion that day did asphalt blow out of the hole when the stake was removed, nor did he experience any pressure on the stakes when removed from other holes.
There was testimony by one of plaintiff's witnesses that sometimes there is moisture under the pavement and when the hot asphalt is pumped into the hole steam pressure against the stake is developed. The testimony showed that the most likely place for moisture to be found was at the bottom of a downgrade or hill. However the witnesses said there was no way of determining the condition of the earth under the highway pavement.
Mr. Busch, a witness for plaintiff, testified that he had been in the employ of the defendant for 11 years and on the day of plaintiff's injury was in charge of defendant's employees. The evidence showed that he had experience in every phase and operation of undersealing highways. He estimated the time lapse on the day in question between the pumping of the asphalt into the hole and the removal of the stake was 15 to 20 minutes. It was his opinion that the asphalt on the job in question would congeal under all conditions in 15 to 20 minutes. However, he did say in other parts of his testimony that the time varies and may depend upon the amount of asphalt pumped into a hole and the amount of moisture therein. He said on the day of the injury to plaintiff the crew in which plaintiff was working was 8 to 10 stakes behind the pumping crew. He testified that there were about 3 dozen stakes on the job. When he was asked if there was any reason why he could not have used all of the stakes and kept the men more than 8 to 10 stakes behind the pumping crew, he answered, " * * * the material being pumped in there was not safe for more stakes, because when you pull a plug out you would find the asphalt had congealed." We understand from this testimony that if the asphalt congeals or solidifies there would be difficulty in removing the stakes. Mr. Busch further testified that in all his experience he has seen asphalt blow out of a hole after the stake was removed on only two occasions. Never in his experience was a man injured on the job from this cause.
Mr. Kuhnert, a witness for plaintiff, testified he was an employee of the defendant on the day of plaintiff's injury. He was pumping the asphalt into cavities under the highway pavement. He had four years experience in undersealing highways. He did not know how far plaintiff was behind the pumping crew at the time of his injury. He had no opinion as to how long it would take the asphalt to congeal or solidify and said the amount of time would depend on how much asphalt had been pumped into the hole. He did think that not more than 50 gallons of asphalt had been pumped into any one hole on the day of plaintiff's injury.
He further testified that in his experience on a few occasions, asphalt blew out *268 of the hole immediately after pumping it into the cavity and sometimes the stakes were forced out immediately after inserting the asphalt. He said he knew of no instance when the asphalt blew out of the hole when the stake was removed, although he was aware that it was possible. He did say that on rare occasions when the holes were close to each other asphalt would spurt out of the hole. There was no testimony as to how close the holes were to each other on the day in question. Mr. Kuhnert said it was steam created by the moisture in the cavity that caused the pressure against the stake. He thought a safe distance for removal of the stakes was eight to ten stakes behind the pumping crew. In his experience he never saw anyone get hurt when they maintained that distance. The witness further stated that it was standard procedure in undersealing a highway for the crew removing the stakes "to stay at least 8 or 10 stakes behind" the pumping crew. He said this was a safe distance, but in addition the stakes should be removed slowly and if there was any bubbling of the asphalt the stake should be reinserted. He never saw anyone get hurt when these practices were observed.
In his pleadings and throughout the trial and in this court plaintiff has contended that he was an employee of Maclair Asphalt Company, Inc., and was not an employee of the defendant. The extent of defendant's duty to plaintiff must be measured on the assumption that plaintiff was not a servant of the defendant.
Plaintiff's principal instruction required the jury to find that he was employed by the Maclair Asphalt Company, Inc. This instruction also told the jury that the defendant owed the duty to plaintiff to exercise ordinary care in giving instructions affecting the work which plaintiff was doing and told the jury that defendant had the duty of giving the plaintiff a timely and sufficient warning of any danger connected with the doing of his work in the vicinity where defendant's operation was being carried on. This instruction required the jury to find "that defendant instructed plaintiff's foreman to keep plaintiff eight or ten holes back from the place where said tar was being inserted, when defendant knew or should have known in the exercise of ordinary care that said distance was not sufficient to permit said tar to solidify under all conditions, and by reason thereof there was probable danger of said tar blowing out of the hole after removal of the stake or plug" and if they found that in the exercise of ordinary care defendant should have given instructions for plaintiff to remain a sufficient distance behind the point where the hot tar was being inserted to allow it to solidify under all conditions and failed to do so and found that this failure was negligence, it could find in favor of the plaintiff. Briefly, the theory of negligence submitted to the jury was the failure of defendant to instruct plaintiff to keep a sufficient distance behind the pumping crew and that defendant's failure to so instruct plaintiff could be the basis for a finding of negligence.
Plaintiff was not an employee of defendant and, therefore, the relationship of master and servant did not obtain. The evidence is uncontradicted that plaintiff was subject to the orders of his working foreman and no one else. His working foreman was an employee of the Maclair Asphalt Company, Inc. Defendant asserts that under these circumstances there was no duty cast upon the defendant to warn the plaintiff as to any precautions he should take or exercise in the performance of his work for his employer. Defendant cites the case of Karr v. Chicago, R. I. & P. R. Co., 341 Mo. 536, loc.cit. 546, 108 S.W.2d 44, loc.cit. 49, wherein the court held:
"It is not sufficient for complainant to show that he has been injured by the failure of another to perform a duty or obligation unless that duty or obligation was one owing to complainant. * * * Clearly *269 to be actionable negligence the injury complained of must result from the violation of a legal duty owed by defendant to the injured party."
In that case plaintiff was an employee of the defendant company and was injured when an automobile and one of defendant's passenger trains collided. The court held that plaintiff did not make a case for the jury because the negligence, if any, of the defendant was not a violation of a duty owing to the plaintiff and, therefore, did not afford plaintiff a cause of action against defendant on the ground of the negligence alleged.
Defendant also asserts that plaintiff was a mere volunteer as to the defendant in which case defendant would not be liable for mere negligence and cites the case of Shaffer v. St. Louis & S. F. Ry. Co., 201 Mo.App. 107, 208 S.W. 145. The rules of law set out in the Shaffer case and in the Karr case are inapplicable to the facts of the instant case.
The facts in the case at bar show the defendant to be a subcontractor working under an agreement with a general contractor. In the case of Loehring v. Westlake Construction Co., 118 Mo.App. 163, loc.cit. 172, 94 S.W. 747, loc.cit. 750, the court said:
"It is now well settled in the law of negligence applicable to cases of this nature, that there are duties owing, the violation of which will constitute actionable negligence, in instances other than those arising out of privity of contract, and many such arising outside of the relation of master and servant etc. The principle finds application in that class of cases where the injured party is rightfully on the premises, and is injured by the negligence of another under such circumstances as could reasonably have been foreseen, been contemplated, and the probable injury averted by ordinary care on the part of the person whose act caused the injury. From an examination of the adjudicated cases, the general rule deduced therefrom seems to be; whenever circumstances attending the situation are such that an ordinarily prudent person could reasonably apprehend that as the natural and probable consequences of his act, another person, rightfully there, will be in danger of receiving an injury, a duty to exercise ordinary care to prevent such injury arises, and if such care is not exercised by the party on whom the duty rests and injury to another person results therefrom, liability on the part of the negligent party to the person injured will generally exist, in the absence of any other controlling element or fact, and this too, without regard to the legal relationship of the parties."
The facts in the aforementioned case show that the plaintiff was in the employ of the Roebling Construction Company and charged negligence on the part of another contractor, Westlake Construction Company.
A contractor is liable for his or his servant's negligence in causing injury to the servant of another contractor engaged in work on the same premises. Liddle v. Collins Construction Co., Mo., 283 S.W.2d 474. To the same effect, see Kiehling v. Humes-Deal Co., Mo.App., 16 S.W.2d 637, and Miller v. Brunson Const. Co., Mo., 250 S.W.2d 958. The gist of the aforesaid principle of law, so far as it is applicable to the instant case, is that if the defendant could reasonably have foreseen and contemplated the act which caused the injury to plaintiff, then defendant may be found negligent.
We think the trial court in the instant case properly instructed the jury that defendant had the duty to give plaintiff timely and sufficient warning of any danger connected with plaintiff's work in the vicinity of or in connection with defendant's *270 operations, when defendant knew or should have known of the dangers involved.
It is admitted by plaintiff that the working foreman, Mr. DePriest, was the only person who could give him instructions. It is also admitted by plaintiff in his testimony that he was instructed by Mr. DePriest to stay behind the pumping crew 8, 9 or 10 stakes and to withdraw the stakes from the holes slowly and carefully. Plaintiff was further instructed to "wiggle" the stake when withdrawing it. It is also shown in plaintiff's case that Mr. Busch, foreman for the defendant, instructed Mr. DePriest to keep the men who were removing the stakes back 10 or more pegs behind the pumping crew and to wiggle the stake and pull it out slowly to see if there was any back pressure on the stake and if there should be, to put it back in the hole. Plaintiff's own case shows that these instructions were given to Mr. DePriest and, in turn, Mr. DePriest conveyed these instructions to the plaintiff. Plaintiff's testimony shows that at the time he was injured, he was about "8, 9, maybe 10" stakes behind the pumping crew.
In considering whether or not plaintiff made a submissible case for the jury, it is not enough for plaintiff's evidence to show that there has been damage to the person of plaintiff, nor is the standard of diligence to be measured in retrospect. Rather it must be the risk reasonably to be apprehended before the actual injury takes place.
Plaintiff contends that defendant could have reasonably foreseen and anticipated the danger and the injury that resulted. This contention of defendant when applied to the evidence in this case means that defendant could have reasonably foreseen the probability of asphalt spewing from the cavities when the stakes were removed at a distance of 8 to 10 stakes behind the pumping crew.
As we said before the rule applicable here must be considered not in the light of what happened, but with reference to that which ordinary prudence should have anticipated as likely to happen. What a person of ordinary prudence under the circumstances would have done is the legal test and not the exercise of hindsight or wisdom that is revealed after the event occurs. Fundamentally, the duty of a person to use care and his liability for negligence depend upon the tendency of his acts under the circumstances as they are known or should be known to him. The foundation of liability for negligence is knowledge,or what is deemed in law to be the same thing; opportunity by the exercise of reasonable diligence to acquire knowledgeof the peril which subsequently results in injury. 38 Am.Jur., Negligence, Sec. 23, p. 665.
In order to charge one with knowledge of the dangerous character of an act, the danger from said act must be such as is recognized by common experience or in the instant case by the experience of persons engaged in similar work. Stated in another way, it is the natural and probable consequences which human foresight could anticipate because they happen so frequently that they may be expected to happen again. 38 Am.Jur., Negligence, Sec. 61, p. 712. No one is required to guard against or to take measures to avert that which under the circumstances is not likely to happen. Davis v. Springfield Hospital, 204 Mo.App. 626, 218 S.W. 696.
Returning to the facts in this case and applying the aforesaid principles of law we find that it was the duty of plaintiff to prove that the defendant through its agents and servants was under a duty to foresee and anticipate the danger of plaintiff being struck from spewing asphalt when he maintained a distance of eight to ten stakes behind the pumping crew. The evidence in this case does not reveal any reason for defendant's foreman and other employees to anticipate that asphalt would spew out of the hole when the stake was removed when a distance of eight to ten *271 stakes behind the pumping crew was maintained.
Defendant's duty to warn plaintiff extended only to such dangers as defendant could reasonably anticipate. Defendant was not liable if there was a mere possibility of peril, there must be a probability of its occurrence. In the case of Fowler v. Gulf, Mobile & Ohio Railroad Co., Mo., 286 S.W.2d 404, loc. cit. 409, we said:
"The test to be applied is set out in a quotation in Hysell v. Swift & Co., supra, as follows, 78 Mo.App. [39], loc. cit. 50:
"`A reasonable man does not consult his imagination, but can be guided only by a reasonable estimate of probabilities. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what his reason and experience will enable him to forecast as probable, nor conduct on a basis of bare chances, a business whose success is dependent upon his accuracy in forecasting the fututre. He will order his precaution by the measure of what appears likely in the usual course of things.' Ray's Negligence of Imposed Duties, 133. Webb's Pollock on Torts, 45, says that, `a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all.'"
From this we see that it is the duty of defendant to anticipate danger and to measure its duty by what appears likely in the usual course of things. The evidence in this case shows that in the course of undersealing highways, usually there is no spewing of asphalt from the holes when the stakes are removed, if the person removing the stake stays behind the pumping crew eight to ten stakes. The evidence shows that Mr. Busch and Mr. Kuhnert had long experience in the work of undersealing highways. Mr. Busch testified that in his long experience he has seen asphalt blow out of the hole after the stake was removed on only two occasions and never in his experience was a man injured from this cause. Mr. Kuhnert testified that in his experience he knew of no instance when the asphalt spewed out of the hole when the stake was removed after maintaining a distance of 8 to 10 stakes behind the pumping crew although he was aware it was possible. This witness further stated that it was standard procedure in undersealing a highway for the crew removing the stakes to stay 8 to 10 stakes behind the pumping crew. He considered this a safe distance. It will be remembered that Busch and Kuhnert were witnesses for plaintiff. No other witnesses with experience testified in the case.
The negligence of the defendant in this case must be predicated on what ordinarily occurs when engaged in the job of undersealing highways and not on what may happen on rare occasions. In other words, the occurrence to be anticipated must be within the range of probabilities and not possibilities. Loehring v. Westlake Const. Co., supra; Davis v. Springfield Hospital, supra; Emrick v. City of Springfield, Mo.App., 110 S.W.2d 840.
The defendant in the instant case was not required to anticipate a mere possibility. The evidence in this case shows the occurrence that injured plaintiff happens on rare occasions and was not a usual and ordinary happening where the indicated distance is maintained. We cannot say there is sufficient evidence from which a jury could find that defendant could have reasonably foreseen the likelihood of the occurrence that injured plaintiff. The jury cannot draw on their own experiences because the occurrence involved is one that does not come within the ordinary experience *272 of persons. The jury must have evidence from persons experienced in the work of undersealing highways to the effect that the instructions given plaintiff were insufficient and that persons engaged in such work could reasonably anticipate the occurrence in question. No such evidence was adduced. To the contrary, there was evidence that the practice followed was standard procedure in connection with the undersealing of highways and the removal of stakes in connection therewith. The test of negligence under the circumstances was whether or not defendant observed the custom and practice of those engaged in a similar business. There was no proof that defendant failed to do so. No jury can be permitted to say that the usual and standard procedure followed by those in the same business is a failure to exercise care for which liability shall be imposed. Brands v. St. Louis Car Co., 213 Mo. 698, loc. cit. 708, 112 S.W. 511, loc. cit. 514; 18 L.R.A.,N.S., 701; 38 Am.Jur., Negligence, § 34, p. 682.
It is our judgment that the evidence in this case shows that defendant exercised the care exercised by others in the same kind of business on the giving of instructions to plaintiff's foreman as to the manner in which the stakes should be removed. There was no evidence from which the jury could find that the instructions given were insufficient and there was no evidence from which the jury could find that defendant could have reasonably anticipated the occurrence which injured plaintiff.
In our opinion there was no case for the jury. The judgment should be affirmed. It is so ordered.
ANDERSON, J., concurs.
MATTHES, J., sat in this case but is no longer member of this court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/467500/ | 786 F.2d 1386
33 Cont.Cas.Fed. (CCH) 74,340
UNITED STATES of America, Plaintiff/Appellant,v.LEMBKE CONSTRUCTION CO., INC. Defendant/Appellee.
No. 85-2137.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted March 11, 1985.Decided April 11, 1986.
Kenneth Oestricher, Dept. of Justice, Washington, D.C., for plaintiff/appellant.
Doug Shook, James R. Broening, Crampton, Woods, Broening & Oberg, Phoenix, Ariz., for defendant/appellee.
Appeal from the United States District Court for the District of Arizona.
Before SCHROEDER, CANBY and BOOCHEVER, Circuit Judges.
BOOCHEVER, Circuit Judge:
1
The United States appeals the district court's judgment in favor of Lembke Construction Co., Inc. claiming that certain defects in the roof were latent. The United States sued Lembke, its contractor for the construction of a school. The district court concluded that (1) the defects were not latent, (2) the U.S. had accepted Lembke's performance on the contract knowing of roof problems, and (3) Lembke did not breach the contract. At issue is whether the district court erred in rejecting an expert's opinion as a basis for concluding that a defect is latent, when the opinion is based on evidence known prior to acceptance of the building.
I. FACTS
2
On October 30, 1974, the United States, through the Bureau of Indian Affairs (BIA), and Lembke entered into the contract for constructing an addition to the Santa Rosa School. Lembke started construction in December 1974, and subsequently completed the building in December 1975. Final inspection of the addition was performed on January 6-9, 1976, and the school was turned over to the BIA for beneficial occupancy on February 25, 1976.
3
The design of the addition, prepared by architects Chopas, Starkovich and Associates, called for the construction of a two-way-post-tension flat roof over the classroom area. This low roof consisted of several thirty-foot concrete spans supported by columns.
4
Soon after the addition was completed, Lembke received complaints of leaks, cracks, and deflections (sagging) in the roof. In April 1977, Lembke hired the firm of MacCornack & Burns to investigate the leaking and deflection problems. MacCornack & Burns concluded that the leaking and deflection problems were caused by excessive concrete creep or improper post-tensioning. The BIA was informed of MacCornack & Burns' conclusions.
5
On August 10, 1977, the government hired Portland Cement Association (PCA) to study the integrity and safety of the roof. On August 29, 1977, PCA issued a preliminary report indicating that the roof was structurally sound. PCA engineers visited the school several times between 1977 and 1979. Cracks and deflections in the roof were measured and compared in November 1977 and January 1978. In March 1979, PCA issued its final report concluding that the roof was structurally sound.
6
In the meantime, on December 28, 1978, the government wrote to Lembke advising that it had finally accepted the building and that final acceptance was to be effective as of July 13, 1977.
7
In June 1980, the government hired the engineering firm of Stearns-Roger Limited (Stearns-Roger) to perform an analysis of the roof structure of the school. Stearns-Roger issued a report in July 1980, concluding that the addition to the school lacked an adequate margin of safety. The BIA subsequently closed the school.
8
Stearns-Roger then suggested four options for repairing the roof: (1) restressing the tendons; (2) placing a steel superstructure on the present roof; (3) replacing the existing roof; or (4) rebuilding the entire school. The BIA chose the second option. The steel superstructure was placed on the roof in early 1982 at a cost of $681,000. Neither Lembke nor PCA was advised of the repairs or of Stearns-Roger's conclusion that the roof was unsafe.
9
The construction contract between the BIA and Lembke provides that: "Acceptance shall be final and conclusive except as regards latent defects, fraud, or such gross mistakes as may amount to fraud, or as regards the Government's rights under any warranty or guarantee." The government's sole contention is that defects in the roof were latent. The alleged defect is the inadequate margin of safety in the roof discovered by Stearns-Roger after final acceptance. The government argues that the defect was caused by construction error. Because we conclude that the district court did not err in not finding a latent defect, we need not reach the issue of whether the defect was caused by design or construction error.
II. STANDARD OF REVIEW
10
The district court applied the proper test that a latent defect is "one which cannot be discovered by observation or inspection made with ordinary care." Kaminer Construction Corp. v. United States, 488 F.2d 980, 984, 203 Ct.Cl. 182 (1973). The district court determined that the defects described by Stearns-Roger were not latent, and further, that the defects were caused by design deficiencies rather than construction error.
11
To determine whether a defect is latent first requires determining the proper legal definition of the term. As indicated above, there is no dispute in this case as to that definition. The historical facts must then be applied to that definition. Because the nature of the inquiry required when applying the relevant rule of law to the facts is essentially factual, a determination of latency is treated as factual. Kaminar Construction Corp., 488 F.2d at 985 (the determination of whether something constitutes a latent defect is a factual determination); Burton-Dixie Corp. v. Timothy McCarthy Construction Co., 436 F.2d 405, 411 (5th Cir.1971) (the case of a defective condition is a question of fact). United States v. McConney, 728 F.2d 1195, 1204 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Thus, we review for clear error the district court's decisions that the defect discovered by Stearns-Roger is not latent.
III. ANALYSIS
12
The district court found that the government was fully aware of leaks, cracks, and deflections in the roof soon after the building was completed. Further, the court considered that the firms of MacCornack & Burns and PCA informed the government that the leaking and deflection were caused by excessive concrete creep or improper post-tensioning. Both firms concluded the roof was structurally sound. The government concedes it was aware of both reports before accepting the building.
13
After acceptance, Stearns-Roger issued a report that the building was not safe. Although there is some conflict in the testimony, the physical evidence relied on by Stearns-Roger was either based on measurements taken by PCA or measurements substantially the same as those known to the government prior to final acceptance. The government concedes that Stearns-Roger was unable to make new measurements because the roof had been covered with a protective membrane. The only new evidence was uncovered when the building was torn apart to make repairs. This evidence was not materially different from that previously known. After careful consideration of the evidence, the district court concluded that the government failed to present sufficient evidence to prove that any defects in the building were latent. "All of the physical evidence relied on by Stearns-Roger was in BIA files before [acceptance] or could have been 'discovered by observation or inspection made with reasonable care.' "
14
The government, however, asserts that the district court erred as a matter of law in failing to recognize that a defect can be latent when its extent or significance is unknown. As Lembke points out, a government expert admitted that the structural problems documented by PCA before final acceptance should have put the government on notice that the school was suffering abnormal structural problems. The district court explained that
15
the government had notice of the problems with the roof. There were a limited number of construction and design errors which could have caused the roof to crack, leak, and deflect, and the government knew what the possible errors were. These same errors are ones which could cause a roof to be unsafe. The only thing that changed after [acceptance] was that Stearns-Roger considered the cracks, leaks, and deflections, considered the possible causes of those problems, and concluded that in its opinion the roof lacked an adequate margin of safety.
16
Thus, the government's argument that it did not know the extent of the defect is not persuasive. It appears more likely that, after two consultants found the roof safe, the government found a third who concluded it was not safe. The condition of the building did not change significantly; only opinion as to whether it had an adequate margin of safety changed. A change in conclusion, where no new evidence has been considered, does not create a latent defect. The government has not met its burden of proving that the district court committed clear error.
IV. CONCLUSION
17
Although the government may or may not have received what it bargained for in its contract with Lembke, the government after refusing acceptance of the building for three years, and after receiving the advice of several consultants, finally accepted the building. We affirm the district court because, on the record before us, the district court did not clearly err in finding that the defects in the roof were not latent.
18
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2436709/ | 750 S.W.2d 681 (1988)
Martin R. KREITZ, Plaintiff-Appellant,
v.
Janet A. KREITZ, Defendant-Respondent.
No. 52440.
Missouri Court of Appeals, Eastern District, Division Two.
May 10, 1988.
*682 Charles A. Harter, Hillsboro, for plaintiff-appellant.
David J. Barton, Arnold, for defendant-respondent.
PUDLOWSKI, Judge.
This appeal by the husband, Martin Raymond Kreitz, arises out of the entry of a decree of the Circuit Court of Jefferson County which dissolved his marriage of more than seventeen years to Janet Ann Kreitz. Husband asserts eleven points of error. We affirm in part, reverse in part and remand.
The parties were married on December 13, 1968. Three children were born of the marriage: Bryan David, born August 6, 1969; Jennifer Leigh, born March 5, 1973; and James Eric, born October 22, 1978. Husband is a general building contractor who had operated a business out of his home for about five years before the parties separated. The wife had not been employed for about thirteen years, but after the separation, she resumed her career as a registered nurse.
On September 27, 1985, wife was granted an ex parte order of protection under the Adult Abuse Act, Sections 455.010-.085, *683 RSMo 1986, which barred the husband from the marital home. After the wife informed him of the order, husband drove his truck through the brick garage wall in a fit of rage. Extensive damage to the garage and its contents resulted. In addition, he smashed the windows in the house, the glass in the doors, two skylights and some furniture. He also chopped two holes in the roof with an axe. No one was home during this destructive episode.
Husband estimated the damage to the home at $2,000. Wife estimated the damage at approximately $9,000. She had been unable to complete all the repairs, but had spent $1,500 to $2,000 on materials for the repairs that had been completed by friends and relatives for her.
Husband filed for divorce on October 2, 1985. In addition, he requested that the ex parte order be dismissed. After a hearing, the court entered a permanent order enjoining husband from entering the marital dwelling except for the basement and garage areas between the hours of 8:00 a.m. to 12:00 p.m., Monday through Friday, so that husband could have access to his business supplies and equipment. The order concluded: "This order is to remain in force until further [order] of the court." Neither party was pleased with this arrangement.
On January 27, 1986, after a hearing on pending motions, the dissolution court entered an order pendente lite against husband which directed that the husband "will have two weeks to remove the remainder of his construction equipment from the premises now occupied by his wife...." The order also stated: "[c]hildren shall spend times of visitation under the same arrangements as they are presently visiting with [husband]...." Wife contends that this consisted of meeting for the transfer at a car-wash, but husband denies that he agreed to this procedure.
When the husband returned the youngest son to the marital home after a period of temporary custody on June 30, 1986, a disagreement erupted between the husband and his elder son and a sheriff's deputy was called to the home. Husband and the deputy entered the house and the husband removed several items that he claimed were property of his business. The wife was not home at this time.
The following day, the wife requested a temporary restraining order. As a result, the court heard the arguments of counsel on July 11, 1986. The court allowed no evidence, declared that "these people are pathetic, absolutely pathetic" and ordered husband "to stay off the property."
The husband contends that the wife interfered with his business during the period of separation by obstructing his efforts to remove his tools and a trailer from the property. He also claims that she impeded his efforts to contact, visit or take temporary custody of their children.
The wife accused the husband of removing items from the home which she needed to cut firewood for heat and to maintain the property, of having the electricity turned off and the phone disconnected, of failing to pay child support and family bills and of ignoring the children and complicating visitation.
Both husband and wife testified that husband's income before the separation was approximately $800 per month. An unspecified amount of additional remuneration may have been received in the form of barter. Husband testified that the separation caused difficulty in conducting his business and had, therefore, reduced his income to approximately $150 per month. His monthly expenses were approximately $1,290.
After the separation, the wife estimated her monthly income from her nursing position at a local hospital at $1,500 and her monthly expenses at $1,142. However, she also testified that she earned $952 every two weeks and that she made $9.42 per hour plus $1.75 per hour shift differential which would result in earnings of $1,921 per month.
After two days of testimony, the trial concluded with the court's announcement:
Gentlemen, on the record, this matter's going to be taken as submitted. You are going to supply this Court with a suggested *684 decree, each of you, in a final form that you are going to defend before the Court of Appeals.
You will do that ten days from today, jointly. I don't want your briefs; I don't want your briefs. I want a suggested decree outlining in minutia, all the things that you have put in the record about the push broom and nuts and bolts and whatever else.
You will supply that to me ten days from today, jointly.
The suggested decrees were timely submitted. On October 17, 1986, the court signed the proposed decree submitted by wife's counsel. Husband moved for a new trial or in the alternative to correct the decree, but the court overruled the motion. The Decree of Dissolution awarded custody of the children, the marital residence and its contents to the wife. In addition, she received a 1977 Scout, the property in her possession and several guns that were in the possession of the sheriff's department.
Husband was awarded the business and personal property in his possession, a $2,227.86 I.R.A. account, two vehicles, a boat and a trailer on the marital property if he removed it within sixty days. He was ordered to pay some family debts including outstanding medical bills, the Visa and Mastercharge debts and the wife's attorney's fees of $1,200. A judgment was entered against husband in the amount of $1,710 for unpaid child support, and he was ordered to continue to pay $90 per week child support. During the separation, the wife had paid $2,180 of the indebtedness on the marital residence to avoid foreclosure. The remaining $13,000 debt was assigned to the wife.
The decree enjoined the husband from entering upon the marital premises at any time except to remove the trailer. It also required him to return several items in his possession to the wife and to maintain the same health insurance for the children as he had prior to the separation.
In a bench tried case, the decree of the trial court will be sustained unless no substantial evidence supports it, it is against the weight of the evidence or it erroneously declares or erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
Husband first contends that the trial court abused its discretion when it adopted in its entirety the proposed decree submitted by the wife's counsel. We have previously observed that the adoption in its entirety of a decree of dissolution proposed by one of the parties is not per se erroneous. Ederle v. Ederle, 741 S.W.2d 883, 884-85 (Mo.App.1987); Binkley v. Binkley, 725 S.W.2d 910, 911 (Mo.App.1987). While the procedure does not result in a presumption of error, it is not wise to make a practice of accepting an advocate's proposed decree in a contested case. Binkley, 725 S.W.2d at 911, n. 2. In this case, the decree adopted by the court is deficient in several respects. Moreover, it lacks the necessary judicial consideration and polish.[1] The trial court shirks its responsibility when it imposes upon this court the necessity of reviewing in minute detail the parties' proposed decrees. We must reverse portions of this decree which were erroneously entered as a result of the practice.
Husband's second and third point are closely related. He urges this court to find that the trial court erred because it made no finding as to the marital or non-marital nature of the property of the parties and that the court erred in classifying certain property as marital. The trial court found that all the property of the parties was marital in nature. This includes the business known as Martin Kreitz and Associates and the property and equipment used in the business. This decision is correct because the parties organized and financed the new business after they had been married for a substantial number of years. Thus, this case is clearly distinguishable from the cases husband relies on such as *685 Carter v. Carter, 616 S.W.2d 543 (Mo.App. 1981).
The trial court, however, did err in awarding the wife a .22 caliber Colt rifle. It was undisputed that the rifle was the husband's separate property. He had purchased it as a young man before the marriage. Generally, property acquired before the marriage which remains titled in the original owner is separate property unless the record shows the owner's intent to change the property's status to marital property. Boyce v. Boyce, 694 S.W.2d 288, 290 (Mo.App.1985). There was no evidence offered that the rifle was anything other than the husband's separate property. It should, therefore, be set apart as his separate property in the decree.
Husband's fourth assertion of error maintains that the trial court awarded the wife an unjust share of the marital property. The law does not require an equal division of marital property; it requires that the distribution be fair. Daniels v. Daniels, 557 S.W.2d 702, 705 (Mo. App.1977). This is a matter that rests in the sound discretion of the trial court. Id. This is particularly true when a party has engaged in marital misconduct. In re Marriage of Witzel, 727 S.W.2d 214, 217 (Mo. App.1987). The wife received the marital residence; the equity in the residence was found to be worth approximately $16,000. The desirability of awarding the family home or the right to live therein to the spouse having custody of the children is a factor to be considered in dividing marital property. Section 452.330, RSMo 1986; Daniels v. Daniels, 675 S.W.2d 29, 34 (Mo. App.1984). The husband's misconduct in this case was the significant intentional damage done to the marital residence, the repair of which became the wife's responsibility. This is a factor that the trial court should properly consider. Husband and wife otherwise received a fairly equal amount of property, but husband's property is income producing, whereas the personal property awarded to the wife was basically household goods.
Moreover, there is no evidence that the trial court considered only the misconduct of the husband in the distribution of the property. The fact that the wife's current income is twice what her husband earned prior to the separation is not dispositive. Furthermore, the testimony of the husband with regard to a decrease in income from $800 to $150 per month did not necessarily have to be believed by the trial court. We find that there was no inequity in the division of property in this case.
We have reviewed husband's fifth allegation of error and find it to be without merit. The permanent injunction included in the dissolution decree is not vague, overbroad or harsh considering the circumstances. The court enjoined the husband from "entering upon the premises at any time." There can be no doubt as to the court's meaning. On the same day that the wife filed her Cross-Petition for Dissolution, she filed a motion requesting an injunction; therefore, the husband's argument that the trial court exceeded the relief requested is patently frivolous. Furthermore, husband's contention that the court violated Rule 92.02(c) when it did not require the wife to execute a bond is equally without merit. Rule 92.02(c) reads: "No injunction or temporary restraining order, unless on final hearing or judgment, shall issue ... until the plaintiff ... shall have executed a bond...." The permanent injunction of which husband complains was incorporated in a final decree of dissolution. This point is denied.
Husband's sixth and seventh points relate to the trial court's protective orders. Counsel for the husband concedes in his brief that these issues are moot. Both orders have expired and were replaced by a valid permanent injunction. We agree that these points are moot; therefore, we deny points six and seven.
Husband's eighth point contends that the trial court erred in limiting his visitation and temporary custody of his children. We agree. The decree reads:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Respondent, JANET ANN KREITZ, is awarded the primary custody of the three (3) minor *686 children, BRYAN DAVID KREITZ, JENNIFER LEIGH KREITZ, and JAMES ERIC KREITZ. Petitioner is awarded reasonable rights of visitation and temporary custody as arranged to by the minor children, BRYAN DAVID KREITZ, JENNIFER LEIGH KREITZ and JAMES ERIC KREITZ. If agreed to by JAMES ERIC KREITZ, Petitioner may exercise temporary custody of JAMES ERIC KREITZ on alternate week-ends from Friday at 6:00 P.M. to coincide with the week-ends that Respondent works. Respondent and Petitioner are to deliver and pick up JAMES ERIC KREITZ at the appointed times for temporary custody at the TURTLE WAX CAR WASH.
This indefinite approach to visitation was rejected by this court in McFadden v. McFadden, 509 S.W.2d 795 (Mo.App.1974). In McFadden, we stated:
We note that the time and location of temporary custody of the two oldest children by plaintiff is to be determined by the children themselves. We believe it is unwise to accord children the authority and power to determine when they are to be placed in the temporary custody of the other parent who does not have their permanent custody. Obviously this is a matter which should be determined by the parents themselves under a plan fixed by the court.
Id. at 800.
None of the children testified during the dissolution proceedings in this case. We do not intend to imply that the children's wishes are irrelevant to the determination of temporary custody and visitation; however, their views were not before the court. Even if the court had the testimony of the children before him, that testimony is to be used in determining a reasonable schedule for the father to have access to his children. The decree entered in this case does not provide certain and reasonable rights of visitation. Where husband was not found to be an unfit parent, the trial court should encourage a continued relationship between the divorced parent and child by ensuring that the parent has a right to reasonable access to the child. Leimer v. Leimer, 715 S.W.2d 310, 313 (Mo.App. 1986).
Husband in his ninth point asserts that the trial court erred in awarding attorney's fees and costs to the wife because the court failed to consider the financial resources of the parties and because the wife failed to show that she could not afford her attorney's fees. section 452.355, RSMo 1986, begins: "The court from time to time after considering all relevant factors including the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party ... for attorney's fees ...." Although the husband's misconduct in this case was a factor, it was an abuse of discretion for the trial court to order the husband to pay the wife's attorney's fees in light of the fact that her monthly income was more than twice that of the husband and exceeded her monthly living expenses. See Weiss v. Weiss, 702 S.W.2d 948, 957 (Mo.App.1986).
Husband's two final points on appeal were not briefed or argued before this court. Where a point of error is not developed in the argument portion of a brief, it is not properly presented for review. Giessow v. Litz, 558 S.W.2d 742 (Mo.App.1977).
Considering the errors we have previously detailed, we remand this case to the trial court to fashion a decree consistent with our opinion.
STEPHAN, P.J., and DOWD, J., concur.
NOTES
[1] We are aware of the trial court's frustration with the parties and their attorneys because this court has experienced the same sensation. The briefs and arguments of both parties were so inadequate that they were of minimal use to this court in the consideration of this appeal. Nevertheless, the legal issues of this case deserve judicial consideration. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2436694/ | 750 S.W.2d 732 (1988)
Clara SPRUILL, Plaintiff-Appellant,
v.
BARNES HOSPITAL, et al., Defendant-Respondent.
No. 53367.
Missouri Court of Appeals, Eastern District, Division Three.
May 31, 1988.
Susan Hais, Clayton, for plaintiff-appellant.
Shepherd, Sandberg & Phoenix, Paul N. Venker, St. Louis, for defendant-respondent.
KAROHL, Presiding Judge.
The substantive issue in this case is whether the court erred in dismissing plaintiff's *733 petition as a claim for medical malpractice barred by the two year statute of limitations. Section 516.105 RSMo 1978. Plaintiff sued Barnes Hospital and others who rendered medical services to plaintiff on August 29, 1980. She alleged in the petition that they performed a laproscopic fulgration on that day rather than a tubal ligation, as the parties had agreed. She contends that the claim is a suit for breach of a February 8, 1980 contract to render certain medical services limited by Section 516.120 RSMo 1978, a five-year statute of limitations.
The original petition was filed on August 27,1982. Subsequently, a second and third amended petition were filed. On March 10, 1986, plaintiff voluntarily dismissed her third amended petition without prejudice. On March 12, 1987, a Thursday, plaintiff refiled her petition for damages. The second filing occurred more than two years after the medical services were rendered and more than one year after the voluntary dismissal. On May 7, 1987, the trial court sustained motions to dismiss filed by defendants on the basis of Section 516.105 RSMo 1978. Section 516.105 RSMo 1978 provides that all actions against physicians, hospitals, and other entities providing health care services acting in the course and scope of their employment, for damages for malpractice, negligence, error or mistake relating to health care shall be brought within two years of the act or neglect complained of.
The Supreme Court considered a similar malpractice versus contract issue in Barnhoff v. Aldridge, 327 Mo. 767, 38 S.W.2d 1029 (Mo.1931). In that case a patient attempted a contract suit against the doctor. The patient alleged the doctor agreed to perform gall bladder surgery, but caused injury to plaintiff's back under pretense of lifting one of plaintiff's kidneys. The court found that although plaintiff attempted a contract action, the "gist of the action" was the doctor's wrongful act. Id. at 1030. It held:
The improper performance by a physician or surgeon of the duties devolved and incumbent upon him and the services undertaken by him, whether same be said to be under a contractual relationship with the patient arising out of either an express or implied contract or the obligation imposed by law under a consensual relationship, whereby the patient is injured in body and health, is malpractice, and any action for damages, regardless of the form thereof, based upon such improper act, comes within the inhibition of the two-year statute of limitation. (Emphasis ours.)
Id. at 1031. Although styled a petition in contract plaintiff's claim is a malpractice claim which the trial court properly ruled is barred under Section 516.105 RSMo 1978 and Section 516.230 RSMo 1978.
We affirm.
SMITH, and KELLY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1120345/ | 186 Kan. 605 (1960)
352 P.2d 29
ROBERTO BARIUAN, Appellee,
v.
NORMA BARIUAN, Appellant.
No. 41,782
Supreme Court of Kansas.
Opinion filed May 14, 1960.
*606 Norma Bariuan, of Manilla, Republic of the Philippines, was on the briefs for the appellant, pro se.
T.L. O'Hara, of Wichita, argued the cause, and was on the briefs for the appellee.
The opinion of the court was delivered by
JACKSON, J.:
The above named appellee sued the appellant-defendant in the court below for divorce, and obtained service by publication upon the defendant residing in Manila, in the Philippine Islands.
The plaintiff's petition alleged that the parties were married in Manila on March 27, 1954, and had been since that time and were now husband and wife; that defendant had been guilty of extreme cruelty and gross neglect of duty toward the plaintiff; "that one child has been born of this marriage, Roberto Bariuan, four years of age."
Although the abstract filed by the defendant in this appeal without the aid of named counsel fails to show the verification of the above petition by the plaintiff himself, it may be conclusively presumed that the petition was so verified since the code of civil procedure absolutely requires such verification (G.S. 1949, 60-1504).
Within due time, defendant filed her answer, apparently without aid of counsel, in which she admitted the marriage of the parties and the birth of their son as alleged in the plaintiff's petition; she further denied that she had ever been guilty of cruelty or neglect of duty toward plaintiff, and further that plaintiff had left the Philippines some two months after the marriage and at a time when defendant was pregnant with plaintiff's child. Defendant further alleged that she was entirely dependent upon a Class C allotment which defendant received from the American Air Force for maintenance and support of defendant and the child; that plaintiff had in fact sought money from defendant on the pretext that he was planning to bring defendant and their child to the United States; that on the contrary, plaintiff was preparing to file the within divorce suit for the purpose of stopping the Air Force allotment and denying the defendant and the child the support thereof. Defendant does not ask for a divorce, but closes the answer by alleging that she has at all times remained faithful to the plaintiff as his wife, and by noting that Philippine law does not recognize absolute divorce.
At some time unknown the abstract states the filing date to be *607 unavailable a motion by the husband was filed seeking an order instructing the wife to state the date of the birth of the child. It was urged that such date would show that the child was not the child of the plaintiff. This motion is not shown to have been brought to the attention of the trial court or to have been acted upon by the court. Good reasons for overruling the motion or striking it from the files come to mind. Nevertheless, the wife, still being without counsel, filed a response to the motion pro se. The response, as evidently was desired by plaintiff, may be treated as an amendment of defendant's answer. The response alleged the date of the child's birth to have been well within the period of gestation dating from the time plaintiff's departure from Manila. It was again alleged in no uncertain terms that the child was the son of the plaintiff. In addition to the above, certain exhibits were attached which were in the form of copies of letters from plaintiff to defendant. In these letters, plaintiff readily and without reservation admitted the parenthood of the child, and made other admissions against interest in relation to the present suit.
The plaintiff has never challenged the accuracy of the wife's abstract of the record in this appeal. It must be remembered that plaintiff's verified petition alleging his own parenthood of the child was still on file in the case and constituted his only pleading therein. This court has pointed out that a motion does not constitute a pleading (Achenbach v. Baker, 157 Kan. 292, p. 295, 139 P.2d 407).
On May 5, 1959, notice for a hearing of the case on the petition therein was mailed to defendant wife, setting the trial for June 16, 1959. On May 21, 1959, the wife filed "an urgent motion to dismiss" alleging the wife's inability to be present at the trial, and further the inability of the court to do justice in the matter without the defendant being present to defend the case. No action by the trial court appears to have been taken upon this motion.
The trial is shown to have taken place on June 16, 1959, as provided in the above notice. The abstract contains the statement that plaintiff is unable to obtain a transcript of the testimony introduced at the trial because, in the words of the trial judge, "no record was taken since the taking of a record was waived at the time of the divorce proceeding."
From the abstract we copy the portions of the Journal Entry of the judgment shown:
*608 "Whereupon, the plaintiff introduced his testimony which was duly corroborated according to law, and rested, and the court finds that the plaintiff should be granted the relief prayed for in his petition.
"IT IS FURTHER BY THE COURT CONSIDERED, ORDERED, AND ADJUDGED AN DECREED that the child born of the marriage, to wit: Roberto Bariuan, age years, is not the child of the plaintiff herein."
At the time of oral argument of this appeal, appellee's counsel informed this court that the above Journal Entry had not been signed by the trial judge who heard the evidence, but in his absence had been signed for him by the presiding judge of the district court
After considering the above record which has been rather completely summarized, the court feels that we should speak quite plainly. In our opinion, the above judgment is absolutely void on its face.
It is elementary that the pleadings in an action must support the judgment rendered, and a failure to do so renders the judgment a nullity and void. The decree purporting to bastardize the child born in wedlock is contrary to both the verified allegations of the plaintiff's own petition and the defendant's answer. Moreover, we direct attention to the ambiguous wording of that part of the above journal entry: "That the child born of the marriage ... is not the child of the plaintiff herein." We shall not speculate as to whether this ambiguity could have been intentional.
As to the finding relative to the grounds for divorce, the grounds which were found are not stated. From other parts of the journal entry of judgment it could be reasonably inferred that either the First or Fifth grounds for divorce specified in G.S. 1949, 60-1501 had been attempted to be proved. Nowhere in plaintiff's petition are to be found any indication of such charges.
Moreover, if the pleadings as a whole be considered, as they must be, it is readily apparent that defendant wife had alleged affirmative defenses against plaintiff's cause of action for divorce which had not been denied or avoided in any manner and were therefore admitted.
As early as the case of Gille v. Emmons, 58 Kan. 118, 48 P. 569, this court said:
"A judgment entirely outside the issues in the case and upon a matter not submitted to the court for its determination, is a nullity; and may be vacated and set aside at any time upon motion of the defendant." (Syl. ¶ 1.)
Like holdings have been made in Spaeth v. Kouns, 95 Kan. 320, 148 P. 651; Custer v. Royse, 110 Kan. 397, Syl. § 3, 204 P. 995; Southern Kan. Stage Lines v. Webb, 141 Kan. 476, 41 P.2d 1025; *609 Old People's Home v. Miltner, 149 Kan. 847, 89 P.2d 874; Penn Mutual Life Ins. Co. v. Tittel, 153 Kan. 530, Syl. § 4, 111 P.2d 1116; on rehearing, 153 Kan. 747, 114 P.2d 312; Liggett v. Liggett, 165 Kan. 527, p. 530, 195 P.2d 577.
Where a judgment is void, it may be set aside at any time (G.S. 1949, 60-3009).
This opinion should not be concluded without some comment upon the strong presumption of legitimacy as to a child born in lawful wedlock. In ancient times it is reported to have been the rule that even if the husband was beyond the seas, it would be presumed that in some manner he had made a flying trip to see his wife. At that time there were no airplanes. Later, the rule was modified to allow proof that the husband had had no opportunity for access to his wife during the time for conception. Even today, many jurisdictions still hold that the parents may not testify to facts which would bastardize children born in wedlock. The authorities in the various jurisdictions are collected upon the various facets of this presumption in the following annotations in 60 A.L.R. 380, 68 A.L.R. 421, 89 A.L.R. 911, 128 A.L.R. 713, and 53 A.L.R. 2d 572. Attention may be directed to 10 C.J.S. 15, § 3. This court labored mightly before deciding that a mother might testify that her child was not the child of her husband, see the opinions written in the case of Stillie v. Stillie, 115 Kan. 420, 223 P. 281, 119 Kan. 816, rehearing 120 Kan. 565, 244 P. 844; 121 Kan. 591, 249 P. 672; and see further Lynch v. Rosenberger, 121 Kan. 601, 249 P. 682. Further citations dealing with the presumption will be found in the opinions in Sharp v. Losee, 109 Kan. 211, Syl. § 12, 199 P. 94; and the late case of In re Estate of Julian, 184 Kan. 94, p. 98, 334 P.2d 432.
In none of the cases collected above will be found a situation where a father dared to try to prove that his child born during his marriage to the mother was not his child in the face of his own verified allegation of his own parenthood and the vehement verified allegations of the mother to the same effect. Under the pleadings there is no question that the parties were living together when the child was conceived. It is so stated and is not denied.
Other questions are raised in the briefs of the parties, but the apparent invalidity of the judgment appealed from makes it unnecessary to discuss them in this opinion.
This court would recommended to the district court that should any further proceedings be had in this action for divorce or if a new *610 action be instigated, then the district court should appoint immediately a guardian ad litem to protect the interests of the infant child in this case. This suggestion is made without any consideration of the question of the jurisdiction of the court to bastardize an infant alien friend who is domiciled many thousand miles from the location of the court room based upon such personal jurisdiction as the court may have acquired by the uncounselled appearance of the mother by the filing of an answer in the case by air mail. This question has not been briefed by either party to this appeal. Furthermore, since the mother and child are presumed to be citizens of a friendly and allied power, The Republic of the Philippines, we would think the court would be justified in case of any further proceedings in this matter to ask the Sedgwick County Bar Association to appoint counsel to aid the mother in the case, at the cost of the father, as a proper instance of legal aid. The counsel appointed or the guardian ad litem might well notify the nearest Philippine counsel's office or the embassy of the Republic of the Philippines in Washington, D.C. The Republic may well be interested in protecting the rights of its citizens.
The void judgment appealed from is reversed and the case remanded to the trial court for further proceedings in accord with the views expressed in this opinion.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1120346/ | 186 Kan. 628 (1960)
352 P.2d 51
HENRY PFANNENSTIEL, Appellee,
v.
THE CENTRAL KANSAS POWER COMPANY, a Corporation, Appellee; HUNTER CONSTRUCTION COMPANY, INC., a Corporation, Appellant; EUGENIA PFANNENSTIEL, Appellee.
No. 41,794
Supreme Court of Kansas.
Opinion filed May 14, 1960.
Norbert R. Dreiling, of Hays, argued the cause, and Paul H. Royer, Robert H. Royer and James E. Ahearn, all of Abilene, were with him on the briefs for appellant.
James P. Mize, of Salina, argued the cause, and C.L. Clark and T.M. Lillard, Jr., of Salina, were with him on the briefs for appellee Henry Pfannenstiel.
*629 The opinion of the court was delivered by
FATZER, J.:
This was an action to recover damages to the plaintiff's real and personal property resulting from a gas explosion in the basement of his house. To identify the defendants below, Hunter Construction Company, Inc., is referred to as Hunter; The Central Kansas Power Company is referred to as the power company, and Eugenia Pfannenstiel is referred to as Eugenia.
The appeal is from the district court's order of September 1, 1959, overruling the appellant Hunter's motion to dismiss the action; to strike the answer of Eugenia and to dismiss her as a party defendant; to strike the first amended petition from the files, and the overruling of Hunter's demurrer to the first amended petition. Neither the power company nor Eugenia has appealed.
The sole plaintiff is the appellee Henry Pfannenstiel. His petition was filed September 30, 1958, and is briefly summarized: The plaintiff's residence property is located at the southeast corner of the intersection of East 15th Street and Dechant Road in Hays, Kansas. East 15th Street runs east and west past the north side of the residence and Dechant Road runs north and south past the west side of the residence. A public alley runs east and west along the south side of the residence and intersects Dechant Road at a right angle at the southwest corner of the plaintiff's residence.
Joint and concurrent acts of negligence proximately causing the explosion were charged against Hunter and the power company. Only those affecting Hunter are referred to: During 1956 Hunter entered into a contract with the city of Hays and undertook the work of excavating for, and curbing, guttering and surfacing a portion of Dechant Road along and beyond its intersection with the alley adjacent to and south of the residence property in question. In doing the work, a piece of Hunter's heavy, power-driven earth moving equipment struck, bent and damaged one of the pipes and tubes owned by the power company and buried below the surface of the street and alley and used by the power company to distribute natural gas in the city pursuant to a franchise therefor. In performing the work, Hunter negligently failed, not only to ascertain and determine the presence and location of the pipes and tubes, but also failed to make sure that the street and alley right of way was *630 clear of obstructions before it attempted to perform the construction work, and also failed and neglected to notify the power company that the pipe and tube had been bent and damaged.
The petition further alleged that on the morning of June 15, 1957, the plaintiff's brother, not knowing of the joint and concurrent negligence of the defendants or of the presence of the explosive quantity of escaped natural gas, switched on an electric light in the basement and an explosion occurred, damaging the residence property to such an extent it could not be fully repaired; killed eleven chinchillas and injured others owned by the plaintiff; damaged plaintiff's automobile, and killed and damaged numerous trees and shrubs upon plaintiff's property and deprived him of the use of his residence for an extended period of time, causing plaintiff to suffer loss and damage in the amount of $11,565.
Hunter moved to make the petition definite and certain in several particulars: One required the plaintiff to specifically state the amount and nature of damage claimed to the residence property, the chinchillas, the automobile, the trees and shrubs, and the loss of use of the residence; another sought to require him to attach a copy of the written paving contract entered into between Hunter and the city of Hays for the public improvement and to attach engineers' drawings and specifications of that improvement, and another was to require the plaintiff to set forth the type of material, size and location of the pipe or tube Hunter allegedly struck and bent and to designate which pipe at the location in question was allegedly struck and bent. No part of the motion was directed to plaintiff's allegations of negligence on the part of Hunter nor did it seek in any manner to have those allegations made more definite and certain with respect to Hunter's negligence.
On December 11, 1958, the district court sustained in part the defendant's motion to make definite and certain, and in compliance with the court's order the plaintiff filed what he designated "Amendment to Petition" alleging that the pipe and tube struck and bent was a steel pipe approximately two inches in diameter installed in an east-west direction in the alley near the southwest corner of plaintiff's property where the alley intersects Dechant Road, and further, that the gas pipe was in the possession of the power company. In addition, the plaintiff itemized his damages and the amount was increased from $11,565 to $20,024. Otherwise, the motion to make definite and certain was overruled.
*631 On March 13, 1959, Hunter filed its verified answer and while that pleading is not abstracted, we are advised that Hunter did not plead in its answer either the ordinance of the city of Hays, the power company's franchise to distribute natural gas in the city, or Hunter's paving contract with the city, which were referred to in Hunter's motion to make the petition definite and certain.
On March 24, 1959, the power company filed its answer to plaintiff's original petition and the amendment and among other things alleged that the residence property in question was owned by the plaintiff and Eugenia, his wife, as tenants in common, and that Eugenia was a necessary party to the action and should be required to plead and set out her interests.
As a result of the special defense pleaded by the power company, plaintiff applied for authority to join Eugenia as an additional party defendant, and, without asking the district court to rule upon the power company's special defense, plaintiff prepared his first amended petition and his motion for leave to file an amended petition and served Hunter with copies thereof and notice that the same would be heard by the district court at its next regular motion day May 18, 1959. At that hearing Hunter appeared and made no objection whatsoever to the granting of the motion or the form of the first amended petition which was submitted to the district court with the motion for leave to file it, and plaintiff was granted leave to make Eugenia an additional party defendant. The first amended petition was filed May 18, 1959, and on the same day, without service of summons, Eugenia voluntarily filed her answer to that pleading, in which she admitted all of its allegations and prayed that the plaintiff be granted the relief sought.
With respect to the plaintiff's right to bring the action for the benefit of himself and Eugenia, the first amended petition alleged:
"... Plaintiff brings this action for and on behalf of himself and the said Eugenia Pfannenstiel to recover damages for their respective use and benefit as their interests may appear by reason of the negligence hereinafter more particularly described. For a full and complete determination of this action the said Eugenia Pfannenstiel is made a defendant herein."
In addition to making Eugenia a party defendant, the foregoing was the only amendment made by the first amended petition to the plaintiff's original petition and its amendment, and more particularly, it charged Hunter with the identical acts of negligence as those alleged in the original petition and its amendment. Neither *632 Hunter nor the power company filed a motion to make the first amended petition definite and certain in any respect.
On June 19, 1959, Hunter filed a motion and a demurrer to the first amended petition and sought, among other things, the following relief: (1) A dismissal of the action upon the ground that it was an attempted misjoinder of parties, (2) to strike Eugenia's answer from the files and to dismiss her as a party defendant for the reason that she was not a necessary or proper party to a final determination of the action or the relief sought and that she was not a real party in interest as to the entire subject matter of the action, (3) to strike the first amended petition from the files for various reasons, one of which alleged there was a misjoinder of parties resulting in such a confusion of theories that Hunter was unable to determine for whom the attempted causes of action were brought, or to whom or for whose benefit they applied, and (4) that plaintiff originally claimed total damages of $11,565 and when he itemized those damages in his "Amendment to Petition" he increased the total amount prayed for to $20,024, and Hunter requested he be again directed to itemize the damages in a total amount not to exceed $11,565. Hunter's demurrer was upon the ground that the first amended petition failed to allege facts sufficient to constitute a cause of action in favor of both the plaintiff and Eugenia and against the defendant, and that there was a misjoinder of cause of action with respect to the plaintiff and the alleged cause or causes of action of Eugenia.
On September 1, 1959, the district court overruled Hunter's motion and demurrer in their entirety, and Hunter perfected this appeal.
Hunter first argues that while the plaintiff sues for himself and his wife for their respective use and benefit, as their interests may appear, and that Eugenia was joined as a defendant for a full and complete determination of the action, there is in effect a misjoinder of causes of action. He asserts that because of the cotenancy status of the real estate, both the plaintiff and Eugenia must sue for damages to the residence property and the loss of its use, and that the first amended petition actually makes Eugenia a coplaintiff while at the same time keeping her a nominal party defendant; further, that the plaintiff claims additional damages for the loss of his own personal property and that nowhere is it alleged that Eugenia had an interest therein. The point is not well taken. *633 Although the proposition is not a rule of universal application in all jurisdictions, we think it is well settled under the law of this state that one cotenant may sue a third party stranger in tort to recover the entire amount of damages caused to the cotenancy realty by the stranger's tortious act. In King v. Hyatt, 51 Kan. 504, 32 P. 1105, this court said:
"While there is undoubtedly much conflict in the authorities, it is not so great as might appear from the language found in some of the cases. We think the rule quite well established, that one tenant in common may maintain an action of trespass against a mere wrongdoer and recover in his own name the whole damage, and generally that one cotenant may recover for any injury done by a mere trespasser or wrongdoer. Nor are we prepared to assert that cases may not arise in which one cotenant might recover possession of the whole property in his own name for the benefit of all. See Coulson v. Wing, 42 Kas. 507...." (l.c. 514.) (Emphasis supplied.)
See, also, Horner v. Ellis, 75 Kan. 675, 90 P. 275; Klingbeil v. Neubauer, 110 Kan. 253, 203 P. 731; Klingbeil v. Neubauer, 111 Kan. 716, 208 P. 255; Schwab v. Wyss, 136 Kan. 54, 57, 12 P.2d 719; Sinclair v. Missouri Pac. Rld. Co., 136 Kan. 764, 766, 18 P.2d 195; Nelson v. City of Osawatomie, 148 Kan. 118, 121, 79 P.2d 857; 14 Am. Jur., Cotenancy, 94, 95, 98, pp. 160, 163; 86 C.J.S. Tenancy in Common, 138, p. 542, and 80 A.L.R. 992.
The plaintiff does not here seek any affirmative relief against Eugenia. She was joined only after the district court granted plaintiff leave to file the first amended petition permitting such joinder "for a full and complete determination of the action." Admittedly, that petition states no cause of action against her. No one objected to such joinder except Hunter, and it made no objection until considerable time had elapsed after Eugenia had filed her answer. We see no reason why the plaintiff should not be permitted to recover the entire damage to the cotenancy realty, and, if successful, he would simply hold the part of such damage attributable to the interest of Eugenia in trust for her use and benefit. In the well-reasoned case of Bigelow v. Rising, 42 Vt. 678, it was said:
"It has long been settled in this state that one tenant in common can maintain ejectment against a stranger to the title, and recover the whole property and damages for the entire injury sustained by the eviction, and that recovery is for the benefit of himself and co-tenant.
"This being so, it is difficult to assign a satisfactory reason why one tenant in common may not maintain an action of trespass quare clausum, and recover for the whole damage occasioned by the trespass, for the benefit of himself *634 and co-tenant. There is nothing in the nature of the action, or the form of the proceeding, to prevent." (pp. 679, 680.) (Emphasis supplied.)
As applied to the instant case, the common sense of the rule of this court recognized in King v. Hyatt, supra, becomes at once apparent. It prevents an unnecessary multiplicity of actions and creates no obstacle to a clear disposition of the issues at the trial. By special questions or special verdicts the jury may simply be asked to state the amount of damages, if any, awarded for the cotenancy realty separately from damages awarded for the injury and destruction of the personalty. No prejudice to Hunter could possibly result by such procedure. Hence, we conclude that, under the facts and circumstances, the plaintiff may properly bring this action for the recovery of damages to the cotenancy realty for the use and benefit of himself and his wife as their interests may appear, and also for the injury and destruction of his personal property.
Hunter next contends there was a misjoinder of parties when Eugenia was made a party defendant. We think the conclusion just announced renders the contention unavailing. The plaintiff concedes Eugenia is not a necessary party defendant, hence, our inquiry is directed to the question whether she is a proper party.
As previously indicated, Eugenia was made a party defendant in the first amended petition for which leave was granted by the district court to file that pleading. Eugenia was thereby given the opportunity to object or take issue with plaintiff's allegations of title to the realty and to the personal property which was alleged to have been damaged or destroyed, but she took no issue. She was also given the opportunity to object or take issue with the plaintiff's right to sue for all of the damages alleged to have been inflicted to the cotenancy realty, but, again, she took no issue. And, lastly, her joinder as a party defendant makes perfectly sure that she will be personally bound by whatever judgment is ultimately rendered. Are any of those results prejudicial to Hunter? None has been suggested by Hunter, and we think there are none. On the contrary, Eugenia's being made a party defendant is beneficial to Hunter since she is a party for a full and complete determination of the action and will be bound by any judgment rendered. G.S. 1949, 60-411, reading as follows, would seem to authorize such permissive joinder:
"Any person may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete *635 determination or settlement of the question involved therein." (Emphasis supplied.)
Generally speaking, parties to an action are divided into three classes: Proper, necessary, and indispensable, and we think it may be said Eugenia was a proper party. The term proper party has been defined as a party without whom the cause might proceed but whose presence will allow a decree or judgment more clearly to settle the controversy among all the parties (67 C.J.S., Parties, f, (1), p. 889; 39 Am.Jur., Parties, 5, p. 853). In Rush v. Concrete Materials & Construction Co., 172 Kan. 70, 74, 238 P.2d 704, it was said:
"... Without extensive statement it may be said that a necessary party to an action is one who may have an interest in the subject matter of the suit and whose right may be materially affected or concluded by the judgment and therefore one without whom the court will not proceed, while a proper party is one who has an interest which is separable from the interest of the other parties, so that it may but will not necessarily be affected by the judgment which does complete justice between the other parties...." (l.c. 74.)
Neither the power company nor Eugenia here objects to her being made a party defendant. No decision of this court has been cited, and we know of none, construing the italicized language of G.S. 1949, 60-411 under the facts and circumstances disclosed. However in the case of City of New York Ins. Co. v. Tice, 159 Kan. 176, 186, 152 P.2d 836, it was held that in a tort action a party was properly joined as a defendant under the statute although the plaintiff prayed for no affirmative relief against such defendant. Assuming, arguendo, the joinder of Eugenia resulted in a misjoinder of an excessive party defendant, G.S. 1949, 60-3317 directs this court to disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining. In Gerson v. Hanson, 34 Kan. 590, 9 P. 230, it was said:
"... It is the true purpose and design of courts to administer justice between litigants and to ascertain and enforce their rights and obligations, as far as possible upon the merits, and not upon some technical point which puts no question at issue, but simply renders it necessary to commence a new suit. And so, within the spirit and language of the code, there are proper cases in which it is necessary to make a person defendant, upon the ground of avoiding a multiplicity of suits...." (l.c. 592, 593.)
The district court did not err in overruling Hunter's motion to dismiss the action, or to strike the first amended petition from the *636 files upon the ground of misjoinder of parties, or to strike Eugenia's answer from the files and dismiss her as a party defendant.
Hunter further asserts the district court erred in failing to require the plaintiff to itemize his damages in an amount not to exceed $11,565, the amount claimed in his original petition. It is unnecessary to detail the procedure heretofore set forth in this opinion that the amendment to plaintiff's original petition was a result of Hunter's motion to make definite and certain, all of which occurred prior to the time Hunter and the power company filed their answers. This court has construed the code of civil procedure (G.S. 1949, 60-756) as authorizing the plaintiff to amend his petition without leave at any time before the answer is filed without prejudice to the proceedings, with notice of the amendment being served upon the defendant or his attorney (Quinlan v. Danford, 28 Kan. 607; Bailey v. Norton, 178 Kan. 104, 107, 283 P.2d 400). See, also, Deal Lumber Co. v. Vieux, 179 Kan. 760, 298 P.2d 339.
The Amendment to Petition was made in compliance with Hunter's motion and we do not think it can now complain that in itemizing his damages in that pleading the plaintiff raised the total amount which he allegedly sustained. G.S. 1949, 60-2501 is applicable only where the action is on contract for the recovery of money and the amount sued for is endorsed on the summons. In that event, if the defendant fails to appear and answer judgment may not be rendered for a larger amount, with interest, and the costs. However, this was a tort action; but more important, Hunter appeared and requested the itemization of the damages sued for. Having done so, it may not now complain.
Hunter lastly contends the first amended petition failed to state facts sufficient to constitute a cause of action against it. We think the contention is not meritorious. In the first place, Hunter's motion to make definite and certain was not directed toward the plaintiff's allegations of negligence against it in the original petition, the "Amendment to Petition," or the first amended petition, and we think those pleadings alleged a cause of action against Hunter and in favor of the plaintiff. It is well established that general allegations of negligence or of contributory negligence in a petition or answer are sufficient as against a demurrer when not previously challenged by a motion to make definite and certain (Kirkland v. Railway Co., 104 Kan. 388, 179 P. 362; Munger v. Beiderwell, 155 Kan. 187, 124 P.2d 452; Kinderknecht v. Hensley, 160 Kan. 637, 164 P.2d 105).
*637 In addition Hunter complains it was error for the district court to overrule that portion of its motion to make definite and certain to compel the plaintiff to plead the terms of the power company's franchise with the city and Hunter's paving contract with the city. We do not agree. This action was not a suit on the franchise or the paving contract. It was based upon the negligent destruction of plaintiff's dwelling and the injury and damage to his personal property. Had Hunter desired to make the power company's franchise and its paving contract with the city a part of the records of this action it could have done so by pleading those instruments and attaching them to its answer.
We think the district court properly overruled Hunter's demurrer to the first amended petition. Other points have been raised and briefed by the parties, but in view of what has been said it is unnecessary to discuss and decide them.
Finding no error in the record, the judgment of the district court is affirmed.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2436753/ | 18 N.Y.3d 474 (2012)
964 N.E.2d 396
941 N.Y.S.2d 25
2012 NY Slip Op 1142
REGIONAL ECONOMIC COMMUNITY ACTION PROGRAM, INC., Appellant,
v.
ENLARGED CITY SCHOOL DISTRICT OF MIDDLETOWN, Respondent.
No. 10.
Court of Appeals of New York.
Argued January 4, 2012.
Decided February 16, 2012.
*475 James G. Sweeney, P.C., Goshen (James G. Sweeney of counsel), for appellant.
*476 Donoghue, Thomas, Auslander & Drohan, LLP, Hopewell Junction (Daniel Petigrow and Neelanjan Coudhury of counsel), for respondent.
*477 Jay Worona, Latham, and Aileen Abrams for New York State School Boards Association, Inc., amicus curiae.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH and JONES concur.
OPINION OF THE COURT
PIGOTT, J.
In this appeal, we are asked to determine the statute of limitations governing a taxpayer's claim against a school district for money had and received arising from an erroneous assessment of school taxes and when such claim accrues. We hold that Education Law § 3813 (2-b)'s one-year statute of limitations applies and that the claim for money had and received accrues when the taxes are paid.
*478 Regional Economic Community Action Program, Inc. (RECAP) is a tax-exempt charitable organization and owner of properties in the City of Middletown that provide housing for participants in RECAP's "Community Re-Entry Program." In February 2004, the City rejected RECAP's Real Property Tax Law § 420-a application for a charitable tax exemption, and assessed taxes against the properties accordingly. These assessments, by virtue of their inclusion on the City's final tax rolls, became part of the tax roll adopted by the Enlarged City School District of Middletown (the District).
In June 2004, without giving notice to the District, RECAP commenced a CPLR article 78 proceeding against the City, challenging the legality of the assessments. During the pendency of that proceeding, RECAP paid both city and school taxes for the years 2003-2004 through 2007-2008. According to RECAP, it included a letter with those payments stating that it was paying its taxes to the City "under protest." In March 2008, this Court concluded that RECAP was entitled to the exemption (see Matter of Adult Home at Erie Sta., Inc. v Assessor & Bd. of Assessment Review of City of Middletown, 10 NY3d 205, 212, 217 [2008]), and it thereafter recovered the property taxes it had paid the City.
In January 2009, RECAP demanded that the District refund RECAP's tax payments for the 2003-2004 through 2007-2008 tax years. Upon the District's refusal, RECAP commenced this action in April 2009 asserting a claim for money had and received, seeking over $142,000. Both parties moved for summary judgment, the District asserting, among other things, that RECAP's cause of action was time-barred under Education Law § 3813 (2-b).
Supreme Court granted the District's cross motion, holding that RECAP failed to comply with section 3813's notice of claim and one-year statute of limitations provisions (see Education Law § 3813 [1], [2-b]). The Appellate Division affirmed on a different ground, holding that although RECAP may have submitted a letter with its tax payments to the City stating that such payments were "under protest," that letter referred to city tax payments alone, not those made to the District (79 AD3d 723 [2d Dept 2010]). We affirm, solely on the statute of limitations ground adopted by Supreme Court.
We reject RECAP's contention that its claim for money had and received is governed by a six-year statute of limitations. *479 To be sure, a taxpayer may recover taxes paid pursuant to a wrongful assessment under that theory and, because such a claim is premised "upon a contractual obligation or liability, express or implied in law or fact," it is generally governed by a six-year statute of limitations (Matter of First Natl. City Bank v City of N.Y. Fin. Admin., 36 NY2d 87, 93 [1975]; see also Diefenthaler v Mayor of City of N.Y., 111 NY 331, 337-338 [1888]). That limitation period is inapplicable here, however, because RECAP seeks recovery against a school district, which is entitled to rely on Education Law § 3813 (2-b).
According to section 3813 (2-b)which governs non-tort claims against school districts"notwithstanding any other provision of law providing a longer period of time in which to commence an action or special proceeding, no [such] action or special proceeding shall be commenced against [a school district] ... more than one year after the cause of action arose" (emphasis supplied). The plain language of section 3813 (2-b) refutes RECAP's claim that the longer six-year statute of limitations governs. Therefore, RECAP had one year from the date the cause of action arose within which to bring its claim.
RECAP asserts that its entire claim accrued in March 2009when the District refused to issue a refundrelying on Education Law § 3813 (1), which states that "[i]n the case of an action or special proceeding for monies due arising out of contract, accrual of such claim shall be deemed to have occurred as of the date payment for the amount claimed was denied." That provision is inapplicable to this type of claim.
In 1992, the Legislature amended section 3813 (1) by adding the "accrual" language to clarify the accrual date for filing a notice of claim as a precondition to a suit brought against a school district by a party in a contractual relationship with the district (see Mem in Support, Bill Jacket, L 1992, ch 387; see also Education Law § 3813 [1]). But RECAP and the District do not have a contractual relationship. Although a cause of action for money had and received is an action based on an implied contract, this designation is "a misnomer because it is not an action founded on contract at all; it is an obligation which the law creates in the absence of agreement when one party possesses money that in equity and good conscience he ought not to retain and that belongs to another" (Parsa v State of New York, 64 NY2d 143, 148 [1984], citing Miller v Schloss, 218 NY 400, 406-407 [1916]). Because section 3813 (1) addresses notice of claim requirements for parties who have a contractual *480 relationship with the school district, RECAP's section 3813 (1) accrual date argument is without merit.
We conclude that RECAP's cause of action for money had and received accrued when it paid the taxes (see First Natl. City Bank, 36 NY2d at 93). Even assuming RECAP's last payment was made "under protest" in October 2007, as RECAP claims, RECAP did not commence this action until April 2009, outside the one-year statute of limitations, rendering RECAP's claim time-barred.[*] Accordingly, the order of the Appellate Division should be affirmed, with costs.
Order affirmed, with costs.
NOTES
[*] Given our holding, we need not address RECAP's contentions that RECAP paid the school taxes "under protest" or that RECAP complied with section 3813 (1)'s notice of claim requirements. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2436821/ | 966 N.E.2d 1069 (2012)
359 Ill. Dec. 381
The PEOPLE of The State of Illinois, Plaintiff-Appellee,
v.
Sherrianne REMSIK-MILLER, Defendant-Appellant.
No. 2-10-0921.
Appellate Court of Illinois, Second District.
March 8, 2012.
*1071 Thomas A. Lilien, Deputy Defender, Kathleen Weck, Office of the State Appellate Defender, Elgin, for Sherrianne Remsik-Miller.
Joseph H. McMahon, State's Attorney, St. Charles (Lawrence M. Bauer, Deputy Director, Edward R. Psenicka, State's Attorneys Appellate Prosecutor, of counsel), for the People.
OPINION
Justice BURKE delivered the judgment of the court, with opinion:
¶ 1 Following a bench trial, defendant, Sherrianne Remsik-Miller, was convicted of solicitation of murder for hire (720 ILCS 5/8-1.2(a) (West 2008)) and sentenced to 22 years in prison. Following the denial of her pro se motion for reconsideration of her sentence, defendant timely appealed. Defendant argues that the court erred in not inquiring into her pro se claim that her trial counsel was ineffective (see People v. Krankel, 102 Ill. 2d 181, 80 Ill. Dec. 62, 464 N.E.2d 1045 (1984)). The issue is whether defendant's comment at the hearing on her motionthat defense counsel did not represent her "to his fullest ability during [her] trial"amounted to an allegation of ineffective assistance such that it triggered the court's duty to inquire. For the reasons that follow, we remand for the limited purpose of allowing the trial court to conduct the necessary preliminary examination as to the factual basis of defendant's allegation.
¶ 2 I. BACKGROUND
¶ 3 Defendant was charged with solicitation of murder for hire (720 ILCS 5/8-1.2(a) (West 2008)) and solicitation of murder (720 ILCS 5/8-1.1(a) (West 2008)). Following a bench trial, the trial court found defendant guilty of solicitation of murder for hire and set the matter for sentencing.
¶ 4 Defense counsel and defendant each filed a posttrial motion. Defense counsel's motion asked for a judgment of not guilty or, in the alternative, a new trial. The trial court denied the motion. Defendant's pro se motion asked for a "new trial based on new evidence and/or witnesses not known/available for trial of June 7, 2010." Although defense counsel did not adopt defendant's pro se motion, he asked the trial court to consider it. Thereafter, the following colloquy took place:
"THE DEFENDANT: Your Honor, at the trial you said my intent was very clear by the tapes. And there are witnesses that arecan be available to show that that was not my intent. Other people that I had talked to being angry, just talking to and venting, people who knew me for more than three months. I would like the opportunity to at least have them speak before
THE COURT: What would you have them testify to?
THE DEFENDANT: That I was angry. They knew the situation between my husband and myself. And that I was angry. And that I never would have gone through with anything.
THE COURT: They couldn't testify to that. They could testifyyou could bring in 50 people, all of whom would say I know [defendant], I know she was angry at her husband. They could not then go on to say what was going on in your mind, that's inadmissible evidence.
*1072 THE DEFENDANT: They could talk about things we had talked about, my friends and I.
THE COURT: No, that would be inadmissible hearsay. I'm just telling you the law.
THE DEFENDANT: I'm just saying Iokay.
[DEFENSE COUNSEL]: What you're saying is you didn't intend.
THE DEFENDANT: I didn't intend, correct.
[DEFENSE COUNSEL]: The Court knows that's our position. He's aware of it.
THE COURT: I've read your letters in allocution, I'm very familiar with what your position is. So, that motion will be denied as well.
[ASSISTANT STATE'S ATTORNEY]: Your Honor, we would ask that the defendant, if the Court wishes to inquire, list of [sic] people that she would have called, notwithstanding the Court's ruling. There may be something out there, but we would ask that it be made of record.
THE DEFENDANT: Mary Ellen Rea. Steven Kampau. Cindy Knotts. Mary Bublitz. That's allthat's off the top of my head. I could sit down and come up with a few more.
[DEFENSE COUNSEL]: These are people who would testify that you were angry at your husband?
THE DEFENDANT: Mary Ellen Rea was my therapist, yes.
[DEFENSE COUNSEL]: I think the Court probably is aware of that.
THE COURT: She testifiedthe evidence came out that she was.
Is the State ready to proceed to sentencing?"
The matter proceeded to a sentencing hearing, after which the court sentenced defendant to 22 years in prison.
¶ 5 Thereafter, defendant filed a pro se motion for reconsideration of her sentence. Defense counsel did not file a postsentencing motion. A hearing took place on September 3, 2010, at which defendant appeared pro se. Defendant did not present oral argument in support of her motion. After the State argued as to why the motion should be denied, the court asked defendant if she wished to reply. The following colloquy took place:
"[THE DEFENDANT]: Yes, sir, I do.
First, I want to make sure that [defense counsel] is no longer listed as my attorney. I don't believe he did represent me to his fullest ability during my trial.
THE COURT: Okay. That's not an issue before this court today. That would be an issue for the appellate court.
[THE DEFENDANT]: Okay."
After defendant replied to the State's arguments, the court denied the motion.
¶ 6 Defendant timely appealed.
¶ 7 II. ANALYSIS
¶ 8 Defendant argues that, "[b]ecause the trial court rejected defendant's allegation that trial counsel was ineffective without inquiring into the factual basis for the claim, this case should be remanded for a proper inquiry." According to defendant, the comment that she made at the hearing on her pro se motion for reconsideration of her sentencethat she did not believe that defense counsel represented her "to his fullest ability during [her] trial"was sufficient to raise a claim of ineffectiveness. The State first responds that the trial court properly inquired into and rejected *1073 defendant's claim. According to the State, defendant's statement at the hearing on her pro se motion for reconsideration of her sentence related back to defendant's original argument (raised at the hearing on the posttrial motions) that certain witnesses should have been presented at trial, which the court properly addressed. In the alternative, the State maintains that the comment at the hearing on her pro se motion for reconsideration of her sentence was "too vague and conclusory" to warrant further investigation.
¶ 9 When a defendant brings a pro se posttrial claim that trial counsel was ineffective, the trial court must inquire adequately into the claim and, under certain circumstances, must appoint new counsel to argue the claim. Krankel, 102 Ill.2d at 187-89, 80 Ill. Dec. 62, 464 N.E.2d 1045; see People v. Taylor, 237 Ill. 2d 68, 75, 340 Ill. Dec. 161, 927 N.E.2d 1172 (2010); People v. Pence, 387 Ill.App.3d 989, 994, 327 Ill. Dec. 409, 902 N.E.2d 164 (2009). New counsel is not automatically required merely because the defendant presents a pro se posttrial claim that his counsel was ineffective. People v. Moore, 207 Ill. 2d 68, 77, 278 Ill. Dec. 36, 797 N.E.2d 631 (2003). The trial court must first examine the factual basis of the claim. The supreme court has listed three ways in which a trial court may conduct its examination: (1) the court may ask trial counsel about the facts and circumstances related to the defendant's allegations; (2) the court may ask the defendant for more specific information; and (3) the court may rely on its knowledge of counsel's performance at trial and "the insufficiency of the defendant's allegations on their face." Id. at 78-79, 278 Ill. Dec. 36, 797 N.E.2d 631. If the defendant's allegations show possible neglect of the case, the court should appoint new counsel to argue the defendant's claim of ineffective assistance. Taylor, 237 Ill.2d at 75, 340 Ill. Dec. 161, 927 N.E.2d 1172; Pence, 387 Ill.App.3d at 994, 327 Ill. Dec. 409, 902 N.E.2d 164. However, if the court concludes that the defendant's claim lacks merit or pertains only to matters of trial strategy, the court may deny the claim. Taylor, 237 Ill.2d at 75, 340 Ill. Dec. 161, 927 N.E.2d 1172; Pence, 387 Ill.App.3d at 994, 327 Ill. Dec. 409, 902 N.E.2d 164. If the court fails to conduct the necessary preliminary examination as to the factual basis of the defendant's allegations, the case must be remanded for the limited purpose of allowing the court to do so. People v. Serio, 357 Ill.App.3d 806, 819, 294 Ill. Dec. 337, 830 N.E.2d 749 (2005). The threshold question of whether defendant's statement constituted a pro se claim of ineffective assistance sufficient to trigger the court's duty to inquire into the factual basis of the claim is a question of law; thus, our review is de novo. See Taylor, 237 Ill.2d at 75, 340 Ill. Dec. 161, 927 N.E.2d 1172.
¶ 10 As an initial matter, we reject the State's argument that defendant's statement concerning counsel's failure to represent her to his fullest ability necessarily related back to defendant's pro se motion for a new trial wherein she expressed her desire to present certain additional witnesses. There is simply nothing in the transcript that allows us to draw that conclusion. Indeed, defendant's pro se motion for a new trial did not allege ineffectiveness on the part of counsel; rather, it requested a "new trial based on new evidence and/or witnesses not known/available for trial of June 7, 2010." Moreover, the court did not treat the motion as one raising ineffectiveness; it addressed the motion as, indeed, a motion for a new trial.
¶ 11 Having determined that defendant's allegation that counsel failed to represent her to his fullest ability did not necessarily relate back to defendant's pro *1074 se motion for a new trial, the question becomes whether, as the State contends, defendant's comment was "too vague and conclusory" to trigger the court's duty to inquire.
¶ 12 We first address the State's case law. In support of its position, the State cites People v. Johnson, 159 Ill. 2d 97, 126, 201 Ill. Dec. 53, 636 N.E.2d 485 (1994), People v. Bobo, 375 Ill.App.3d 966, 985, 314 Ill. Dec. 387, 874 N.E.2d 297 (2007), and People v. Ford, 368 Ill.App.3d 271, 276, 306 Ill. Dec. 472, 857 N.E.2d 871 (2006). In addition, the State cites People v. Ward, 371 Ill.App.3d 382, 431, 308 Ill. Dec. 899, 862 N.E.2d 1102 (2007), for the proposition that "some minimum requirements must be satisfied by a defendant in order to trigger a preliminary inquiry by the trial court," and it cites People v. Radford, 359 Ill.App.3d 411, 418, 296 Ill. Dec. 272, 835 N.E.2d 127 (2005), for the proposition that "[a] bald allegation of ineffective assistance is insufficient."
¶ 13 We note that the first three of the State's cases are distinguishable, because in each case the trial court conducted the requisite inquiry. See Johnson, 159 Ill.2d at 126, 201 Ill. Dec. 53, 636 N.E.2d 485 (finding that "none of defendant's arguments were overlooked or ignored"); Bobo, 375 Ill.App.3d at 984, 314 Ill. Dec. 387, 874 N.E.2d 297 ("The trial judge listened to defendant and discussed his allegations of ineffective assistance of counsel with him. The record reflects that the trial court's actions were appropriate and demonstrated adequate review and inquiry into defendant's allegations of ineffective assistance of counsel."); Ford, 368 Ill. App.3d at 276, 306 Ill. Dec. 472, 857 N.E.2d 871 ("The record shows that the court considered defendant's allegations of ineffective assistance of counsel as they arose and determined, in essence, that defendant did not bring forth a colorable claim of ineffective assistance of counsel.").
¶ 14 We now turn to Radford and Ward. The issue on appeal in each case was whether the court erred in failing to conduct the Krankel inquiry. In Radford, the defendant sent a letter to the trial judge, stating:
"`[I]f my witness was called and my lawyer would have did a halfway good job that I would be at home with my family * * *.'" Radford, 359 Ill.App.3d at 416, 296 Ill. Dec. 272, 835 N.E.2d 127.
The First District first found that the defendant's ex parte letter did not make an adequate claim of ineffective assistance. Id. It also found that, because the defendant did not argue a claim of ineffective assistance at his posttrial hearing when the letter was presented (while he was represented by counsel), the defendant forfeited any claim that the letter may have raised. Id. at 417, 296 Ill. Dec. 272, 835 N.E.2d 127. The court also noted that an ex parte letter does not amount to a motion. Id. The court further found that, even if the letter was sufficient to raise a claim of ineffectiveness, the trial court "did not need to reach Krankel" because the letter was conclusory. Id. at 418, 296 Ill. Dec. 272, 835 N.E.2d 127. The court went on to hold: "The trial court adequately evaluated the defendant's claim under Moore because it was familiar with defendant's counsel's performance at trial and defendant's lack of detailed allegations of defendant's counsel's ineffective performance." Id. It then concluded its analysis by stating that "the trial court properly concluded that it need not conduct any further inquiry." Id. at 418-19, 296 Ill. Dec. 272, 835 N.E.2d 127. Thus, while the court stated that no inquiry was required, it nevertheless held that the trial court "adequately evaluated defendant's claims." Id. at 418, 296 Ill. Dec. 272, 835 N.E.2d 127.
*1075 ¶ 15 In Ward, the defendant informed the trial court:
"`[T]here is a lot about my case that you still do not know about and there was a lot of evidence that was not submitted in my trial, in my motion.
I had signed affidavits and a lot of other things that was not submitted, you know, and I blame that onand the fact of my counsel, and I ask that, you know, that you take all that into consideration, you know.'" Ward, 371 Ill.App.3d at 432, 308 Ill. Dec. 899, 862 N.E.2d 1102.
The First District found that this allegation was insufficient to raise a claim of ineffective assistance of counsel, noting that it was not meaningfully distinguishable from Radford. The court quoted Radford, stating that "`[a] bald allegation that counsel rendered inadequate representation is insufficient for the trial court to consider [as an acceptable invocation of Krankel].'" Id. (quoting Radford, 359 Ill. App.3d at 418, 296 Ill. Dec. 272, 835 N.E.2d 127).
¶ 16 While the First District case law relied on by the State seems to hold that a fair degree of specificity is required before a duty to inquire is even triggered, this court's decision in People v. Bolton, 382 Ill.App.3d 714, 721, 321 Ill. Dec. 153, 888 N.E.2d 672 (2008), suggests that even a bare claim of ineffectiveness warrants some degree of inquiry under Moore. In Bolton, we stated that "if a defendant merely states, `trial counsel is ineffective,' a court should at least ask `how' and give the defendant a chance to elaborate." Id. In Pence, we found that the court erred when it failed to inquire into the factual matters underlying the defendant's allegations (made in allocution) that "`[his] defense counsel did not thoroughly represent [him]'" and that "`there were issues of facts that [his] defense looked [sic] and omitted'" and, further, that the court was "`denied the full picture for which [its] verdict may have changed.'" Pence, 387 Ill.App.3d at 995, 327 Ill. Dec. 409, 902 N.E.2d 164. We held: "Defendant's claims of ineffectiveness may or may not have merit, but the court must examine their factual basis." Id. at 996, 327 Ill. Dec. 409, 902 N.E.2d 164. Thus, we remanded for that inquiry. Id.
¶ 17 Aside from the apparent conflict with decisions of this court, the cases cited by the State also appear to disregard Moore's holding that the trial court must conduct "some type of inquiry" into the factual basis of the defendant's claim (Moore, 207 Ill.2d at 79, 278 Ill. Dec. 36, 797 N.E.2d 631) and, even if the claim arguably lacks merit as stated, must "`afford[ ] the defendant the opportunity to specify and support his complaints'" (id. at 80, 278 Ill. Dec. 36, 797 N.E.2d 631 (quoting People v. Robinson, 157 Ill. 2d 68, 86, 191 Ill. Dec. 107, 623 N.E.2d 352 (1993))). Here, where defendant stated to the court that she wanted to make sure that defense counsel was "no longer listed as [her] attorney" and then said, "I don't believe he did represent me to his fullest ability during my trial," the court should have at least asked a follow-up question. The relatively recent supreme court case of Taylor, 237 Ill.2d at 75-77, 340 Ill. Dec. 161, 927 N.E.2d 1172, supports this conclusion. In Taylor, the supreme court addressed the issue of whether the defendant's statement at sentencing constituted a pro se claim of ineffective assistance of counsel sufficient to trigger the trial court's duty to conduct a Krankel inquiry. Id. The defendant argued that his statement, which did not mention defense counsel at all, amounted to an implicit allegation of ineffectiveness. The court rejected the defendant's claim. What is instructive for this court is the fact that, in doing so, the supreme court found it particularly relevant *1076 that "nowhere in defendant's statement at sentencing did he specifically complain about his attorney's performance, or expressly state he was claiming ineffective assistance of counsel." Id. at 76, 340 Ill. Dec. 161, 927 N.E.2d 1172. Here, defendant's comment that her attorney did not represent her "to his fullest ability during [her] trial" made clear that she was raising a claim of ineffectiveness and, thus, the court should have inquired further.
¶ 18 III. CONCLUSION
¶ 19 Based on the foregoing, we remand for the limited purpose of allowing the trial court to conduct the necessary preliminary examination into the factual basis of defendant's allegation. See Serio, 357 Ill. App.3d at 819, 294 Ill. Dec. 337, 830 N.E.2d 749. We note, however, that if the trial court finds that defendant's ineffectiveness claim relates back to the argument that she raised at the hearing on the posttrial motions, concerning whether certain witnesses should have been presented at trial, then the court need not inquire further and may deny the claim, because the court's original inquiry was sufficient under Moore (see Moore, 207 Ill.2d at 78-79, 278 Ill. Dec. 36, 797 N.E.2d 631) and because defendant raises no challenge to its sufficiency. Of course, if defendant is referring to other alleged deficiencies in counsel's performance, the trial court must conduct its preliminary investigation into those areas.
¶ 20 Remanded.
Justices BOWMAN and SCHOSTOK concurred in the judgment and opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2436847/ | 701 S.W.2d 344 (1985)
WICKERSHAM FORD, INC., Appellant,
v.
ORANGE COUNTY, Texas, et al, Appellees.
No. 09 84 320 CV
Court of Appeals of Texas, Beaumont.
December 12, 1985.
Rehearing Denied January 2, 1986.
*345 John H. Hannah, Jr., Tyler, for appellant.
Louis Dugas, Jr., Orange, for appellees.
OPINION
BROOKSHIRE, Justice.
Limited appeal to recover attorneys' fees. The district court, following the jury's verdict, awarded the Appellant damages for breach of contract of sale of automobiles, of which neither Appellant nor Appellee complains. No appeal was taken concerning these breached contract damages, but Appellant was denied attorneys' fees claimed under TEX.REV.CIV.STAT. ANN. art. 2226 (Vernon Supp.1985). Firstly, the court held, as a matter of law, that the attorneys' fees, founded on a contract and based on the cited statute, could not be recovered against a county.
An additional count and amount for attorneys' fees were found by the jury. This separate award was founded on the jury's finding that the county's "cross-claim" under TEX.BUS. & COM.CODE ANN. art. 17.41, et seq., Deceptive Trade Practices-Consumer Protection Act, was filed in bad faith and for the purpose of harassing Appellant. The jury determined that the Appellant, Wickersham Ford, Inc., had not violated the Deceptive Trade Practices Act. The court rendered judgment non obstante veredicto despite the finding of harassment. The judgment n.o.v. was signed without an appropriate motion or notice to Appellant. Apparently, this action at the trial level was sua sponte.
A summary or version of this record is indicated. In mid-January, 1983, Orange County officials, through the auditor's office, sent out a "Request for Bids", including specifications for 7 vehicles for the sheriff's office. The "Request for Bids" was distributed by mail to coincide with the first publication of the same in the Orange Leader, a daily newspaper. The "Request for Bids" and the complete packet of specifications were a public record. The sheriff, or the sheriff's office, determined the specifications for the needed vehicles and delivered them to the auditor's office. This procedure was customary and was not objected to by the Commissioners Court. The chief deputy, Jim Adams, usually supplied the information and specifications and the notice to bidders (Request for Bids) to the auditor. Item 3 of the "Notice to Bidders", on page "F" of Plaintiff's Exhibit No. 1 read:
"3. If there are any questions contact Chief Deputy Adams at 883-2616."
The telephone number was that of the sheriff's department. The vehicle specifications did not require new units. Nor did the specifications set out a minimum mileage. The specifications were detailed, containing 31 separate specifications. These specifications did not mention the year model of the cars. The sheriff's vehicles had only to meet or exceed the stated specifications. The county auditor conceded that the bid proposal sent to Wickersham Ford, Inc., did not indicate that the vehicles should be new. The auditor agreed that there was no requirement in the bid proposals setting a minimum mileage on the vehicles. In fact, there was no demand or request in any of the bid proposals or specifications requiring information about mileage. Nor were there any blanks to fill in *346 at any place on the bids requiring that the mileage of a vehicle be disclosed.
In the past, in January of 1982, there had been a request for bids sent out for 4 or 5 4-door passenger sedans for the sheriff's department, specially designated "new". A specification for "new" equipment was not made in the instant case.
The Appellant had been selling cars to Orange County and to the sheriff's department for about 34 years. Over the 34 year period, Appellant had been awarded approximately 80% of the bids involving vehicles.
Prior to the final date for receiving the bids, Mr. Charles Wickersham, the President of the Appellant motor company, contacted Chief Deputy Jim Adams, pursuant to item 3, being an instruction to the bidders. Wickersham, through the Chief Deputy, advised the sheriff's office that there were available for immediate delivery 3 cars, one Mercury and 2 Ford LTD's. Chief Deputy Adams was fully advised that the 2 Fords had been used in a driver's education program in an independent school district in Orange County. One of the Fords had about 5,000 miles on it and the other LTD had 6,000 miles on the speedometer. The other vehicles requested by the sheriff's office would be factory ordered. Wickersham also explained that the 3 cars available for immediate delivery would meet or exceed the bid specifications. All 3 were equipped with a partial police package. The detailed specifications only required a non-police package because usually the non-police packaged vehicles could be delivered in a shorter time than vehicles with either partial or complete police packages. The 2 vehicles used in driver's education courses would be covered by a standard new car warranty. The 1982 Mercury Marquis was new and had a "handling package", which was alleged to have made it a tighter and more maneuverable car. It met or exceeded the County of Orange's specifications.
Chief Deputy Adams was interested in having the 3 cars immediately delivered. The sheriff's office needed to have them available at the earliest possible time. The quicker the sheriff's vehicles could be delivered, the better the situation would be for that branch of law enforcement. Otherwise, it would take from 90 days to 6 months to obtain a sheriff's vehicle with a complete police package after the bids were accepted and the orders placed. Adams testified that the sheriff's department needed cars and needed them badly. He said that the cars had heavy duty suspension equipment and at least partial police packages, testifying further that no one of the 3 cars fell below any of the specifications. Adams was perfectly satisfied with the 3 cars. Again, he stressed the need and desirability of immediate delivery. Adams communicated all the information concerning the equipment and specifications of the 3 vehicles to the sheriff, who also desired their immediate delivery. The sheriff instructed Adams to go to Wickersham, Inc., and personally inspect the cars in a careful manner. Chief Adams stated that, in view of the heavy duty springs and the extra equipment, the 5,000 or 6,000 miles on the cars were considered negligible. He said that 5,000 miles would be placed on a sheriff's car in about 38 days. In the past, Adams had had experience with driver's education cars. His experience had taught him that they were normally driven very slowly with hardly any wear, the bugs in them having been worked out. Adams further revealed that, on the Mercury Marquis, only one tire had to be realigned. The 3 cars were in good shape.
The auditor unsealed the bids on the last day of January, 1983, in a Commissioners Court session. Following custom, the bids were tabled for a week in order to grant the auditor's office and the sheriff's office full time to study and analyze them. During the week after January 31, 1983, the auditor's office advised the sheriff's office that Wickersham was the low bidder. Also, during this week's interim, Chief Deputy Adams made a special trip to Wickersham Ford, Inc., and inspected the 3 cars. The Chief Deputy was fully satisfied. He advised the sheriff that the department *347 would get a good deal by obtaining the 3 cars from Wickersham Ford, Inc.
In early February, 1983, the sheriff appeared at the Commissioners Court meeting and was asked by the county judge which bid he preferred. The sheriff replied that he wanted to accept the Wickersham Ford, Inc., bid. The Commissioners Court accepted the Wickersham bid on February 7, 1983. Later on, during the same day, when the Commissioners Court accepted and approved Wickersham's bid, both Chief Deputy Adams and Sheriff Parker called Mr. Wickersham and advised him that his Ford agency had been awarded the bid. Then, on February 8, 1983, the sheriff's deputies picked up the 3 cars. They painted one and began to equip the other two with sirens and radios. One of the Ford LTD's was turned over to the body shop for specialized painting and in the other two vehicles holes were drilled to put in radios and special lights. Holes were drilled in the rear quarter panels for antennae. Other holes were drilled through the firewall and grill for siren, speaker and radio wiring. In addition, some mileage was put on the cars. As of the trial date, the County was still in possession of the vehicles.
At some time after February 14, 1983, a representative of Harmon Chevrolet, advised then commissioner, Arthur Simpson, that 2 of the cars had mileage on them. On March 7, 1983, the Commissioners Court considered "rescinding" the acceptance of the Wickersham bid. After discussion, there were 4 votes in favor of "rescinding" the Wickersham bid or, more correctly stated, of repudiating the acceptance of said bid. Wickersham was permitted to address that Commissioners Court's meeting. He stated that he wanted to be fair and:
"... if you don't want these cars, and if you will put them back in whole, I will take them back. If you want to go ahead and order the seven units from the factory, we will be glad to do that, too. That's no problem. I just want everybody here happy."
Honorable Stephen C. Howard, an Assistant County and District Attorney for the County of Orange, attended the same meeting. He explained that the District Attorney's office is also the County Attorney's office. He stated that part of his responsibilities as County Attorney was to give advice to the County Commissioners Court. At the meeting on March 7, 1983, he officially advised the Commissioners Court as follows:
"A. I told the Court that I believed they had a binding contract with Mr. Wickersham and his Company."
....
"Q. Did they immediately, or within a few minutes after you gave them that advice, without seeking any other advice, vote to repudiate the contract?
"A. The part of your question about seeking other advice, I don't know, but it wasn't but a few minutes later they did vote.
"Q. To repudiate the contract?
"A. That is correct.
"Q. You didn't see them seek any other advice, did you?
"A. No."
A letter to Wickersham advised him to pick up the cars; no offer was made to restore the cars to their original condition.
Having not received his vehicles, Wickersham Ford, Inc., filed suit for breach of the contract seeking damages, interest, costs and attorneys' fees. Orange County filed a cross-claim under TEX.BUS. & COM.CODE ANN., sec. 17.45, et seq. (Vernon Supp.1985), alleging the Appellant had failed to disclose that two of the cars bid had been used in Driver Education. Answering the cross-claim, Wickersham pleaded that the Deceptive Trade Practices Act suit was groundless and filed in bad faith or, alternatively, was brought for the purposes of harassment.
By its verdict, the jury found that Chief Deputy Jim Adams had apparent authority to determine whether the Mercury and the 2 LTD automobiles met or exceeded the specifications for same; that Adams determined *348 that the 3 vehicles from Wickersham met or exceeded the specifications of the bid that was accepted by Commissioners Court; that Orange County repudiated its contract with Wickersham without just cause; that, prior to February 7, 1983, Wickersham Ford did not fail to disclose to Orange County that the Ford vehicles had been used in driver education programs; that Orange County brought its deceptive trade practices suit against Wickersham Ford in bad faith; and that the cross-claim of Orange County was brought for the purposes of harassment.
A crucially important stipulation as to all attorneys' fees was entered into by both parties. It recited that Wickersham's necessary and reasonable fees, on the breach of contract action, would be $22,555.00. An additional reasonable amount for defending the DTPA cross-claim was $5,560.00, with expenses of $273.00. Further, on an appeal, a reasonable fee for Wickersham, to the Court of Appeals, would be $3,000.00. The stipulation also provided that both counts for attorneys' fees would be awarded conditioned upon and consistent with the pleadings and the findings of the jury. At this stage of the appeal only the attorneys' fees for Wickersham Ford are in contest.
The Appellant contends that the trial court erred in denying its motion for judgment seeking attorneys' fees under TEX. REV.CIV.STAT.ANN. art. 2226 (Vernon Supp.1985). Appellant says that Texas counties are liable for such attorneys' fees. We agree.
The learned, respected trial court reasoned that, even though Wickersham prevailed on its breach of contract suit; nevertheless, it could not recover its reasonable and necessary stipulated attorneys' fees under art. 2226 because the county is not a corporation as that word is used in art. 2226. TEX.REV.CIV.STAT.ANN. art. 2226 (Vernon Supp.1985) is worded:
"Any person, corporation, partnership, or other legal entity having a valid claim against a person or corporation for services rendered, labor done, material furnished, overcharges on freight or express, lost or damaged freight or express, or stock killed or injured, or suits founded upon a sworn account or accounts, or suits founded on oral or written contracts, may present the same to such persons or corporation or to any duly authorized agent thereof; and if, at the expiration of 30 days thereafter, payment for the just amount owing has not been tendered, the claimant may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney's fees...."
The trial court construed this statute reasoning that Orange County was not a "corporation"; therefore, not liable for the attorneys' fees.
We think the reasoning and rationale in Garwood Irrigation Co. v. Lower Colorado River Auth., 387 S.W.2d 746 (Tex.Civ.App.Austin 1965, writ ref'd n.r.e.) is persuasive and sound. LCRA, a conservation and reclamation district of the State of Texas, being an agency or subdivision of the State, sued the irrigation company for $16,906.04 for water furnished for rice farming purposes. LCRA's claim for attorneys' fees was based on the then provisions of art. 2226 which permitted the recovery of attorneys' fees in behalf of "`[a]ny person having a valid claim against a person or corporation ... for material furnished ...'" The court, in effect, held that LCRA was a "person" within the meaning of then art. 2226, it being an agency or subdivision or municipality or political subdivision of the state. The rationale and logic of Garwood Irrigation Co., supra, is that a body politic, or agency, or municipality or political subdivision of the state should not obtain the benefits of the statute by claiming it is a "person" within art. 2226 and, therefore, entitled, as a plaintiff, to sue for and recover a reasonable attorney's fee and then deny the same rationale, logic and reasoning as to the applicability of art. 2226 when the body politic or subdivision of the state is sued as a defendant. We squarely, sanguinely hold that Orange County is a "person" within *349 the meaning of art. 2226 and that Wickersham Ford, Inc., is entitled to recover its $22,555.00 as reasonable attorneys' fees, based on the findings of the jury, on its breach of contract action. Also, we sagaciously hold Orange County is a corporation within the meaning of art. 2226.
Orange County relies, in a major sense, on City of Austin v. North Austin State Bank, 631 S.W.2d 564 (Tex.App.Austin 1982, no writ), to sustain its contention that attorney's fees cannot be adjudged against the county. We certainly respect that decision but decline to follow the same. In City of Austin, supra, in reversing the attorney's fees award, the court held that a city was not a corporation within the meaning of art. 2226. That case is not controlling of our case subjudice.
Furthermore, we do not think that sound reasoning supports the argument of Orange County that it should simply be exempt from liability for attorneys' fees. Under this record and under the findings of the jury and especially under the Stipulation and Agreement as to Attorneys' Fees, we find that Orange County should be held responsible. Here, the jury found that Orange County had sued Wickersham Ford, Inc., in bad faith and for the purposes of harassment. Orange County was in the wrong. The stipulation specifically awarded attorneys' fees consistent with the findings of the jury. We decide: "`The government is bound by law just as the citizen.'" State v. City Nat. Bank of Austin, 578 S.W.2d 155, 161 (Tex.Civ.App.Tyler 1979, affirmed 603 S.W.2d 764). In fact, the jury, in essence, found that the County of Orange committed two wrongs. It breached the contract and it brought a cross-claim against Wickersham Ford, Inc., in bad faith and for harassment. We sustain Wickersham Ford, Inc.'s first point of error and decide Appellant is entitled to $22,555.00 as attorneys' fees on the breach of contract action.
In its concluding point of error, Appellant contends the trial court committed error in denying the Appellant its attorney's fees for defending against Orange County's cross-claim based on the Deceptive Trade Practices Act (DTPA). Inasmuch as the district court entered a judgment which was, in effect, a judgment non obstante veredicto (when no motion for judgment n.o.v., concerning the jury findings, had been filed by the County), and inasmuch as no notice was given and no hearing was conducted before the denial of attorneys' fees was adjudicated by the court, we conclude that the court committed error. This, we decide, was error procedurally and because of the change in the wording of TEX.BUS. & COM.CODE ANN. sec. 17.50(c) (Vernon Supp.1985).[1]
Orange County filed its Second Amended Cross-Claim against Wickersham, saying its claim was brought pursuant to TEX. BUS. & COM. CODE ANN. secs. 17.45, 17.46 and 17.50 (Vernon Supp.1985), known as the "Deceptive Trade Practices Act". Orange County alleged that it was a consumer, pursuant to sec. 17.45(4) of the "Consumer Protection Act", in that, as a governmental entity, it sought to acquire goods by purchase, said goods being motor vehicles. The County further alleged that the "Cross-Defendant" was engaged in "trade" and "commerce" as defined by sec. 17.45(6), "Consumer Protection Act". The cross-claim was based on the allegation *350 that Wickersham had failed to disclose that 2 of the automobiles were "used". Appellant, Wickersham, responded by alleging that the County's suit was groundless and brought in bad faith, or brought for the purposes of harassment.
TEX.BUS. & COM.CODE ANN. sec. 17.50(c) (Vernon Supp.1985), provides that an action brought for the purposes of harassment requires that "the court shall award to the defendant reasonable and necessary attorneys' fees and court costs". We decide that the more recent and better-reasoned cases hold that, upon a finding of harassment by a jury, that party is entitled to its attorneys' fees. In Schott v. Leissner, 659 S.W.2d 752 (Tex.App.Corpus Christi 1983, writ ref'd n.r.e.), we find, at page 754:
"The plain meaning of the statute now appears to delineate two situations in which a defendant `shall' recover attorney's fees: 1) when an action is found to be groundless and brought in bad faith; or 2) when an action is brought for the purpose of harassment....
"When the legislature amends a law, it is presumed that it intends to change the law. American Surety Co. of New York v. Axtell Co., 120 Tex. 166, 36 S.W.2d 715, 719 (1931); Travenol Laboratories, Inc. v. Bandy Laboratories, Inc., 608 S.W.2d 308, 314 (Tex.Civ.App. Waco 1980, writ ref'd n.r.e.). We give effect to the legislature's addition of the comma after the word `faith' and the insertion of the word `brought' a second time after the word `or' in the present version of section 17.50(c), i.e., `groundless and brought in bad faith, (comma) or brought (additional word) for the purpose of harassment.' Following the rule established in the cases of Genico Distributors [v. First National Bank of Richardson, 616 S.W.2d 418 (Tex.Civ. App.Tyler 1981)], O'Shea [v. International Bus. Machines Corp., 578 S.W.2d 844 (Tex.Civ.App.Houston, (1st Dist. 1979)], and [Computer Business Services v. West [, 627 S.W.2d 759 (Tex.App. Tyler 1981)], we acknowledge that the question of whether a lawsuit is brought for the purpose of harassment is a fact question for the jury." (Emphasis theirs)[1]
We agree with the reasoning in Schott, supra.
As an additional reason and basis for awarding the $5,560.00 fee, we emphasize the stipulation which stated in part:
"Such attorneys' fees if any to be awarded conditioned upon and consistent with ... findings of the jury in said cause." (Emphasis added)
Because of this stipulation, we decide that Wickersham is entitled to its additional attorneys' fees in the amount of $5,560.00.
Hence, we decide, adjudge, and order that the judgment herein be reversed and reformed so that Appellant recover, firstly, $22,555.00 for its attorneys' fees on the breach of contract action and, in addition thereto, the sum of $5,560.00 for successfully defending the DTPA "Cross-claim", which said amounts are to draw interest at the post-judgment rate from the date of the judgment of the trial court, being the 17th day of May, 1984, until paid. In addition thereto, as stipulated, an additional $3,000.00 fee is awarded for the successful appeal to this court, with post-judgment interest after the date of this opinion until paid.
We sustain Appellant's Points of Error One, Two and Three, which are completely dispositive of this appeal. Hence, we need not act upon Appellant's Points of Error Four, Five and Six.
In accordance with this decision and opinion, we overrule Appellee's four "Reply Points".
Judgment REVERSED AND REFORMED and, as reformed, RENDERED in favor of Appellant.
NOTES
[1] A comparison with the law, which is applicable to this case, to the previous statutory language is meaningfully significant and different. Prior to the amendments of 1979, sec. 17.50(c) stated:
"On a finding by the court that an action under this section was groundless and brought in bad faith or for the purpose of harassment the court may award to the defendant reasonable attorney's fees in relation to the amount of work expended and court costs." [Schott v. Leissner, supra]
The language of this section, controlling our case, reads:
"On a finding by the court that an action under this section was groundless and brought in bad faith, or brought for the purpose of harassment, the court shall award to the defendant reasonable and necessary attorney's fees and court costs." (Emphasis ours) [Sec. 17.50(c) (Vernon Supp.1985)] | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2436849/ | 701 S.W.2d 275 (1985)
Janet Delois COLLINS, Appellant,
v.
The STATE of Texas, Appellee.
No. 05-84-01221-CR.
Court of Appeals of Texas, Dallas.
October 8, 1985.
Lawrence B. Mitchell, Dallas, for appellant.
Henry Wade, Crim. Dist. Atty., Wm. Randell Johnson, Asst. Dist. Atty., Dallas, for appellee.
Before STEPHENS, WHITHAM and McCLUNG, JJ.
WHITHAM, Justice.
Appellant, Janet Delois Collins, appeals a conviction for securing execution of a document by deception. In her sole ground of error, appellant contends that the trial court erred in establishing the amount of restitution based upon alleged improprieties on appellant's part prior to the initiation of the document which was the basis of the prosecution in this cause. Because there was evidence tending to show that the restitution sum was just, we affirm the judgment of the trial court.
At the conclusion of the punishment hearing, the trial court assessed penalty at confinement in the Texas Department of Corrections for three (3) years but suspended imposition of that sentence and placed the appellant on probation for a period of three (3) years. One of the terms and conditions of probation was that appellant pay restitution to the Texas Department of Human Resources in the amount of $5,969.22.
The indictment alleged that on April 11, 1983, appellant improperly related information to the Texas Department of Human Resources which allowed her to receive a greater amount of benefits than that to which she would have been entitled based upon the income of her household. Further, the indictment alleged that such information caused the generation of a document in May of 1983 that enabled appellant to receive monies from the Department of Human Resources to which she otherwise would not be entitled.
At trial, the State was permitted over objection to introduce evidence as to appellant's employment history prior to the date alleged in the indictment on which she gave improper and inaccurate information to the Department of Human Resources concerning her employment history. In addition, the State was allowed to introduce evidence that appellant improperly received payments from the Texas Department of Human Resources for a period commencing in *276 December of 1981 and concluding in December of 1983. Thus, the amount of money received by appellant included that which was gained because of her actions occurring in April of 1983, as well as because of her actions which occurred prior to that time.
Appellant argues that the trial court abused its discretion in basing the amount of restitution "upon a course of conduct that went beyond the time restraints contained in the indictment." Appellant relies upon Bruni v. State, 669 S.W.2d 829 (Tex. App.Austin 1984, no pet.) as her sole authority in support of her argument. We deem Bruni inapplicable. Bruni dealt with TEX.CODE CRIM.PROC.ANN. art. 42.12 § 15(g) (Vernon Supp.1985), a section concerning conditions of parole, not probation. The statutory language governing conditions of parole is narrow. Specifically, section 15(g) states, "[t]he conditions shall include the making of restitution or reparation to the victim of the prisoner's crime."
In contrast, the statutory language concerning conditions of probation is much broader. The section applicable to this case states that the terms and conditions of probation may include the condition that the probationer shall "make restitution or reparation in any sum the court shall determine." TEX.CODE CRIM.PROC.ANN. art. 42.12 § 6(a)h (Vernon Supp.1985). Therefore, we conclude that those cases which are applicable establish that the trial court did not err in requiring restitution for AFDC overpayments arising from appellant's actions which occurred prior to April of 1983. In Cartwright v. State, 605 S.W.2d 287 (Tex.Crim.App.1980), the court of criminal appeals set the limits on the trial court's discretion in setting a restitution condition on probation. The court wrote, "[d]ue process considerations ... require that there must be evidence in the record to show that the amount set by the court has a factual basis." Cartwright, 605 S.W.2d at 289.
In Cartwright the court found that the amount of restitution for the victim's personal injuries from an aggravated assault did not have an adequate evidentiary basis. In the present case, however, the factual basis for restitution was adequate. Specifically, the record includes the following testimony from Lorraine Sydnor, a criminal investigator for the Texas Department of Human Resources:
[PROSECUTOR]: Were you called upon to calculate the amount of loss that the Texas Department of Human Resources incurred in this case?
[WITNESS]: Yes, sir.
[PROSECUTOR]: And how did you calculate the amount of loss?
[WITNESS]: By taking the records that were sent to me from the Temporary', [sic] Incorporated, and doing a month-to-month budget, based upon the earned income that was not reported. Which indicated, that not every month was Ms. Collins not eligible for benefits, but just certain months. The months that she was eligible for either partial or some benefits she did, in fact, receive them, according to my calculation, and the months that she was not eligible, subtracted the amount that she was not entitled to have.
It alsoit would include her A.F.D.C., Medicaid and food stamps benefits and this period of time started from December of '81 through December of '83.
[PROSECUTOR]: And what was the total amount of A.F.D.C. benefits Ms. Collins received?
[WITNESS]: A.F.D.C. she received two thousand ten dollars, Medicaid was seventeen hundred thirty-seven dollars and twenty-two cents and food stamps was two thousand two hundred and twenty-two dollars.
[PROSECUTOR]: For a total amount of?
[WITNESS]: Five thousand nine hundred and sixty-nine dollars and twenty-two cents.
*277 [PROSECUTOR]: And this was over and above the amount she would have been entitled to receive?
[WITNESS]: That is correct.
[PROSECUTOR]: Had she answered her form 1101 truthfully.
[WITNESS]: And filled out her application correctly, that is correct, sir.
* * * * * *
[PROSECUTOR]: So the amounts that you testified to, the total amount of monies that were disbursed in the name and to Ms. Collins, five thousand nine hundred and sixty-nine dollars and twenty-two cents were based upon calculations that you made from documents identical to State's Exhibit 1 and 1(a); is that correct?
[WITNESS]: That's correct, sir.
The record also reflects that on April 14, 1983, the Texas Department of Human Resources conducted a follow-up interview with appellant concerning her application for aid. At the April 14 interview, appellant indicated that she was unemployed and had not been employed during the six months prior to the interview. This information was false. We conclude that this false information given within three days of her application bears sufficient nexus to the initiation of the document which was the basis of the prosecution to "show that the sum [of restitution] was `just'." Knight v. State, 635 S.W.2d 650, 652 (Tex. App.Fort Worth 1982, no pet.). The award of restitution is within the discretion of the trial court. In the absence of an abuse of discretion the award of restitution will not be reversed. As the court of criminal appeals noted in Cartwright, "[c]ertainly whether to order restitution as a condition of probation is within the sound discretion of the trial court. But the dollar amount is a matter the court shall determine." Cartwright, 605 S.W.2d at 289. We conclude, therefore, that the trial court did not err in basing the amount of restitution upon appellant's prior improprieties concerning AFDC benefits.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2436857/ | 701 S.W.2d 939 (1986)
In the Matter of K.M.P., Appellant,
v.
The STATE of Texas, State.
No. 2-85-091-CV.
Court of Appeals of Texas, Fort Worth.
January 8, 1986.
*940 Tom Whitlock, Denton, for appellant.
Jerry Cobb, Crim. Dist. Atty., Jim E. Crouch, Asst. Crim. Dist. Atty., Denton, for State.
Before FENDER, C.J., and ASHWORTH and HILL, JJ.
OPINION
FENDER, Chief Justice.
This is an appeal from the discretionary transfer of a juvenile, K.M.P., appellant, to criminal court.
The appellant, age 15, and her husband, age 19, were married and living with their four-day-old child on January 8, 1985. On this day, appellant, who had apparently been at home alone with the baby, told a neighbor that she had dropped the baby on the kitchen floor and the neighbor called an ambulance. The baby died early the next morning at the hospital.
The cause of death was due to head injuries. The doctor testified that the fractures were so numerous that they were difficult to diagram and that the injuries were of such force that he could not conceive that the dropping of the baby would cause this type of injury.
Appellant was taken into custody pursuant to a detention order. After a hearing of the State's petition for discretionary transfer to criminal court, the juvenile court waived jurisdiction over appellant.
We affirm.
In her first point of error appellant contends that the trial court erred in overruling her objection to the State's pleadings because such pleadings were fatally defective for "failure to state the manner of the alleged acts." Section 53.04(d)(1) of the Texas Family Code says that the petition must state: "with reasonable particularity the time, place, and manner of the acts alleged and the penal law or standard of conduct allegedly violated by the acts...." TEX.FAM.CODE ANN. sec. 53.04(d)(1) (Vernon 1975).
The petition for discretionary transfer to criminal court alleges that appellant "did then and there intentionally and knowingly cause the death of an individual ... by manner and means unknown; and ... that... K.M.P. ... did then and there intentionally, with the intent to cause serious bodily injury to [the baby], commit an act clearly dangerous to human life by manner and means unknown, which caused the death of [the baby]; and ... that ... K.M.P. ... did then and there intentionally and knowingly engage in conduct that caused serious bodily injury to [the baby], a child 14 years of age or younger by manner and means unknown."
Although a proper indictment, to serve as a basis for trial in a criminal court for the offense of murder, would necessarily allege the manner of death, the same is not required in a juvenile court proceeding by which jurisdiction of a child will be transferred to a criminal court. Matter of Edwards, 644 S.W.2d 815, 821 (Tex.App. Corpus Christi 1982, no writ). The fact that appellant is not apprised by the petition of the exact manner and means which caused the death for which she is charged, does not deny her due process. See id. Appellant's first point of error is overruled.
Appellant contends in her second point of error that the trial court erred in hearing the motion for discretionary transfer without complying with the notice provisions of section 53.06 of the Family Code. Section 53.06 states that:
(a) The juvenile court shall direct issuance of a summons to:
(1) the child named in the petition;
(2) the child's parent, guardian, or custodian;
(3) the child's guardian ad litem; and
*941 (4) any other person who appears to the court to be a proper or necessary party to the proceeding.
(b) The summons must require the persons served to appear before the court at the time set to answer the allegations of the petition. A copy of the petition must accompany the summons. (Emphasis ours.)
TEX.FAM.CODE ANN. 53.06 (Vernon 1975). Section 54.02(b) states that:
The petition and notice requirements of Sections 53.04, 53.05, 53.06, and 53.07 of this code must be satisfied....
Id.
Appellant contends that she herself was served with a summons without a copy of the petition and therefore the court did not have jurisdiction to hear the petition. However, the record reflects that appellant's attorney stated at the hearing that appellant "(had) been served with a copy of the petition." Also, the summon's return which is contained in the record states that appellant received a copy of the petition. There is no evidence in the record that appellant did not receive a copy of the petition, therefore, appellant cannot raise this point for the first time on appeal.
Appellant next contends that her father, A.R., was served with a copy of the summons but not of the petition. Section 53.06(e) of the Family Code states that:
(e) A party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing.
TEX.FAM.CODE ANN. sec. 53.06(e) (Vernon 1975).
The record reflects that at the hearing the following occurred:
MS. FLANAGAN (Assistant District Attorney): ... [T]he natural father of the juvenile has appeared numerous times before the court in detention hearings and indicated to the Court that he was appearing, not just for the purpose of testifying at the hearing as a witness, but was subjecting himself to the jurisdiction of the Court and was waiving service and Summons as required by the Family Code.
* * * * * *
THE COURT: Is it of any import to you that he, [A.R.] when asked, indicated that he was here for the purpose of submitting to the jurisdiction of the court?
MR. WHITLOCK (Appellant's attorney): I understand and recall that testimony vividly, your Honor. He being willing to come into court and submitting himself to the jurisdiction of the Court in no way removes a requirement that he be served with a Petition setting forth what we're here to do, according to the Family Code, and I don't think it's waivable just because he testifies....
* * * * * *
THE COURT: Then I would ask you: have you any complaint to make about thebeing served with a Summons or any notice of requirements regarding the proceedings here?
A.R.: I think there's nothing wrong by me not. I'm just getting the hearsay of what's going on. I don't get any papers telling me what's happening, explaining it to me. All I get is hearsay.
We find that under section 53.06(e) of the Family Code, service of summons and of the petition may be waived, and was waived in this case by A.R.
Appellees, in the record and in their brief, state that R. appeared at an earlier detention hearing on January 28, 1985 and voluntarily submitted himself to the jurisdiction of the court. This statement of fact has not been disputed by appellant and so will be accepted as true. The record reflects that a detention hearing was ordered on January 28, 1985 and held on January 29, 1985. This is probably the hearing to which appellees refer.
Because appellant's father waived service of summons at an earlier hearing and therefore subjected himself to the jurisdiction of the juvenile court, he cannot now complain of the juvenile court's lack of jurisdiction at this hearing.
*942 Appellant next contends that J.P., appellant's spouse, appeared for the hearing due to a subpoena requiring his presence in court to testify on behalf of the State and that he did not receive a copy of the petition. Appellant contends that the trial court did not have jurisdiction because of this. Apparently, appellant is contending that her husband should have received a summons and a copy of the petition because he is a "proper or necessary party" under 53.06(a)(4) of the Family Code.
We find that the trial court was not deprived of jurisdiction because of the lack of service upon J.P. Although it is probably necessary to serve a juvenile's parent with a summons and copy of the petition, we find that it is not necessary to also serve the husband of a married juvenile when a parent has been served.
The commentary to section 51.11 of the Family Code explains that a basic principle of the Code is that every child who appears before the juvenile court must have the assistance of some friendly, competent adult who can supply the child with support and guidance. See Texas Family Code Symposium, 5 Tex.Tech L.Rev. 529 (1974). See also Matter of Honsaker, 539 S.W.2d 198, 201 (Tex.Civ.App.Dallas 1976, no writ). Usually one of the child's parents will fill this need. See Matter of Honsaker 539 S.W.2d at 201. We hold that appellant's due process rights were adequately protected.
By finding that J.P. was served with the "required matters", (a subpoena) the trial court also found that he was not a proper or necessary party to the proceeding. Cf. TEX.FAM.CODE ANN. sec. 53.06 (Vernon 1975). Even though the definition of "party" contained in Section 51.02(10) of the Family Code includes "the child's ... spouse", we find that in this case, because A.R. was available to aid appellant during the hearing and because no contention is advanced that J.P. has rights which might be affected by the hearing, J.P. was not a proper or necessary party. See Matter of Honsaker, 539 S.W.2d at 201.
Appellant lastly contends that the trial court was deprived of jurisdiction because her mother was not served with a copy of the summons and the petition. Section 53.06(a)(2) of the Family Code requires that a child's parent be served with a summons and copy of the petition. See TEX.FAM.CODE ANN. sec. 53.06 (Vernon 1975). This provision does not require the issuance of a summons and a copy of the petition to both parents. The issuance of a summons to either of the child's parents is sufficient to comply with section 53.06(a) of the Family Code. Matter of Edwards, 644 S.W.2d 815, 818 (Tex.App.Corpus Christi 1982, no writ). Here, although appellant's father was not served, the equivalent was accomplished when he waived service and appeared at the hearing to aid his daughter. Appellant's second point of error is overruled.
In her third point of error appellant contends that there is no evidence to support the trial court's determination that there were "no services available to the juvenile court to effect the child's rehabilitation." The record shows that in its order of transfer to a criminal court the trial court found that "the prospects of adequate protection of the public and the likelihood of rehabilitation of [appellant] ... would not be substantially enhanced by the use of procedures, services and facilities available to the juvenile court. Specifically, due to the indicated rehabilitative needs of [appellant] ... and the brief duration that resort could be made to the procedures, services and facilities available to the Juvenile Court, the prospects of adequate protection and the likelihood of rehabilitation could be as well, if not better be, secured through waiver of the Juvenile Court's jurisdiction." [Emphasis ours.]
We find that there is evidence to support this finding of the court. After considering the background of appellant, the seriousness of the offense and reviewing the psychologist's reports, we find that there was sufficient evidence to support the finding that the rehabilitative needs of the appellant and the protection of the community could best be served through waiver of the juvenile court's jurisdiction. This is *943 especially so because of the short period of time available to the juvenile court to effectuate appellant's rehabilitation. Appellant's third point of error is overruled.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2436851/ | 701 S.W.2d 922 (1985)
KIRBY EXPLORATION COMPANY, Appellant,
v.
MITCHELL ENERGY CORPORATION, Appellee.
No. 01-85-708-CV.
Court of Appeals of Texas, Houston (1st Dist.).
November 21, 1985.
Rehearing Denied January 16, 1986.
*923 Jim L. Flegle, Laura B. Herring, Bracewell & Patterson, Houston, for appellant.
Ralph K. Harrison, George W. Lederer, Jr., Mitchell Energy Corp., Woodlands, for appellee.
Before WARREN, DUNN and SAM BASS, JJ.
OPINION
DUNN, Justice.
Suit was instituted by Mitchell Energy Corporation ("Mitchell") against Kirby Exploration Company ("Kirby") for conversion of oilfield pipe. The trial court found that there were no genuine issues of material fact as to the following, and granted summary judgment for Mitchell. See Tex. R.Civ.P. 166-A(c).
1. On March 1, 1982, and at all times relevant hereto, Mitchell Energy Corporation was the owner of 151 joints of 9-5/8 " 53.5 lb. P-110 LT & C Kawasaki seamless casing (the pipe) stored at Port Pipe Terminal, Inc., Harris County, Texas.
*924 2. On March 1, 1982, Kirby took possession of the pipe, without the knowledge or consent of Mitchell and exercised dominion, ownership and control over the pipe, to the exclusion of the exercise of the same rights by Mitchell.
3. On April 5, 1982, written demand was made upon Kirby to return the pipe to Port Pipe Terminal and to Mitchell. Kirby responded in writing on April 16, 1982, refusing to return the pipe and by asserting, without qualification, its ownership of the pipe.
4. The fair market value of the pipe in Harris County, Texas, on the date of the conversion of the pipe by Kirby, was $344,022.80.
The trial court also found that Kirby failed to establish the elements of its affirmative defenses of estoppel, negligence, and negligent entrustment, and further found that Kirby failed to show that it had title to the pipe sufficient to defeat Mitchell's motion for summary judgment.
In three points of error, Kirby contends that the trial court erred in granting summary judgment for Mitchell because genuine issues exist as to the following material facts:
1) The ownership of the pipe purchased by Kirby;
2) The identity of the pipe; and
3) Whether written demand was made on Kirby for the pipe.
Kirby fails to direct our attention to specific facts in the record that refute the findings of the trial court. Kirby contends that this is "not the kind of case to which the summary judgment procedure should be applied," because the pipe travelled through the hands of several parties that were involved in the buying and selling of oilfield pipe. For this proposition, Kirby invites comparison with Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.1963), in which the supreme court reversed and remanded a summary judgment procedure in a conversion case. In Valley, the controlling question was whether or not at the time Kinsel delivered 158 head of cattle to another cattle trader, he intended that title should pass. Id. at 20. The Valley court held that this question of whether the sale was conditional or absolute was a genuine issue of material fact and should not have been decided by summary judgment. Id. at 24.
Valley is distinguishable from the present dispute. In the typical conversion case, intent is not material to any issue involved except that of exemplary damages. Killian v. Trans Union Leasing Corp., 657 S.W.2d 189, 192 (Tex.App.San Antonio 1983, writ ref'd n.r.e.). The act of conversion is complete when a party unlawfully and wrongfully exercises dominion and control over the property of another to the exclusion of the right of possession of the owner or of the party entitled to possession of the property involved. Id.
The record shows that on August 12, 1981, the supervisor of purchasing and storage for Mitchell and its affiliate, Oilworld Supply Company ("Oilworld"), ordered 6700 feet of 95/8" 53.5 lb. P-110 LT & C Kawasaki seamless casing. Purchase order no. 81-10-12033 was assigned to the pipe, and certificates of inspection showing the heat identification numbers of the pipe were received by Mitchell's supervisor in December of 1981.[1] Oilworld operates as Mitchell's purchasing arm and is a stocking distributor of Kawasaki tubular products.
Upon notification of the arrival of the pipe at the Port of Houston in January of 1982, Mitchell's supervisor instructed Audas-Martin Port Trucking, Inc., to transport the pipe to Port Pipe Terminal, a storage yard in Harris County. In February of 1982, Mitchell's supervisor received an invoice and five bills of lading from Audas-Martin for their hauling of 159 joints of the above-specified pipe. The invoice referenced *925 purchase order no. 81-10-12033. Port Pipe Terminal sent Mitchell's supervisor a "materials received" report indicating that 159 joints of this particular pipe had been stored on rack J105 in their facility. Mitchell paid the invoice for the 159 joints of pipe in February of 1982.
Also in February of 1982, Kirby contracted with Petroleum Tubulars, Inc. ("PTI") for the purchase of approximately 11,000 feet of 95/8" 53.5 # P-110 LT & C pipe. The record also shows that PTI sent Kirby an invoice requesting payment for 6,500 feet, or 151 joints, of 95/8" 53.5 # P-110 LT & C Kawasaki pipe. The remainder of Kirby's order was filled by Sumitomo pipe, and the invoice was paid on March 8, 1982.
On March 9, 1982, Port Pipe Terminal was unable to locate certain pipe belonging to Mitchell. Following an inventory by Mitchell and Oilworld personnel, it was found that 151 joints of 95/8" 53.5 lb. LT & C Kawasaki seamless casing, plus other sizes and grades of pipe, were missing from Mitchell and Oilworld stock. The Special Crimes Division of the Houston Police Department was contacted by Mitchell's supervisor, and an investigation ensued. Subsequently, it was discovered that a Cayman Island Company named Pharoah, Ltd. had been selling pipe from Port Pipe Terminal without the knowledge or consent of the owners, and indictments against a former vice-president and inventory manager of Port Pipe Terminal for felony theft were issued.
On March 24, 1982, Oilworld employees Hawkins and Zinn investigated a report that missing Oilworld pipe had been stored at the Gator Hawk Pipe Plantation. At Gator Hawk, Hawkins found 151 joints of 95/8" 53.5 lb. Kawasaki pipe, mixed in with other pipe. He examined each joint of Kawasaki pipe and observed the numbers XX-XX-XXXXX stencilled in white paint on each one. Hawkins also compared the "heat numbers" on the pipe with those shown on the Kawasaki inspection certificates and found them to be the same. Photographs taken by Hawkins at Gator Hawk clearly show the Mitchell purchase order number and the identifying Kawasaki "heat numbers," as well as a number referencing a Kirby purchase order.
Uncontested evidence shows that Oilworld, acting for Mitchell, ordered and paid for the pipe, and at no time authorized or consented to its sale or transfer. The identity of the pipe is likewise uncontested, and we reject Kirby's assertion that the pipe constituted "fungible goods." The 151 joints of pipe found at Gator Hawk Plantation were stencilled with the same purchase number and "heat numbers" as the 151 joints of Oilworld pipe missing from Port Pipe Terminal. The fact that stencilling on the pipe showed a number referencing a Kirby purchase order negates Kirby's contention that no direct testimony identified the pipe as that purchased by Kirby from PTI.
Kirby argues that the Port Pipe Terminal inventory card that shows the pipe to have been stored on rack I-103B, rather than on rack J-105, as indicated on the materials received report, raises a genuine issue of material fact as to the pipe's identity. This minor discrepancy, when viewed in light of the other evidence of the pipe's identity, does not raise a genuine issue of fact sufficient to preclude summary judgment for conversion.
We hold Kirby's contentions that genuine issues of material fact exist as to the ownership and identity of the pipe to be without merit.
Kirby's assertion that there is a genuine issue of fact as to whether written demand for the pipe was made is unsupported by the record. By letter dated April 5, 1982, the president of Port Pipe Terminal requested Kirby to release the 151 joints of pipe to Oilworld. The letter informed Kirby that the pipe had been positively identified as Oilworld pipe, that Port Pipe Terminal had been experiencing theft of a considerable amount of pipe from its yard, and that the Federal Bureau of Investigation had determined that the 151 joints of pipe in Kirby's possession had been stolen from Port Pipe Terminal.
*926 Kirby admits that this letter was received before the pipe was transported to Oklahoma, at Kirby's request, on April 16, 1982. On that day, an attorney for Kirby responded to Port Pipe Terminal's letter, stating that Kirby had clear title to the pipe as a good faith purchaser from PTI and that disposition of the pipe had already been made. We find that Kirby fails to raise any genuine issue as to whether written demand was made for the pipe.
In a summary judgment procedure, the evidence must be viewed in the light most favorable to the party against whom judgment was rendered. Valley, 369 S.W.2d at 20. However, the statements and circumstances of this case, as described above, are subject to the single reasonable interpretation that Kirby unlawfully and wrongfully exercised dominion and control over Mitchell's property to the exclusion of Mitchell's right of possession. See Killian, 657 S.W.2d at 192. Kirby's first three points of error are overruled.
In its fourth, fifth, and sixth points of error, Kirby asserts that the trial court erred in granting the summary judgment for Mitchell because there are genuine issues of material facts regarding Kirby's affirmative defenses of equitable estoppel, statutory estoppel, entrustment, and negligent entrustment.
In order to show a disputed fact issue that will preclude the rendition of summary judgment for the plaintiff, the defendant must offer summary judgment proof on each element of at least one of the affirmative defenses it has pleaded. The mere pleading of an affirmative defense will not prevent the rendition of summary judgment for a plaintiff who has established conclusively the absence of disputed fact issues in his claim for relief. Clark v. Dedina, 658 S.W.2d 293, 296 (Tex.App. Houston [1st Dist.] 1983, no writ).
Kirby's mere recitation that Mitchell granted custody of the pipe to Oilworld as bailee, and that Port Pipe Terminal was in the business of selling pipe, is not sufficient to raise the affirmative defenses of equitable or statutory estoppel. The record fails to reveal any manner in which Port Pipe Terminal was clothed by Mitchell or Oilworld with an indicium of title to the pipe. Seigal v. Warrick, 214 S.W.2d 883, 884 (Tex.Civ.App.Amarillo 1948, writ ref'd n.r.e.). "Our courts have held that the owner of personal property will not be estopped by merely entrusting his possessions to another. Possession or control of property is not of itself sufficient for this purpose." Id.
The evidence before us shows that Oilworld operated as the purchasing and storage arm of Mitchell, and also acted as a distributor of Kawasaki tubular products. There is no showing that Oilworld ever consented to or authorized the sale or transfer of the pipe. No genuine issue of material fact is raised as to statutory estoppel under Tex.Bus. & Com.Code Ann. sec. 2.403(b) (Vernon 1968), because there is no evidence in support of Kirby's bare allegation that there was an entrustment by either Oilworld or Mitchell to a merchant dealing in oilfield pipe. The record reveals that Port Pipe Terminal's main business was the storage of oilfield pipe, and that it would only occasionally sell pipe that had been previously determined not to belong to those storing pipe at its storage yard.
Kirby's assertion that Mitchell's alleged negligent entrustment of the pipe to Port Pipe Terminal is an affirmative defense to a cause of action for conversion is meritless. As stated in Ligon v. E.F. Hutton & Co., 428 S.W.2d 434 (Tex.Civ.App.Dallas 1968, writ ref'd n.r.e.):
This is not a suit involving negligence. It is a conversion suit, and in such a case it is no defense that the defendant was not negligent, or that the plaintiff was negligent, or that the defendant acquired the plaintiff's property through the plaintiff's unilateral mistake, or that the defendant acted in complete innocence and perfect good faith. This has been the rule in Texas at least since 1884, when Sandford v. Wilson, 2 Willson Civ. Cases 188, was decided.
Id. at 438.
Kirby's fourth, fifth, and sixth points of error are overruled.
*927 In its seventh point of error, Kirby contends that the trial court erred in denying Kirby's motion for new trial based on newly discovered evidence.
The granting or denial of a motion for new trial rests largely within the sound discretion of the trial court, and its action should not be disturbed on appeal except for manifest abuse of that discretion. Neunhoffer v. State, 440 S.W.2d 395, 397 (Tex.Civ.App.San Antonio 1969, writ ref'd n.r.e.).
The "new evidence" consists of the depositions of the two former employees of Port Pipe Terminal who are presently under indictment for felony theft of oilfield pipe. An abridged version of this deposition testimony was filed with this Court, and no genuine issues of material fact are presented therein. In response to a question concerning the authority of various entities to sell oilfield pipe, both deponents assert their fifth amendment privilege.
Kirby's seventh point of error is overruled.
Kirby's eighth point of error avers that the trial court abused its discretion in severing Mitchell's claims against Kirby from the original action and from Kirby's counterclaims and cross-claims, because Mitchell's claim arises out of and turns upon the same facts.
The rule that any claim against a party may be severed and proceeded with separately refers to a claim that is a severable part of a controversy involving more than one cause of action. McGuire v. Commercial Union Insurance Co., 431 S.W.2d 347, 351 (Tex.1968); Tex.R.Civ.P. 41. As Kirby frequently points out, several entitles are involved in this litigation, and different causes of action may be brought among them. Although the same facts are applicable to much of the original controversy, the causes of action are not so intertwined as to involve identical facts and issues. See Straughan v. Houston Citizens Bank & Trust Co., 580 S.W.2d 29, 33 (Tex.Civ.App.Houston [1st Dist.] 1979, no writ).
Kirby's eighth point of error is overruled.
Kirby's final point of error asserts that the cost of the supersedeas bond, if any, should be taxed against Mitchell and Oilworld as a cost of appeal.
Kirby cites no precedent for the proposition that the winning party should pay the cost of protecting the losing party from execution of the judgment and instead, relies on an alleged agreement between itself and Mitchell that does not appear in the record of this cause.
Kirby's final point of error is overruled.
The judgment of the trial court is affirmed.
Judgment rendered and opinion delivered November 21, 1985.
NOTES
[1] The purchase order number is customarily stencilled onto each joint of pipe at the mill, in order to identify the pipe during shipment, unloading, and storage. Each joint of pipe produced by Kawasaki Steel Corporation is marked with a number identifying the particular unit of melted steel from which it was produced. This number is commonly referred to as the "heat number." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2436906/ | 964 N.E.2d 158 (2012)
357 Ill. Dec. 795
Walter FENNELL, Plaintiff-Appellee,
v.
ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellant.
No. 5-10-0504.
Appellate Court of Illinois, Fifth District.
January 3, 2012.
*161 Michael C. Hermann, Thomas R. Peters, Boyle Brasher LLC, Belleville, IL, for Appellant.
William P. Gavin, Gavin Law Firm, Belleville, IL, for Appellee.
OPINION
Justice CHAPMAN delivered the judgment of the court, with opinion.
¶ 1 The defendant, Illinois Central Railroad Company, appeals a trial court order denying its motion to dismiss the plaintiff's complaint in favor of a Mississippi forum. The defendant argues that the court abused its discretion. We affirm.
¶ 2 The plaintiff, Walter Fennell, worked in various capacities for the defendant from 1970 until 2007. In his complaint, he alleges that he suffers from respiratory ailments as a result of exposure to asbestos, diesel exhaust, sand, environmental tobacco smoke, and toxic dusts, fumes, and gases. He alleges that this exposure occurred throughout the course of his 37-year career with the defendant. The plaintiff resides in Hazelhurst, Mississippi, located in Copiah County. While working for the defendant, he was based at its facility in Jackson, Mississippi, which is in Hinds County. He worked on trains that ran "mostly in and out of Jackson, Mississippi, to Gulfport, Louisiana, and McComb, Mississippi." He also alleges that he "went to Memphis, Tennessee, Mobile, Alabama, and New Orleans" and attended engineering school in Homewood, Illinois.
¶ 3 In 2002, the plaintiff and 84 other plaintiffs filed an action against the defendant in Pike County, Mississippi. All 85 plaintiffs lived in Mississippi or Louisiana and were current or former employees of the defendant. The allegations in that litigation were essentially the same as the allegations in the case before us. In June 2006, the Mississippi trial court granted a motion to dismiss filed by the defendant. The court dismissed the action without prejudice. The record in this appeal does not reveal the basis for the defendant's motion to dismiss the Mississippi action.
¶ 4 In 2009, the plaintiff filed the instant lawsuit in St. Clair County, Illinois. He brought his claims under the Federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq. (2000)) and the Locomotive Boiler Inspection Act (49 U.S.C. § 20701 et seq. (2000)). As previously stated, he alleged that he developed respiratory ailments as a result of exposure to asbestos *162 and other toxic substances over the course of his employment with the defendant.
¶ 5 The defendant filed a motion to dismiss on the basis of interstate forum non conveniens. The defendant argued in its motion, as it does in this appeal, that trial in the plaintiff's home county of Copiah County, Mississippi, would be more convenient for all parties. The defendant argued that dismissal in favor of a Mississippi forum was warranted because (1) the plaintiff was a lifelong resident of Mississippi who worked out of the defendant's Jackson, Mississippi, facility, (2) the plaintiff did not allege that any part of his injury occurred in St. Clair County or elsewhere in Illinois, (3) numerous potential witnesses lived in Mississippi, and (4) trial in Copiah County, Mississippi, would be more convenient for the defendant's representatives most likely to testify or attend the trial, who were based at its facility in Memphis, Tennessee.
¶ 6 In support of its motion, the defendant attached interrogatories in which the plaintiff identified 13 individuals who were at least potential witnesses, all of whom live in Mississippi. These individuals include the plaintiff's wife and three adult children, four physicians who had treated the plaintiff, and five of his coworkers. We note that the plaintiff identified these individuals in response to questions asking him to identify family members, treating physicians, and coworkers. It is unclear how many of these individuals the plaintiff intends to call as witnesses. We further note that the defendant has not alleged that it intends to call any of these individuals as witnesses.
¶ 7 The defendant also attached the affidavit of Charles Garrett, the defendant's risk mitigation manager for occupational disease claims. Garrett stated that he and several other Illinois Central representatives likely to attend the trial or testify live in or near Memphis, Tennessee. He stated that it would be a hardship for these employees to travel to Belleville for a St. Clair County trial and that it would be "substantially more convenient" for them to travel to Copiah County, Mississippi. He did not identify any witnesses or representatives likely to attend the trial other than himself, and he did not elaborate on the reasons travel to Copiah County would be more convenient. As we will discuss in more detail later, the two counties are nearly the same distance from Memphis.
¶ 8 The plaintiff filed a response to the defendant's motion to dismiss. The plaintiff pointed out that the defendant was represented in this lawsuit by a Belleville law firm that had previously represented it in similar litigation in Illinois, Mississippi, Louisiana, and Tennessee. The plaintiff emphasized that, as a result of this representation, the defendant's counsel had collected numerous items of evidence that would be relevant in this case. This evidenceconsisting of documents and tangible itemswas voluminous and was stored in the Belleville offices of the defendant's counsel. In support of these allegations, the plaintiff attached photographs of some of the evidence involved and an affidavit in which his own attorney stated that he had represented other former employees of the defendant in numerous prior actions in which the same Belleville law firm had represented the defendant.
¶ 9 In addition, the plaintiff identified two witnesses that he intends to call, both of whom are employees of the defendant. Specifically, he intends to call Lyndle Burton, the defendant's manager of industrial hygiene, and Charles Garrett, the defendant's risk mitigation manager for occupational disease claims. Garrett, as previously noted, is a resident of Memphis, Tennessee. Burton is a resident of Joliet, Illinois. The plaintiff also identified Dr. *163 Alvin Schonfield as an expert witness. Dr. Schonfield resides in Chicago, Illinois.
¶ 10 The court denied the defendant's motion to dismiss in a written order. The court expressly found that the St. Clair County court would be a convenient forum because (1) "almost 80 years of relevant evidence" is located "just five miles from the St. Clair County Courthouse," (2) Burton and Garrett, whose testimony would be important to the plaintiff, could be compelled to testify if the trial were held in Illinois but not if it were held in Mississippi, (3) St. Clair County is closer and more convenient for the plaintiff's expert witness from Chicago, and (4) the citizens of St. Clair County have an interest in litigation involving asbestos and other toxic substances in railcars that travel throughout the country. In addition, the court found as follows: "St. Clair County no longer has congested trial dockets. In fact, there are so few trials that as a matter of policy in Courtroom 404 if the attorneys agree on a jury week they get it. Guaranteed!" The defendant then filed the instant appeal pursuant to Illinois Supreme Court Rule 306(a)(2) (eff. Feb. 26, 2010).
¶ 11 Forum non conveniens is an equitable doctrine that allows a trial court to decline jurisdiction if trial in a different forum would be more convenient and "`would better serve the ends of justice.'" Langenhorst v. Norfolk Southern Ry. Co., 219 Ill.2d 430, 441, 302 Ill.Dec. 363, 848 N.E.2d 927, 934 (2006) (quoting Vinson v. Allstate, 144 Ill.2d 306, 310, 162 Ill.Dec. 43, 579 N.E.2d 857, 859 (1991)). The doctrine is applicable whether the defendant seeks transfer to a different county within the state (intrastate forum non conveniens) or dismissal in favor of a proposed forum in another state (interstate forum non conveniens). Both types of forum cases are governed by the same principles. Dawdy v. Union Pacific R.R. Co., 207 Ill.2d 167, 176, 278 Ill.Dec. 92, 797 N.E.2d 687, 696 (2003).
¶ 12 Although this doctrine gives trial courts the discretion to decline jurisdiction, they should do so "only in exceptional circumstances." (Emphasis omitted.) Langenhorst, 219 Ill.2d at 442, 302 Ill.Dec. 363, 848 N.E.2d at 934. This is because a plaintiff "has a substantial interest in choosing the forum where his rights will be vindicated." First American Bank v. Guerine, 198 Ill.2d 511, 517, 261 Ill.Dec. 763, 764 N.E.2d 54, 58 (2002). The plaintiff's choice, therefore, should be disturbed only if a defendant can demonstrate that the plaintiff's chosen forum is inconvenient to the defendant and that a different forum would be more convenient to all parties. Langenhorst, 219 Ill.2d at 444, 302 Ill.Dec. 363, 848 N.E.2d at 935. The burden of proving transfer or dismissal in favor of a different forum is on the defendant (Langenhorst, 219 Ill.2d at 444, 302 Ill.Dec. 363, 848 N.E.2d at 935), and it is a difficult burden to meet (Langenhorst, 219 Ill.2d at 443, 302 Ill.Dec. 363, 848 N.E.2d at 935).
¶ 13 In determining whether a defendant has met this burden, trial courts must consider various factors identified by our supreme court. These include both private-interest factors related to the convenience of the parties and public-interest factors related to the efficient administration of the courts. Erwin v. Motorola, Inc., 408 Ill.App.3d 261, 274, 349 Ill.Dec. 1, 945 N.E.2d 1153, 1166 (2011). The private-interest factors include: (1) the convenience of the parties, (2) the comparative ease of access to witnesses, documents, and other evidence, and (3) "all other practical problems that make trial of a case easy, expeditious and inexpensive." Guerine, 198 Ill.2d at 516, 261 Ill.Dec. 763, 764 N.E.2d at 58. The public-interest factors include: (1) the interest in deciding local *164 controversies locally, (2) the unfairness of imposing the expense of a trial and the burden of jury duty on a county with little or no connection to the litigation, and (3) the relative court congestion. Guerine, 198 Ill.2d at 516-17, 261 Ill.Dec. 763, 764 N.E.2d at 58.
¶ 14 One additional consideration is the plaintiff's choice of forum. As previously discussed, the plaintiff has a substantial interest in choosing the forum in which to have his claims resolved. Thus, the plaintiff's choice of forum is always accorded some deference. Brown v. Cottrell, Inc., 374 Ill.App.3d 525, 529, 312 Ill.Dec. 663, 871 N.E.2d 63, 67 (2007) (citing Gridley v. State Farm Mutual Automobile Insurance Co., 217 Ill.2d 158, 170, 298 Ill.Dec. 499, 840 N.E.2d 269, 277 (2005)). Where, as here, the plaintiff's chosen forum is neither his home county nor the county in which the events giving rise to his cause of action occurred, this choice is accorded less deference than it otherwise would receive. Langenhorst, 219 Ill.2d at 442-43, 302 Ill.Dec. 363, 848 N.E.2d at 934. However, less deference does not mean no deference. Brown, 374 Ill.App.3d at 529, 312 Ill.Dec. 663, 871 N.E.2d at 67 (citing Langenhorst, 219 Ill.2d at 448, 302 Ill.Dec. 363, 848 N.E.2d at 938). Unless, on balance, the relevant factors strongly favor transfer to the defendant's proposed forum, the plaintiff's choice should not be disturbed. Langenhorst, 219 Ill.2d at 444, 302 Ill.Dec. 363, 848 N.E.2d at 935.
¶ 15 The trial court must consider and balance all relevant forum factors without placing undue emphasis on any one factor. Each case is unique and must be decided based on its own particular set of facts. Langenhorst, 219 Ill.2d at 443, 302 Ill.Dec. 363, 848 N.E.2d at 935. On appeal from an order granting or denying a forum motion, we will reverse only if the trial court abused its considerable discretion in balancing the relevant factors. Langenhorst, 219 Ill.2d at 441-42, 302 Ill. Dec. 363, 848 N.E.2d at 934. This occurs if no reasonable person could take the view taken by the trial court. Langenhorst, 219 Ill.2d at 442, 302 Ill.Dec. 363, 848 N.E.2d at 934.
¶ 16 Turning to the facts of the case before us, we will first consider the private-interest factors. These factors include the convenience of the parties, the comparative ease of access to witnesses and evidence, and all of the other practical considerations that make trying a case easy, expeditious, and inexpensive.
¶ 17 We first consider the convenience of the parties. The plaintiff in this case resides in Copiah County, Mississippi, the defendant's proposed alternative forum. However, the defendant must demonstrate inconvenience to the defendant; it cannot prevail by pointing to inconvenience to the plaintiff. Langenhorst, 219 Ill.2d at 444, 302 Ill.Dec. 363, 848 N.E.2d at 935. We find that the defendant has failed to meet its burden of showing that trial in St. Clair County would be less convenient for it than trial in Copiah County, Mississippi. The defendant has not identified any of its own witnesses or representatives in Mississippi who would need to attend the trial, and the record demonstrates that the defendant's Memphis-based representatives will face a similar degree of inconvenience attending trial in either forum.
¶ 18 We acknowledge that the defendant presented the affidavit of one of those representatives, who specifically stated that attending trial in Copiah County would be "substantially more convenient" for him and the other unnamed representatives. However, a search of MapQuest shows that the distance between Memphis, Tennessee, and Copiah *165 County seat Hazelhurst, Mississippi, is 245 miles, while the distance between Memphis and Belleville, Illinois, is 268 miles. MapQuest, http://www.mapquest.com (last visited Oct. 21, 2011). We may take judicial notice of matters that are readily verifiable, such as the distances between cities. See Hoskin v. Union Pacific R.R. Co., 365 Ill.App.3d 1021, 1024-25, 303 Ill.Dec. 459, 851 N.E.2d 646, 650 (2006) (citing Dawdy, 207 Ill.2d at 177, 278 Ill.Dec. 92, 797 N.E.2d at 696). The defendant offers no support for Garrett's bald assertion that the 23 additional miles would make traveling to St. Clair County substantially more burdensome than traveling to Copiah County. As a practical matter, travel to either forum would involve a drive of approximately half a day. We do not believe this factor favors either forum.
¶ 19 We will next consider the relative ease of access to witnesses and other sources of evidence. The defendant relies heavily on the fact that there are 13 individuals in Mississippi who are at least potential witnesses, while the plaintiff emphasizes the voluminous documentary evidence in the possession of the defendant's Belleville attorneys. While we agree with the parties that these facts are relevant, we place far less weight on them than do the parties.
¶ 20 As previously discussed, the 13 potential Mississippi witnesses are the plaintiff's treating physicians, coworkers, and family members. Obviously, Copiah County, Mississippi, would be the more convenient forum for any of these individuals who are actually called to testify at trial. Although the record does not indicate which, if any, of these witnesses the plaintiff intends to call, it is likely that at least some of them will be called. The plaintiff will need the testimony of at least some of his medical providers to establish that he suffered damages linked to his alleged exposure to toxic substances on the job. Aside from the plaintiff's medical providers, however, we cannot speculate as to how many of these potential witnesses may be called or how important their testimony will be to the plaintiff's case. See Boner v. Peabody Coal Co., 142 Ill.2d 523, 533, 154 Ill.Dec. 662, 568 N.E.2d 883, 888 (1991); Brant v. Rosen, 373 Ill.App.3d 720, 728, 311 Ill.Dec. 558, 869 N.E.2d 232, 240 (2007).
¶ 21 We also emphasize the fact that the defendant has not indicated that it intends to call any of these individuals as witnesses. As we have discussed, the defendant cannot overcome the plaintiff's choice of forum by demonstrating that the plaintiff will be inconvenienced. Thus, it is appropriate to accord less weight to this list of potential Mississippi witnesses than we otherwise might.
¶ 22 The only other witnesses identified in the record are the plaintiff's expert, Dr. Schonfield, and two of the defendant's employees, Garrett and Burton. Dr. Schonfield is a Chicago resident for whom trial in St. Clair County will be much closer and more convenient. Although we consider his convenience, we place very little weight on this consideration. See Bland v. Norfolk & Western Ry. Co., 116 Ill.2d 217, 227, 107 Ill.Dec. 236, 506 N.E.2d 1291, 1295-96 (1987). Trial in St. Clair County would also be more convenient for Burton, a resident of Joliet, Illinois. As previously discussed, Garrett lives in Memphis, Tennessee, and trial in either proposed forum would be equally convenient.
¶ 23 The testimony of witnesses is not the only source of evidence we consider in evaluating this factor. As previously noted, the plaintiff has placed heavy emphasis on the need to introduce documentary evidence relevant to the foreseeability of his injuries. This evidence is in the Belleville offices of the defendant's law firm. This *166 court has found the location of documentary evidence to be a relevant but insignificant factor because it is relatively easy for witnesses to bring documents with them to the trial. Brown v. Cottrell, Inc., 374 Ill. App.3d 525, 532, 312 Ill.Dec. 663, 871 N.E.2d 63, 69 (2007).
¶ 24 Here, the plaintiff argues that it would be difficult to bring the required documents to a trial in Copiah County, Mississippi, due to the volume of the necessary documents and the age and frailty of some of the relevant documents. He specifically points to a collection of documents from the 1930s known as the "Alton Railroad Documents." We note, however, that the record shows that attorneys for both parties have tried numerous similar cases in Tennessee, Mississippi, and Louisiana over the years. This demonstrates that while it is obviously more convenient to bring these documents to a trial in St. Clair County, transporting them to an out-of-state forum is not an insurmountable burden.
¶ 25 Considering the comparative ease of access to witnesses and documentary evidence in this case, we do not believe this factor strongly favors either forum. The need for the plaintiff to present medical evidence from his Mississippi medical providers tips the balance very slightly in favor of a Mississippi forum, but we do not believe that the defendant carried its burden of demonstrating that this factor strongly favors its chosen forum.
¶ 26 The final private-interest factor we consider is all of the other practical issues that make a case easy, expeditious, and inexpensive to litigate. This factor includes the availability of compulsory process to compel the testimony of unwilling witnesses and the feasibility of viewing the site of the incident giving rise to the plaintiff's claim, if appropriate. Guerine, 198 Ill.2d at 516, 261 Ill.Dec. 763, 764 N.E.2d at 58. We may also consider the location of the parties' attorneys, although this is not a weighty consideration. Dawdy, 207 Ill.2d at 179, 278 Ill.Dec. 92, 797 N.E.2d at 697; Boner, 142 Ill.2d at 534, 154 Ill.Dec. 662, 568 N.E.2d at 888.
¶ 27 As previously noted, the trial court found that the defendant's agents, Burton and Garrett, would be subject to compulsory process if the trial is held in Illinois but would not be subject to compulsory process if the trial is in Mississippi, although we note that it appears likely that the defendant also intends to call both of these people as witnesses. The defendant argues that the plaintiff's doctors, family members, and coworkers would not be subject to compulsory process in Illinois; however, as previously discussed, the defendant has not specifically alleged that it intends to call any of these people, and we can presume that the plaintiff will call some of his medical providers.
¶ 28 We also consider the feasibility of a jury view. Here, the plaintiff has not alleged that he suffered a site-specific injury. Rather, he alleged that he suffers from respiratory ailments as a result of cumulative exposure to various toxic substances over the course of his 37-year career working for the defendant. Much of his work was performed aboard moving trains. We acknowledge that our supreme court has held that courts must consider the possibility of a jury view of a relevant site even if the probability of such a view is very slim. Dawdy, 207 Ill.2d at 178-79, 278 Ill.Dec. 92, 797 N.E.2d at 697. Nevertheless, we need not give much consideration to this factor when a jury view is not possible because the injury is not site-specific. See Brown, 374 Ill.App.3d at 534, 312 Ill.Dec. 663, 871 N.E.2d at 70.
¶ 29 Finally, we can consider the fact that both parties' attorneys are based *167 in St. Clair County, although, as noted, this is not a particularly significant factor. On balance, we find that this factor weighs slightly in favor of a St. Clair County trial.
¶ 30 We next consider the public-interest factors. These include the interest in deciding local controversies locally, the unfairness of imposing the expense of trial and the burden of jury duty on residents of a county with little connection to the litigation, and the comparative court congestion in the alternative fora. We first note that this case does not involve a controversy of a particularly local nature. The plaintiff seeks relief under two federal statutory schemes from a defendant who operates rail lines in multiple states. This is not the type of inherently local controversy that must be resolved in either Mississippi or Illinois. See Hoskin, 365 Ill. App.3d at 1025-26, 303 Ill.Dec. 459, 851 N.E.2d at 650-51. This factor, therefore, favors neither forum.
¶ 31 In addition, we do not believe it would be unfair to burden residents of either St. Clair County or Copiah County with the expense of a trial in this matter or the burden of jury duty. Both counties have a legitimate interest in litigating this case because the problems of exposure to asbestos and other toxins by railroad workers is a national, not local, problem. See Hoskin, 365 Ill.App.3d at 1026, 303 Ill.Dec. 459, 851 N.E.2d at 651. However, Copiah County has an additional interest in resolving the claim of one of its residents. We also note that the plaintiff alleges that his work-related exposure to toxic substances took place primarily in Mississippi and Louisiana, although it is not clear how muchif anytook place within Copiah County itself. This factor weighs somewhat in favor of trial in Copiah County.
¶ 32 Finally, we compare the burdens of crowded dockets in both counties. Here, the defendant presented evidence that a higher number of cases are filed in St. Clair County each year than in Copiah County. However, it did not present any evidence as to how long it takes to resolve cases in Copiah County. Court congestion is not a significant factor, especially when a defendant cannot show that one forum can resolve the case more quickly than the other. Guerine, 198 Ill.2d at 517, 261 Ill.Dec. 763, 764 N.E.2d at 58. Moreover, the trial court expressly found that its dockets were not overburdened. We give deference to this express finding because the trial court is in a better position than we are to assess the burdens of its own docket. Boner, 142 Ill.2d at 538-39, 154 Ill.Dec. 662, 568 N.E.2d at 891; see also Langenhorst, 219 Ill.2d at 452, 302 Ill.Dec. 363, 848 N.E.2d at 940 (giving deference to a court's express finding that overcrowded dockets are not a concern).
¶ 33 Weighing all relevant public- and private-interest factors, we find that the trial court properly concluded that the defendant failed to meet its burden of demonstrating that the factors strongly favor dismissal in favor of a Mississippi forum. The defendant, however, argues that the instant case is analogous to the supreme court's decision in Gridley and this court's decisions in Laverty v. CSX Transportation, Inc., 404 Ill.App.3d 534, 353 Ill.Dec. 481, 956 N.E.2d 1 (2010), and Skidmore v. Gateway Western Ry. Co., 366 Ill.App.3d 238, 304 Ill.Dec. 401, 852 N.E.2d 857 (2006). In all three of these cases, the reviewing court found that a trial court abused its discretion in denying a forum motion. We are not persuaded.
¶ 34 We find Gridley and Skidmore readily distinguishable. Gridley involved allegations that the defendant had violated *168 Louisiana statutes by failing to obtain a salvage title on a vehicle that had been involved in an accident and handled as a total loss before the plaintiff purchased the vehicle. Gridley, 217 Ill.2d at 171, 298 Ill.Dec. 499, 840 N.E.2d at 278. The supreme court emphasized both Louisiana's interest in applying Louisiana law in its own courts and Illinois's interest in not being burdened with the need to apply the law of another state in determining that this was the type of dispute that should be resolved locally by a Louisiana court. Gridley, 217 Ill.2d at 175, 298 Ill.Dec. 499, 840 N.E.2d at 280. Skidmore involved a collision between an automobile and a train at a railroad crossing in Missouri. Skidmore, 366 Ill.App.3d at 239, 304 Ill.Dec. 401, 852 N.E.2d at 859. Our supreme court has previously found that automobile accidents have an inherently local flavor. Dawdy, 207 Ill.2d at 183, 278 Ill.Dec. 92, 797 N.E.2d at 699. By contrast, as previously discussed, this case involves a controversy with a decidedly nonlocal flavor.
¶ 35 In addition, in both Gridley and Skidmore, the parties had identified numerous witnesses they intended to call, most of whom were residents of the defendants' chosen fora. See Gridley, 217 Ill.2d at 174, 298 Ill.Dec. 499, 840 N.E.2d at 279 (noting that most witnesses lived in Louisiana); Skidmore, 366 Ill.App.3d at 241-42, 304 Ill.Dec. 401, 852 N.E.2d at 861 (noting that all witnesses lived in the Missouri county where the accident took place). This case, by contrast, involves few specified witnesses, including two who live in Illinois.
¶ 36 Laverty merits further discussion. That case was brought under FELA and involved a claim that the plaintiff's decedent had contracted mesothelioma as a result of cumulative exposure to asbestos over the course of his career working for the defendant railroad. Laverty, 404 Ill. App.3d at 534, 353 Ill.Dec. 481, 956 N.E.2d at 3. The defendant there filed a forum non conveniens motion, arguing that trial in Michigan would be more convenient. Laverty, 404 Ill.App.3d at 535, 353 Ill.Dec. 481, 956 N.E.2d at 4. The trial court denied the motion, but a panel of this court reversed that decision. Laverty, 404 Ill. App.3d at 534, 353 Ill.Dec. 481, 956 N.E.2d at 3.
¶ 37 Some facts relevant to resolution of the defendant's forum motion in Laverty were similar to the facts before us. Neither the plaintiff nor the decedent was an Illinois resident. The plaintiff was a resident of Texas. The decedent was a resident of Texas at the time of his death, but he was a resident of Michigan and Ohio while he worked for the defendant railroad. Laverty, 404 Ill.App.3d at 535, 353 Ill.Dec. 481, 956 N.E.2d at 3. The defendant argued that most of the decedent's alleged exposure to asbestos occurred in Michigan (although we note that the Laverty court does not discuss whether the record supported this claim). Laverty, 404 Ill.App.3d at 535, 353 Ill.Dec. 481, 956 N.E.2d at 4. As here, none of the injury was alleged to have occurred in Illinois. Laverty, 404 Ill.App.3d at 538, 353 Ill.Dec. 481, 956 N.E.2d at 6.
¶ 38 There were also some important distinctions. In Laverty, all witnesses identified by either party lived outside of Illinois (although we note that the Laverty court did not discuss where they did live or indicate whether all or most relevant witnesses were in Michigan). Laverty, 404 Ill.App.3d at 535-36, 353 Ill.Dec. 481, 956 N.E.2d at 4. Indeed, the plaintiff there conceded that there were no Illinois witnesses. Laverty, 404 Ill.App.3d at 539, 353 Ill.Dec. 481, 956 N.E.2d at 7. Here, Lyndle Burton, an employee of the defendant and a witness identified as important by both parties, lives in Joliet, Illinois. The plaintiff's *169 expert, Dr. Schonfield, also lives in Illinois, residing in Chicago.
¶ 39 Additionally, in Laverty, the court considered the fact that none of the identified witnesses would be subject to subpoena power in Illinois. Laverty, 404 Ill. App.3d at 538, 353 Ill.Dec. 481, 956 N.E.2d at 6. In the case before us, Charles Garrett, who both the plaintiff and the defendant have indicated would be called as a witness, lives in Memphis, Tennessee, as do several other unidentified Illinois Central representatives who Garrett attests would testify and/or attend the trial. Here, in contrast to Laverty, the trial court found that both Garrett and Burton would be subject to subpoena power in Illinois but not in Mississippi.
¶ 40 Unlike the defendant in Laverty, the defendant here has not identified any of its own witnesses or representatives who live in its proposed alternative forum of Mississippi. Furthermore, Garrett's bald assertion that Mississippi is "substantially more convenient" than Illinois for the Tennessee witnesses, without any factual basis, does nothing to demonstrate how the plaintiff's chosen forum of Illinois is inconvenient to the defendant. This is particularly true in light of the fact that St. Clair County, Illinois, and Copiah County, Mississippi, are roughly the same distance from Memphis, Tennessee.
¶ 41 A final distinction between the case before us and Laverty is that here, there is no need to consider the possibility of a jury view of the situs of the injury. The plaintiff did not suffer a site-specific injury, as much of his work was performed aboard moving trains. Thus, a jury view would not be possible.
¶ 42 As we have discussed at length, it is the defendant's burden to show both that the plaintiff's chosen forum is inconvenient to the defendant and that the defendant's proposed alternative forum is substantially more convenient for all parties. For the reasons we have discussed, we conclude that the defendant here has failed to meet its burden of demonstrating either of these propositions. We find nothing in Laverty, Gridley, or Skidmore to alter our conclusion.
¶ 43 For the foregoing reasons, we conclude the trial court properly exercised its discretion in denying the defendant's forum motion. Thus, we affirm the court's ruling.
¶ 44 Affirmed.
Presiding Justice DONOVAN concurred in the judgment and opinion.
Justice WELCH dissented, with opinion.
¶ 45 Justice WELCH, dissenting:
¶ 46 I dissent. It is my belief that the circuit court abused its discretion when it denied the defendant's motion to dismiss based on the grounds of forum non conveniens. It is the duty of this court to give the circuit court guidance. Although Illinois has not adopted horizontal stare decisis, the appellate courts of this district should interpret findings of the Illinois Supreme Court in such a way as to give guidance to the circuit courts. The Fifth District's most recent case involving forum non conveniens is Laverty v. CSX Transportation, Inc., 404 Ill.App.3d 534, 353 Ill. Dec. 481, 956 N.E.2d 1 (2010). Laverty is a case very similar to this case and should be instructive.
¶ 47 The majority discusses all of the private-and public-interest factors and the amount of deference that must be given to each factor. A reading of the majority opinion shows how the circuit court abused its discretion when it denied the defendant's motion. In this case, there was not one factor that the supreme court has advised the appellate courts to consider that *170 could only be considered slight deference or very slight deference. It is difficult, if not impossible, to find any nexus to Illinois, let alone to St. Clair County, in a forum non conveniens setting. Therefore, I dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1772090/ | 624 S.W.2d 620 (1981)
MEYERLAND COMMUNITY IMPROVEMENT ASSOCIATION, et al., Appellants,
v.
Morris BELILOVE, et ux., Appellees.
No. C2655.
Court of Appeals of Texas, Houston (14th Dist.).
September 17, 1981.
Rehearing Denied October 8, 1981.
Aubrey D. Martin, Jr., Harvey J. Heller, Byrnes, Myers, Adair, Campbell & Sinex, Houston, for appellants.
Gerald A. Linder, Casey, McStay, Linder & Miller, Houston, for appellees.
Before J. CURTISS BROWN, C. J., and MILLER and MORSE, JJ.
MORSE, Justice.
Plaintiff-Appellants, Meyerland Community Improvement Association, Maureen Reeves and William Phillips, appealed from a trial court judgment awarding attorney's fees to Defendant-Appellees, Morris Belilove and Patricia Belilove. We agree there was no basis for such award.
Plaintiff-Appellants had filed a petition seeking to enforce the restrictive covenants of the Meyerland Subdivision in Harris County, Texas, alleging violation thereof by Defendants' replacement of roofing material without getting prior approval by the architectural control committee; Plaintiffs also sought attorney's fees under Tex.Rev. Civ.Stat.Ann. art. 1293b (Vernon 1980).
The Defendants answered with a variety of defenses and asked for attorney's fees under said Article 1293b. Upon trial, the jury found against Plaintiffs' special issues: (1) that Defendants "altered" their residence and (2) that there was a reasonable determination by the architectural control committee of Defendants' violation of the restrictions. No issues were submitted or requested by Defendants as to any breach of the restrictions by Plaintiff-Appellants. Over objection, special issues were submitted as to the amounts of attorney's fees which should be awarded to the Defendants. The trial court entered judgment that Plaintiffs take nothing and pay Defendants the amounts of their attorney's fees found by the jury and court costs.
Appellants assert that the trial court erred in submitting issues to the jury as to, and in awarding, attorney's fees to the Defendant-Appellees under Tex.Rev.Civ.Stat. Ann. art. 1293b (Vernon 1980). Article 1293b allows for the recovery of reasonable attorney's fees only if a party meets the basis requirements. Townplace Homeowner's Association, Inc. v. McMahon, 594 S.W.2d 172 (Tex.Civ.App.Houston [1st Dist.] 1980, writ ref'd n. r. e.); See also Inwood North Homeowners' Association v. Meier, 625 S.W.2d 742 (Tex.Civ.App. Houston [1st Dist.] 1981). Article 1293b subsection (a) provides:
*621 In an action based on breach of a restrictive covenant pertaining to real property, the court shall allow a prevailing party who asserted the action for breach of a restrictive covenant, reasonable attorney's fees, in addition to his costs and claim. [emphasis added]
From the statutory wording it is clear that the Defendant-Appellees did not "assert" and prevail in an "action for breach of a restrictive covenant," but only successfully defended the cause of action brought by the Plaintiff. For this reason, we hold that Appellees were not entitled to recover attorney's fees under Article 1293b.
Appellees further contend that even if they are not entitled to attorney's fees under Article 1293b, they are entitled to recover attorney's fees under Tex.Rev.Civ. Stat.Ann. art. 2226 (Vernon Supp.1980-1981). Article 2226 allows attorney's fees to be recovered on a valid claim founded on an oral or written contract. Appellees argue that the restrictive covenants at issue in the suit are contractual and that Article 2226 thus applies. However, neither by prior demand, nor in their pleadings, nor by requested special issues or findings, have the Appellees presented a claim as required by the statute. Therefore we hold that Appellees are not entitled to recover attorney's fees under Article 2226, or otherwise.
Accordingly, Appellant's contention that the amount of attorney's fees under Article 1293b must be determined by the court, and that therefore, the trial court erred in submitting the issue of attorney's fees to the jury, need not be addressed.
All other arguments of the Appellees have been carefully considered and overruled.
The Judgment is reversed in part and rendered so as to eliminate the award of attorney's fees to the Defendants-Appellees.
Reversed and rendered in part and Affirmed in part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2436898/ | 701 S.W.2d 48 (1985)
Peggy ALEXANDER, Appellant,
v.
Ric A. ALEXANDER and Leota Alexander, as Guardian of the Estate of Cody F. Alexander, a Minor, Appellees.
No. 05-85-00344-CV.
Court of Appeals of Texas, Dallas.
November 13, 1985.
Rehearing Denied December 11, 1985.
*49 James L. Schutza, Vernon, McKinley, Lybrand & Dubner, Dallas, for appellant.
Leota H. Alexander, Alexander & Mauzy, Dallas, for appellees.
Before SPARLING, GUILLOT and MALONEY, JJ.
GUILLOT, Justice.
This appeal arises from a dispute over the proceeds of a life insurance policy on the life of Vic L. Alexander, now deceased. By granting motion for summary judgment, the trial court ordered the proceeds of the policy paid to Ric and Cody Alexander, children of the deceased, rather than to Peggy Alexander, who was named as beneficiary of the policy and who was Vic's wife at the time of his death. In a single point of error, Peggy contends that the summary judgment was improper because the children had no interest in the policy and were not, therefore, entitled to its proceeds. *50 We do not agree and, consequently, affirm the judgment of the trial court.
The relevant facts are not in dispute. On September 17, 1979, Vic purchased a policy of life insurance, numbered N3686190, with a face value of $100,000 from Aetna Life Insurance Company ("the original policy"). At the time of this purchase, Vic was married to Leota and they had two minor children, Ric and Cody. On May 8, 1980, Vic and Leota were divorced. Contemporaneous with the divorce, Vic and Leota entered into a settlement agreement which was incorporated into the divorce decree. The agreement provided:
Husband agrees to name RIC ANTHONY ALEXANDER and CODY FLYNN ALEXANDER as beneficiaries of his policy # N3686190 with Aetna Life Insurance, and further agrees to retain said children as beneficiaries of this policy and to keep this policy in full force and effect until each child has reached the age of twenty-two (22) years, has married or has been otherwise emancipated. [Emphasis added].
* * * * * *
Each child designated above is a third party beneficiary of the covenants made in this Section for his or her benefit, and may, in the child's own name or by next friend or other representative, enforce the performance of those covenants.
At the time of the divorce, the original policy was in full force and effect and had a face value of $100,000. In June of 1981, Vic married Peggy. On October 12, 1981, Vic requested conversion of $50,000 of the $100,000 of the original policy to whole life insurance. On November 17, 1981, in accordance with Vic's request, Aetna issued policy # W-4001902 to Vic in the amount of $50,000 ("converted policy"). By reason of the conversion, the original policy remained in effect but was reduced from $100,000 to $50,000. Peggy was listed as beneficiary on the converted policy. Vic died on September 3, 1983. On that date, both children were still under the age of 22, had not married, and had not otherwise been emancipated, although Ric was over the age of 18. There is no dispute that the $50,000 in proceeds from the original policy should be paid to the children. Instead, the question is whether the provisions of the settlement agreement incorporated into the divorce decree apply to the $50,000 converted policy and, if so, whether the proceeds of that policy may be paid to Ric, who was no longer a minor at the time of Vic's death.
This dispute must be resolved within the framework of certain basic principles of contract and insurance law. Ordinarily, an insured has the right to change the beneficiary named in his policy and a beneficiary has no vested interest in the proceeds of the policy prior to the death of the insured. Box v. Southern Farm Bureau Life Insurance Co., 526 S.W.2d 787, 789 (Tex.Civ.App.Corpus Christi 1975, writ ref'd n.r.e.). This rule does not apply, however, where the insured agrees to designate a certain beneficiary and not to change that beneficiary without the consent of the party with whom the insured has contracted. Id. When an insured agrees to designate a certain beneficiary as part of a divorce property settlement agreement, which is incorporated into a judgment of divorce, it is binding on the parties and is interpreted under general contract law. Deen v. Deen, 631 S.W.2d 215, 217 (Tex.App.Amarillo 1982, no writ). As with any other contract, the provisions of the agreement will not be modified or set aside, absent consent of the parties, except for fraud, accident, or mutual mistake of fact. Id. If, as here, there is no contention that the agreement is ambiguous, the meaning of the agreement is a question of law. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.1968). Where the agreement is unambiguous, the court will give effect to the intention of the parties as expressed in the writing. Id.
Applying these principles to the facts of this case, we initially note that the parties' agreement was that the original policy be retained in full force. We hold that this language requires that the original policy be maintained at its then facevalue *51 of $100,000. Vic agreed to designate his children as beneficiaries of a policy worth $100,000. That agreement cannot be thwarted by Vic's voluntary act of converting part of the policy to another policy with a different policy number and with a different beneficiary. See Hudspeth v. Stoker, 644 S.W.2d 92, 95-96 (Tex.App.San Antonio 1982, no writ) ("It would be manifestly unfair if this change in carriers permitted Hudspeth to avoid his obligations and defeat the equitable rights of the children."); Box, 526 S.W.2d at 789-90 ("It was clearly the intent of the parties ... that the $5,000.00 fund remain intact for the benefit of the children.... The agreement by the decedent not to change the beneficiaries of the policy without the consent of Beatrice Box would be meaningless if the same purpose could be accomplished by borrowing money on the policy and thus depleting the proceeds payable upon the death of the insured."). If we were to give effect to such a conversion, every agreement incident to divorce regarding insurance proceeds could be avoided by merely converting the policy into two or more policies and leaving the original policy with just a minimum value. Such a holding would be tantamount to allowing an insured, who has by agreement surrendered his right to change beneficiaries, to change his beneficiary, a result which has been condemned by the courts of this state. Gutierrez v. Madero, 564 S.W.2d 185 (Tex.Civ.App. Eastland 1978, writ ref'd n.r.e.); Box, 526 S.W.2d 787; Locomotive Engineers' Mut. Life & Accident Ins. Ass'n v. Waterhouse, 257 S.W. 304 (Tex.Civ.App.El Paso 1924, writ ref'd).
Finally, we find Peggy's position that the proceeds of the converted policy should not be paid to Ric because he was not a minor at the time of his father's death unpersuasive. The settlement agreement only required that Ric be less than 22 years of age and never have married or been emancipated. Ric satisfied all of these prerequisites. Peggy confuses the notion of a trial court's power to require child support beyond the age of 18 and the right of the parties to separately agree for such support. The parties to a divorce action can, of course, by contract agree to rights and duties that the trial court cannot grant or require. For example, the parties may contractually agree to alimony, and such contract is enforceable, even though the trial court cannot award alimony to either party. Francis v. Francis, 412 S.W.2d 29, 33 (Tex.1967); Firestone v. Firestone, 567 S.W.2d 889, 892 (Tex.Civ. App.Dallas 1978, no writ). Likewise, parties to a property settlement agreement which is incorporated into a judgment of divorce may provide for the retention of insurance policies for the benefit of a third party beyond the third party's age of majority. O'Neill v. Connecticut Mutual Life Insurance Co., 544 S.W.2d 741, 744 (Tex.Civ.App.Houston [1st Dist.] 1976, writ ref'd n.r.e.); See Box, 526 S.W.2d at 789-90.
For the reasons stated, we hold that the trial court did not err when it interpreted the agreement to mean that Vic could not reduce the value of policy N3686190 and that the children had an interest in and were entitled to the proceeds of the converted policy, # W-4001902, representing the remaining value of policy N3686190. Thus, we affirm the judgment of the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2436981/ | 701 S.W.2d 277 (1985)
SOUTHERN UNION GAS COMPANY, Appellant,
v.
RAILROAD COMMISSION OF TEXAS, et al., Appellees.
No. 14399
Court of Appeals of Texas, Austin.
October 9, 1985.
Rehearing Denied January 8, 1986.
*278 Barry Bishop, Clark, Thomas, Winters & Newton, Austin, for appellant.
Jim Mattox, Atty. Gen., Jo Campbell, Asst. Atty. Gen., Austin, for Railroad Com'n of Texas.
Norman J. Gordon, Diamond, Rash, Leslie & Smith, El Paso, for the City of El Paso.
Before SHANNON, C.J., and BRADY and GAMMAGE, JJ.
BRADY, Justice.
The Texas Railroad Commission ordered a reduction in the rate charged by appellant, Southern Union Gas Company, for natural gas service in the cities of El Paso and Clint. The effect of this final order of the Commission was to decrease Southern Union's revenues by $456,351. The trial court affirmed the Commission's order. We affirm the judgment of the trial court.
By five points of error, the gas company argues that the trial court erred in affirming the Commission's order because; (1) the working capital allowance set by the Commission is not supported by any evidence or substantial evidence; (2) the Commission's disallowance of expenses for rate purposes was an abuse of discretion; (3) the Commission's treatment of investment tax credit violates the statutory provisions and intent of the tax credit and was an abuse of discretion; (4) the Commission's allowance for "vacant jobs" violates the statute and is arbitrary, capricious and contrary to the substantial evidence; and (5) the effect of the Commission's action fails to permit recovery of the company's expenses together with a reasonable return on invested capital.
In 1981, the gas company employed an expert to perform a lead/lag study to determine the amount of working capital it needed. This study measured the time periods involved in the utility's cash/expenditures and cash receipts. This study performed for Southern Union determined its working capital need to be $28,855.
In 1983, when the utility filed a statement of intent with the Commission to increase its rates in the El Paso area, certain attached schedules were incorporated and made a part of its statement. This included the working capital need of $28,855 as described by the lead/lag study. Subsequently, the utility presented evidence at a consolidated hearing, abandoned its lead/lag study, and switched to a formula commonly referred to as the "45 day rule" or the "1/8 rule." By changing its formula, Southern Union increased its revenue deficiency and increased its claim for working capital to $1,248,347. This was over a 4000 percent increase in working capital.
The burden of proof is upon the utility to prove why its working capital needs had increased from $28,855 to $1,248,347. Tex. Rev.Civ.Stat.Ann. art. 1446e § 5.04(b) (Supp.1985) (hereinafter, GURA); Suburban Utility Corporation v. Public Utility Commission, 652 S.W.2d 358 (Tex.1983). The lead/lag study relied upon by Southern Union as late as November 1983, some eight months after the end of its test year, showed its working capital need to be $28,855. The utility failed to show that any specific change had occurred which would result in any change in the lead/lag study. *279 The cash-flow analysis made by the company fails to meet its burden. All this does is show the extent of liquidity of the company on the particular day it was made and does not measure the time or date between expenditures and income.
Appellant relies on the three Lone Star cases written by this Court: Railroad Commission of Texas v. Lone Star Gas Co., 611 S.W.2d 908 (Tex.Civ.App.1981, writ ref'd n.r.e.); Railroad Commission of Texas v. Lone Star Gas Co., 611 S.W.2d 911 (Tex.Civ.App.1981, writ ref'd n.r.e.) and Railroad Commission of Texas v. Lone Star Gas Co., 618 S.W.2d 121 (Tex.Civ. App.1981, no writ). However, these cases can be readily distinguished. In these cases, the Commission relied on its own expertise as a substitute for the record, basing its decision on a controversial methodology that was used after the hearing had closed without affording the utility to cross-examine the Commission's use of such methodology. The case at bar does not present this fact situation.
Appellant's argument stated another way is that the lead/lag study made by it for its rate increase application, filed before the local regulatory authority, was not introduced into evidence before the Commission. However, examination of the record indicates clearly that the study which appellant had presented to the City at the municipal rate proceeding in November 1983, which showed a working capital need of only $28,855, was offered by the City and admitted into evidence before the Commission as Exhibit No. 6. We overrule appellant's first point of error.
Appellant's second point complains that the Commission and the trial court erred when it recognized that certain expenses, although improper for ratemaking purposes, served as income tax deductions when it determined the amount needed for Southern Union's income tax allowance. The utility concedes that the expenses are improper for ratemaking purposes. The utility argues, however, that such should also be excluded for tax purposes, thus, increasing the utility's "theoretical" tax liability. Appellant says this was "double dipping" in favor of the ratepayers at the expense of the shareholders of the company. The appellant, however, cites us no authority for its argument; we therefore reject it.
In Suburban Utility, supra, the Texas Supreme Court stated that expenses comprising a utility's cost of service "are limited to amounts actually realized or which can be anticipated with reasonable certainty." (emphasis added). Id. at 362. The Court, which relied on Federal Power Commission v. United States Pipe Line Co., 386 U.S. 237, 87 S. Ct. 1003, 18 L. Ed. 2d 18 (1967), held in an analogous situation that the Commission was not required to grant a hypothetical tax expense because to do so would give the pipeline company and its stockholders not only the fair return to which they are entitled, but also the full amount of an expense it never, in fact, incurred. There the utility complained that the Commission had applied losses incurred by its affiliates to reduce the utility's income tax allowance. The court said that the Commission had the power and duty to limit the utility's costs of service to real expenses, including income tax allowance.
Utility rates should reflect actual, incurred costs and the manipulation of the income tax allowances should not be used as a method of artificially increasing the utility's revenue requirement. Therefore, we hold that the trial court did not err in holding that the Commission did not abuse its discretion in disallowing "theoretical" income tax liability for ratemaking purposes.
Appellant's third point argues that the Commission's treatment of investment tax credits violates the statutory provisions and intent of the tax credit, was retroactive ratemaking, and an abuse of discretion. The Commission requested that the utility prepare and file an exhibit showing all its investment tax credits received by the company since 1971. By spreading the amount of credit over the life of the property, the Commission thus computed a ratable portion *280 of the tax credit to be applied to the test year in question.
Southern Union calls this a "phantom" credit, and argues that it does not exist. Appellant's theory is that since the tax credit was received in 1971, that money saved was spent either in "dividends to shareholders, other investment, or other expenses ..." Further, the utility contends that it is "retroactive ratemaking in the purest sense." We disagree.
Congress enacted the investment credit to apply against federal income tax with the intent that the utility's customers share in the benefits of those credits. Both the Senate and House reports express the clear intent of Congress that these credits be shared between the ratepayers and the investors. The Texas Legislature recognized this sharing of benefits of the investment and other tax credits when it enacted PURA and later GURA. Section 4.01(e) of GURA provides:
In determining the allocation of tax savings derived from application of methods such as liberalized depreciation and amortization and the investment tax credit, the regulatory authority shall equitably balance the interest of present and future customers and shall apportion the benefits between consumers and the gas utilities accordingly ... (emphasis added).
The Commission's treatment of Southern Union's investment tax credits correctly implements this legislative mandate. By spreading benefits of the 1971 investment tax credit over the useful life of the property producing the credit, the Commission allows both present and future customers to share benefits, and allows the utility to enjoy cost free capital attributable to the unamortized portion of the credits.
It is clear that the utility included all of the property that produced the tax credits in prior years in its rate base, and sought a return on the total cost of that property including the portion attributable to the investment tax credits paid with funds remitted by the ratepayers. Thus, we agree that the Commission's treatment does no more than to return a portion of the customer's funds to them. Such does not constitute retroactive ratemaking.
Appellant's fourth point of error urges that the Commission's allowance for "vacant jobs" violates the statute because it is arbitrary, capricious and contrary to substantial evidence, and that the trial court erred in affirming the Commission's order. The record indicates, without doubt, that there is substantial evidence that the Commission allowed Southern Union's total test year salary expense. However, the utility complains that the Commission's action in removing the unadjusted salary of positions vacant at the end of the test year prevents it from recovering costs of filing these vacant jobs in the future. However, the record clearly demonstrates that the Commission allowed Southern Union's test year salary expense and granted the utility partial adjustments. Appellant sought in its adjustment an additional $339,582 to account for purported changes in salary expense between the end of the test year and December 31, 1983. The Commission accepted $189,820 of this amount, but found that the salary expense Southern Union sought for positions unfilled as of the above date, was too speculative to be regarded as known and measurable. Appellant failed to prove in accordance with § 5.04(b) of GURA, that its proposed adjustment in its entirety was known and measurable. Substantial evidence supports this decision by the Commission because reasonable minds, when considering the evidence as a whole, could have reached the same result. Railroad Commission v. Continental Bus Systems, 616 S.W.2d 179 (Tex.1981).
Finally, appellant's fifth point of error contends that the effect of the Commission's action fails to permit recovery of the company's expenses together with a reasonable return on invested capital is a cumulative point. No argument was made in appellant's brief on this point. Appellant apparently is suggesting that if none of their four points discussed above is sufficient to reverse the judgment of the trial *281 court in upholding the Commission's order, that collectively they are sufficient. This point has no merit.
After this appeal was perfected by the gas company, and prior to oral argument, the Commission moved to strike the agency record and dismiss the appeal or affirm because the record was not properly before this Court. Because of our holding in Purolator Armored v. Railroad Comm'n of Texas, 662 S.W.2d 700 (Tex.App.1983, no writ), in which we held that the agency record need not be admitted as an exhibit in the trial court, we overrule the motion.
The judgment of the trial court is affirmed.
SHANNON, Chief Justice, concurring.
The Commission filed a motion with this Court pointing out that the administrative record is not properly before the Court. The Commission claimed that the judgment should be affirmed for that reason.
Texas Rev.Civ.Stat.Ann. art. 6252-13a § 19(d)(3) (Supp.1985) provides that the party seeking review of an administrative order has the duty to offer and have admitted the agency record into evidence as an exhibit. See dissenting opinion in Purolator Armored v. Railroad Comm'n of Texas, 662 S.W.2d 700 (Tex.App.1983, no writ).
On January 17, 1985, the gas company filed with this Court the transcript of the proceedings in the district court, but did not file a statement of facts. On March 21, 1985, some two months after the judgment was signed, the gas company filed with this Court a supplemental transcript containing an order of the district court directing that the administrative record in question be delivered to the Court of Appeals in its original form pursuant to Tex.R.Civ.P. 379. The administrative record was filed with this Court on the same date.
It is plain that the agency record is not properly before this Court because there is nothing to show that the agency record was admitted into evidence by the district court. Tex.Rev.Civ.Stat.Ann. art. 6252-13a § 19(d)(3). Accordingly, this Court may not evaluate and determine the gas company's contentions on appeal. Because the agency record is not properly here, it is the duty of this Court to affirm the judgment of the district court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2437831/ | 794 S.W.2d 141 (1990)
303 Ark. 100
Charles PERRY, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 90-142.
Supreme Court of Arkansas.
July 16, 1990.
*142 Paul A. Petty, Searcy, for appellant.
David B. Eberhard, Asst. Atty. Gen., Little Rock, for appellee.
DUDLEY, Justice.
At 3:30 a.m. on February 25, 1988, officer Ken Edmunson was on duty as a Searcy policeman. He was driving a city patrol car on his route to check buildings when he saw a dark-colored car circling around the parking lot of Searcy Skateland. He turned his car around to get a better look at the dark-colored car but, by the time he had turned around, it was gone. He did not attempt to pursue the car, but instead, resumed his regular route to check buildings. He drove a few blocks and came to the area where the Elks Lodge is located. The land on which the lodge is located is outside the city, but is bordered by the city on three sides. Officer Edmunson started to drive across the lodge parking lot in order to get to another part of his route inside the city, and, as he was driving across the lot, he saw a car parked with its lights on and the motor running. He turned his patrol car so that its headlights illuminated the parked car, and he saw a man slumped over the steering wheel. He did not know if it was the dark-colored car he had seen earlier. Officer Edmunson got out of his car to check on the man. He found it was appellant, and that appellant was drunk. Officer Edmunson knew he was outside the city, and in an unincorporated part of White County, so he "detained" appellant and radioed for a White County deputy sheriff to come "arrest" appellant. After a short interval the deputy sheriff arrived, arrested appellant, tried to give appellant a field sobriety test but he was too drunk to take it, took him to the police station, and gave him a breathalyzer test, which registered .17.
In the trial court the appellant argued that he was illegally arrested and, therefore, the evidence obtained by the officers should be excluded. The trial court held that appellant was not arrested by Officer Edmunson, but instead, was arrested by the deputy sheriff and, accordingly, denied the motion.
The trial court was in error in finding appellant was not arrested by Officer Edmunson. Within the meaning of the Fourth Amendment, a person is "seized" if, in view of all the circumstances, a reasonable person would have believed that he was not free to leave. U.S. v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980); Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987). There is no real dispute that appellant was not free to leave. Thus, he was seized. The issue is whether the seizure was lawful.
The applicable rule is black letter law, well-established and reasoned precedent. A local peace officer acting without a warrant outside the territorial limits of the jurisdiction under which he holds office is without official power to apprehend an offender, unless he is authorized to do so by state statute. Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979); 5 Am.Jur.2d Arrest § 50 (1962); 6A C.J.S. Arrest § 53 *143 (1975); Annotation, Validity, In State Criminal Trial, Of Arrest Without Warrant By Identified Peace Officer Outside of Jurisdiction, When Not in Fresh Pursuit, 34 A.L.R. 4th 328 (1984). An officer who seeks to make an arrest outside his territory, without a warrant or statutory authority to do so, must be treated as a private citizen. Blevins v. State, 31 Ark. 53 (1876); 5 Am.Jur.2d Arrest § 50 (1962); 6A C.J.S. Arrest § 53 (1975); Annotation, Validity, In State Criminal Trial, Of Arrest Without Warrant By Identified Peace Officer Outside of Jurisdiction, When Not in Fresh Pursuit, 34 A.L.R. 4th 328 (1984).
The authority of municipal corporations to exercise powers beyond their territorial limits must be derived from some state statute. City of Argenta v. Keath, 130 Ark. 334, 197 S.W. 686 (1917). The State of Arkansas has authorized local police officers to act outside their territorial jurisdiction in four instances: (1) the well known "fresh pursuit doctrine" which is codified as Ark.Code Ann. § 16-81-301 (1987); (2) when the peace officer has a warrant of arrest, Ark.Code Ann. § 16-81-105 (1987); (3) when a local law enforcement agency requests an outside officer to come within the local jurisdiction, and the outside officer is from an agency which has a written policy regulating its officers when they act outside its jurisdiction, Ark.Code Ann. § 16-81-106 (1989); and (4) a county sheriff may request that a peace officer from a contiguous county come into the requesting sheriff's county. The visiting officer may then come into that county and investigate and make arrests for violations of drug laws. Ark. Code Ann. § 5-64-705 (1987). None of the foregoing statutes authorized Officer Edmunson to act outside his jurisdiction in this case.
The traditional concept of territorial jurisdiction for peace officers is a sound one since a local community is best served by the requirement that local officers familiar with local neighborhoods make arrests in the community. People v. Hamilton, 666 P.2d 152 (Colo.1983). If such a concept were not followed, a Pocahontas policeman could make an arrest in Paragould, a Texas Ranger could make an arrest in Fordyce, and a K.G.B. agent could make an arrest in Fort Smith. Such a "practice would lead to more violence than it would suppress." McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79 (1906).
Officer Edmunson, acting outside his jurisdiction, only had the authority of a private citizen. Blevins v. State; 31 Ark. 53 (1876); 5 Am.Jur.2d Arrest § 50 (1962); 6A C.J.S. Arrest § 53 (1975); Annotation, Validity, In State Criminal Trial, Of Arrest Without Warrant By Identified Peace Officer Outside of Jurisdiction, When Not in Fresh Pursuit, 34 A.L.R. 4th 328 (1984). Here, the offense, driving while intoxicated, second offense, is a misdemeanor. Ark.Code Ann. § 5-65-111(b)(1) (1987). The applicable Arkansas statute and rule of criminal procedure give a private person the authority to make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony, but they make no such provision in case of a misdemeanor. A.R.Cr.P. Rule 4.1; Ark.Code Ann. § 16-81-106 (1989). We have expressly held that a private person cannot make an arrest for second offense driving while intoxicated. Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985). In sum, the arrest outside the officer's territorial jurisdiction was illegal.
That leaves the question of whether the evidence, which was obtained as an incident to the illegal arrest, should have been suppressed. That question was squarely answered by the Supreme Court of the United States in the case of Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969). In that case the Court held that the Fourth Amendment applies to an unlawful detention, and evidence obtained as the direct result of an unlawful detention is subject to the exclusionary rule. In Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), the Court held the exclusionary rule applies to state prosecution. We follow that mandate. Scroggins v. State, 276 Ark. 177, 633 *144 S.W.2d 33 (1982). Thus, it is applicable in this case, and the evidence which was unlawfully obtained should have been suppressed. Accordingly, we reverse and remand.
HAYS and GLAZE, JJ., dissent.
HAYS, Justice, dissenting.
The fact that a Pocahontas policeman cannot make an arrest in Paragould or a Texas Ranger in Fordyce, unless in fresh pursuit, does not (or should not) lead to the conclusion that police officers on the borders of their own area of authority (here the city limits of Searcy) may not lawfully act in response to an offense occurring in their presence and immediately adjacent to such borders, if only to detain the offender until an officer from the appropriate jurisdiction can arrive to effectuate an arrest. The rule of law now adopted by the majority means that an officer confronted, as was Officer Edmunson, with a highly inebriated motorist, is powerless to prevent an offense potentially dangerous to the public and must stand helplessly by while the drunken motorist drives away. Nothing I can find nor cited by the majority suggests that the law is so compartmentalized that police officers are legally impotent under these facts. Neither Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979) nor Blevins v. State, 31 Ark. 53 (1876), have any factual resemblance to this case: in Logan, a Crittenden County sheriff participated in an arrest in St. Francis County (hours after the offense) no part of which the deputy witnessed; in Blevins, a Pope County sheriff executed an arrest warrant in Conway County, in excess of his powers as then defined by statute.
Moreover, I submit a sound argument exists that even a private citizen could act under the circumstances of this case. It was certainly true at common law that private citizens could arrest for misdemeanors committed in their presence where a breach of the peace was involved. 5 Am.Jur.2d Arrest, § 35 (1962). This is the rule adopted by the Restatement (Second) of Torts, § 119:
Arrest Without Warrant by Private Person for Criminal Offense.
Subject to the rules stated in §§ 127-136, a private person is privileged to arrest another without a warrant for a criminal offense.
* * * * * *
(c) if the other, in the presence of the actor, is committing a breach of the peace or, having so committed a breach of the peace, he is reasonably believed by the actor to be about to renew it, or
That rule of common law has never been expressly overruled in Arkansas (dictum in Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985) notwithstanding), Missouri Pac. Ry. Co. v. McKinney, 189 Ark. 69, 71 S.W.2d 180 (1934). So far as I can determine, the common law rule has simply been ignored.
There is nothing so hallowed about geographical boundaries of police officers that the law restrains them from acting beyond those boundaries in certain instances, that is, when in fresh pursuit of: a suspected felon, any offender whose offense was committed in their presence, or anyone for whom they have a warrant. [See Ark.Code Ann. § 16-81-301 (1987)]. Thus if their authority has some flexibility where exigent circumstances exist (as in fresh pursuit), it is equally plausible that they have the authority to detain any offender acting in their presence whose conduct endangers the public, even though the offense may be occurring just beyond their jurisdictional boundaries. I would affirm.
GLAZE, Justice, dissenting.
The majority correctly states that an officer who seeks to make an arrest outside his territory, without a warrant or statutory authority to do so, must be treated as a private citizen. Nevertheless, the common law accorded a private person extensive powers to arrest without warrant for felonies and breaches of peace committed in his presence. 5 Am.Jur.2d Arrest § 50 (1962). Arkansas, of course, recognizes the common law. Ark.Code Ann. §§ 1-2-119 and 16-13-201 (1987). Although the majority cites A.R.Cr.P. Rule 4.1 and Ark.Code Ann. *145 § 16-81-106 (1989), those provisions merely codify by rule and statute a private citizen's authority to make an arrest when he has reasonable grounds for believing a person has committed a felonythey do nothing to repeal or alter a private person's right to arrest a person who has committed a breach of peace in the arresting citizen's presence.
In my judgment, the only issue in this case is whether finding appellant intoxicated behind the steering wheel of his parked, but running car with its lights on can be defined as a breach of peace or disorderly conduct. If his conduct can be labeled a breach of peace, then his arrest was valid and the evidence seized was admissible. Under a statute authorizing peace officers to arrest without warrant for disorderly conduct, drunkenness in a public place has been held to be disorderly conduct, though the individual is not otherwise creating a disturbance. 5 Am.Jur.2d Arrest § 41 (1962). Arkansas has such a statute. See Ark.Code Ann. § 12-11-110 (1987); but see also Ark.Code Ann. § 5-71-207 (1987). That being so, appellant's conviction should be affirmed.
HAYS, J., joins this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1802144/ | 560 N.W.2d 100 (1997)
Phong Thi DOAN, Appellant,
v.
MEDTRONIC, INC., Respondent.
No. C5-96-1353.
Court of Appeals of Minnesota.
February 25, 1997.
Review Denied May 14, 1997.
*102 Hoang K. Tran, Nguyen Tran Law Office, Minneapolis, for Appellant.
Rebecca Palmer, James F. Hanneman, Maslon, Edelman, Borman, & Brand, P.L.L.P., Minneapolis, for Respondent.
Considered and decided by WILLIS, P.J., and PETERSON and FOLEY,[*] JJ.
OPINION
PETERSON, Judge.
In this employment termination case, Phong Thi Doan argues the evidence does not support the district court's findings and those findings do not support the conclusion that she was discharged for nondiscriminatory reasons. Doan also claims the district court abused its discretion in denying her motion to amend her complaint, erred in directing a verdict on her tort claims, and denied her a fair trial by failing to appoint an interpreter sua sponte. We affirm.
FACTS
Appellant Phong Thi Doan is a woman of Vietnamese descent who came to the United States in 1975. Doan worked for respondent Medtronic, Incorporated, assembling medical devices that are implanted in humans to treat chronic pain.
A lead is one component of the medical device. Medtronic builds two models of leads, number 3487A and number 3888. Both lead models must be built in accordance with exact specifications in a sterile environment. Medtronic warned all lead builders not to damage insulation on the lead wires during lead assembly because such damage could cause the entire device to malfunction. Medtronic required all lead builders to check their own leads for damaged insulation before passing them on as good to the next step of the production process, which was gluing electrodes to the lead wires. Medtronic agreed that no one built perfect leads every time. But Medtronic expected all lead builders to discover and discard leads with damaged insulation before gluing electrodes to the lead wires because the glued electrodes concealed any insulation damage.
Doan's employment was terminated on February 11, 1994. Doan was given a letter stating that the grounds for the termination were that she had built ten 3487A leads with damaged insulation and passed them on as good, that a trained lead builder should not have passed the leads on as good, and that she had failed to meet Medtronic's quality requirements consistently. A white American woman replaced Doan.
Doan sued Medtronic for discrimination and intentional and negligent infliction of emotional distress. Doan's motion for an advisory jury was granted. Doan never asked the court to appoint an interpreter or indicated to the court in any way that difficulty speaking or comprehending the English language was preventing her from understanding the proceedings or obtaining due process of law.
At trial, Doan testified that she first complained to Medtronic about harassment in December 1992 after her trainer, Darlene Uecker, accused her of improperly spacing electrodes on leads. Doan said she told Lea Jones, her supervisor, and Melody Richards, her human resources representative, that she was being harassed and picked on and that Uecker hated her because she was Vietnamese. Doan said that although she later reiterated these complaints, Medtronic did nothing.
Doan said that in February 1994, she again met with Richards and complained about Uecker's harassment but Medtronic did nothing. Doan said she specifically told Richards that in June 1992, her team members called her "Statue of Liberty"; in 1991 or 1992, her *103 team members called her garlic woman or garlic breath; and her team members called other Asians her "homeboys." Doan also said people repeatedly said "excuse me, what did you say" when she was talking, which made her feel that they did not want to understand or talk to her; she was not allowed to learn how to perform final inspections; and she was not allowed to make up time she missed but white employees were allowed to do so. Doan finally said that when she was discharged, she told Richards and her supervisor, Jim Budnicki, about the harassment and discrimination but they refused to discuss these matters.
On cross-examination, Doan agreed she did not testify at her deposition about any of the discriminatory incidents. Doan also agreed she had testified at her deposition that no one at Medtronic ever had made a negative comment to her about being Vietnamese and that she never was harassed at Medtronic except when Uecker accused her of building the defective leads.
Doan testified at trial that she told Uecker that she had not built the damaged leads and that no one else at Medtronic ever asked her whether she had built the defective leads. Doan said her team engineer agreed to let her build five leads for him to demonstrate that she could build good leads. Doan said that although one of the test leads had damaged insulation, she warned the engineer that she thought one lead was bad. Doan said she later disassembled between 10 and 20 leads during her normal spot-checking procedure and discovered several with damaged insulation, but Uecker did nothing to discover who had built these leads. Finally, Doan introduced her time card showing that on the day the defective leads that caused her discharge were built, she was working on 3888 rather than 3487A leads.
Medtronic agreed that Doan's termination letter referred to an incorrect lead model number. Budnicki testified that he wrote the termination letter and that he obtained the lead model number from the team engineer's memorandum summarizing the situation and from conversations with the engineer. The team engineer testified that he obtained the model number from Doan's co-workers and possibly even Doan herself.
But Medtronic's witnesses testified that although the model number in the letter was incorrect, Doan had built ten defective 3888 leads. Uecker testified that she found the damaged 3888 leads at Doan's workstation. Budnicki and Richards testified that when she was discharged, Doan admitted she had built the damaged leads. Budnicki also testified that it took about an hour to build one lead and that team timecards from the day the defective leads were built showed that only Doan had spent more than a fraction of an hour building 3888 leads. Budnicki said the documentation that accompanied each group of leads also showed that ten 3888 leads were scrapped on the day that Doan allegedly built the ten defective 3888 leads and that only two other 3888 leads were scrapped after that date. Budnicki said the time cards and lot documentation showed Doan was the only person on her team who could have built the defective 3888 leads.
The team engineer testified that he expected to receive five good test leads and that Doan never told him that one test lead was bad. The engineer said that when he received one lead with damaged insulation, he concluded that Doan had difficulty building good leads. Other witnesses testified that their primary concern was that Doan had glued electrodes to the damaged leads, thereby indicating that she had passed them on as good despite the damaged insulation.
Budnicki and Richards testified that they reviewed all the documentation regarding the ten defective leads, that Budnicki looked at the damaged test lead, and that they considered Doan's quality problems during 1992. Budnicki and Richards then decided to terminate Doan's employment for building and passing on the damaged leads and for failing to meet Medtronic's quality requirements.
Richards agreed that in 1992, Doan reported that she was being "picked on." Richards, however, said that Doan did not make this comment until after she was told that there was a quality problem with her work. Richards said she therefore attributed Doan's comment to Doan's difficulty in receiving constructive criticism about her work. *104 Richards said Doan later said that her relationship with Uecker was fine. Richards also testified that Doan did not report any discrimination or harassment during their February 1994 meeting. Budnicki and Richards both denied that Doan said anything about harassment or discrimination when she was discharged.
Doan's evaluations showed her performance was always satisfactory or above average. The evaluations, however, also showed that Doan became defensive when confronted with constructive criticism about her work.
After the parties rested, the trial court said it had had some difficulty understanding Doan's testimony and, consequently, had asked the court reporter to prepare a transcript of Doan's testimony immediately. The court said the transcript showed the court reporter had understood and accurately reported Doan's testimony.
The court granted Medtronic's motion for directed verdicts on Doan's intentional and negligent infliction of emotional distress claims. Doan then moved to amend her complaint to add claims of reprisal discrimination, defamation, and punitive damages. The court denied this motion.
The trial court determined that Doan had established a prima facie case of discrimination and that Medtronic had produced a legitimate, nondiscriminatory reason for its actions. The court then determined that Doan had not met her burden of showing Medtronic's stated reason was not worthy of belief or a pretext for discrimination and concluded that Medtronic had not discriminated against Doan.
The court specifically found that Doan was discharged for building and passing on ten defective leads and that Doan actually had built and passed on the ten defective leads. The court said the incorrect model number in the termination letter was not dispositive in light of the entire record. The court found that Doan did not take criticism well and viewed comments about quality problems with her work as harassment and that Doan's complaints about harassment, therefore, were not based on racial or native origin discrimination. The court also found that cross-examination severely impeached Doan's testimony regarding the harassing comments directed towards her and that it was more likely than not that these alleged incidents had not occurred. Doan appealed from the judgment.
ISSUES
I. Does the record support the trial court's findings and do the findings support the court's conclusions on Doan's discrimination claim?
II. Did the trial court abuse its discretion in denying Doan's motion to amend her complaint?
III. Did the trial court err in directing a verdict?
IV. Did the trial court err in failing to appoint an interpreter sua sponte?
ANALYSIS
I.
When a party appeals from a judgment without having made a motion for a new trial,
"the only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment."
Novack v. Northwest Airlines, Inc., 525 N.W.2d 592, 596 (Minn.App.1995) (quoting Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976)).
Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
Minn. R. Civ. P. 52.01.
An employer cannot discriminate against an employee on the basis of race or national origin. Minn.Stat. § 363.03, subd. 1(2) (Supp.1993). To evaluate a discrimination claim, a court must conduct a three-part analysis: the court first determines whether the plaintiff has established a prima facie case of discrimination; the court then must decide whether the defendant has met its *105 burden of production to present evidence of a legitimate, nondiscriminatory reason for its acts; and the court finally must determine whether the plaintiff has shown that the employer's proffered reasons were actually a pretext for discrimination. Hasnudeen v. Onan Corp., 552 N.W.2d 555, 556 (Minn. 1996); see also Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 711 (Minn.1992) (third prong of McDonnell Douglas test requires plaintiff to show proffered reason was pretext for discrimination or not worthy of belief).
[W]ith regard to the third prong of the test, the sole question is "whether or not the court is persuaded that the employee has been the victim of intentional discrimination."
Hasnudeen, 552 N.W.2d at 557 (quoting Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 626 (Minn.1988)).
Doan first argues that the trial court should have adopted the advisory jury's findings. But a discrimination case brought under the Human Rights Act is determined by the court. Minn.Stat. § 363.14, subd. 2 (1994). An advisory jury's findings are advisory only and "`are merely to reinforce the court's own decision on the disputed facts not to supplant it.'" Pedro v. Pedro, 463 N.W.2d 285, 288 (Minn.App.1990) (quoting In re Estate of Murphy, 269 Minn. 393, 404, 131 N.W.2d 220, 227 (1964)), review denied (Minn. Jan. 24, 1991). The trial court was not required to adopt the advisory jury's findings and, in fact, was required to make its own findings. The fact that the trial court disbelieved testimony believed by the jury does not make its findings clearly erroneous or unsupported by the record.
Doan next argues the trial court's findings on the third prong of the McDonnell Douglas test were not supported by the evidence. We disagree. Evidence in the record showed that the damaged leads were found at Doan's work station. Richards and Budnicki testified that Doan admitted at the termination meeting that she built the defective leads. Although an incorrect model number was stated in the termination letter, testimony at trial explained how this mistake was made and supported the court's finding that, regardless of the model number, Doan had built and passed on ten defective leads.
Further, Doan's failure to testify about the discriminatory and harassing incidents until trial supported the trial court's conclusion that these remarks probably were never made. Similarly, the evidence showing Doan had a history of responding to constructive criticism in a defensive manner, particularly evidence that she complained about harassment after her work was criticized, supported the court's finding that Doan's complaints to Medtronic did not concern racial or national origin harassment. Finally, although Doan claims the trial court disregarded her testimony because it did not understand her, the court's request for and use of an immediate transcript showed it did not disregard her testimony. Doan does not claim that the transcript incorrectly reported her testimony. Overall, the evidence in the record supported the trial court's findings.
The trial court's findings also supported its conclusion that Medtronic did not discharge Doan for discriminatory reasons. The court found that Doan built ten defective leads; that Medtronic's reliance on this quality breach in discharging Doan was justified; that many of the discriminatory comments and incidents alleged by Doan did not occur; and that Doan never reported any harassment to anyone at Medtronic. These findings supported the conclusion that Medtronic's stated reason for Doan's discharge was not a pretext for discrimination or unworthy of belief.
II.
Doan next argues the trial court abused its discretion in denying her motion to amend her complaint to add reprisal, defamation, and punitive damages claims.
[M]atters such as trial procedure, evidentiary rulings and jury instructions are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error.
Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn.1986). The decision whether to allow an amendment to a pleading is a matter of trial procedure. Kulkay v. Allied Cent. *106 Stores, Inc., 398 N.W.2d 573, 578-79 (Minn. App.1986), review denied (Minn. Feb. 13, 1987), disagreed with on other grounds by Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 841 n. 17 (Minn.1988). Because Doan made no motion for a new trial, we will not address her claim that the trial court erred in denying her motion to amend her complaint.
III.
Doan next argues the trial court erred in directing verdicts for Medtronic on her negligence claims. Doan's failure to move for a new trial does not preclude our review of the directed verdict. See Kulkay, 398 N.W.2d at 579 (when party failed to move for new trial, this court reviewed directed verdict but refused to address issues of trial procedure); Pedersen v. United Servs. Auto. Ass'n, 383 N.W.2d 427, 430-431 (Minn.App.1986) (when party failed to move for new trial, this court held that issues of trial procedure had not been preserved for review and then reviewed propriety of directed verdict); cf. Hagel v. Schoenbauer, 532 N.W.2d 255, 256-57 (Minn.App.1995) (denial of negligence per se claim reviewable despite absence of posttrial motion because party's challenge to denial was similar to appeal from adverse judgment; party was seeking reversal rather than new trial; and trial court had reconsidered its decision during trial).
A motion for a directed verdict presents a question of law on whether the evidence is sufficient to create a fact issue for the jury to decide. A directed verdict is appropriate only in the clearest of cases where but one conclusion can be drawn from the facts, and the question for determination becomes a question of law for the court.
Beck v. American Sharecom, Inc., 514 N.W.2d 584, 587 (Minn.App.1994) (citations omitted), review denied (Minn. June 29, 1994). In reviewing the directed verdict, we "must accept as true the evidence favorable to the adverse party and all reasonable inferences which can be drawn from that evidence." Claflin v. Commercial State Bank, 487 N.W.2d 242, 247 (Minn.App.1992), review denied (Minn. Aug. 4, 1992).
A. Intentional infliction of emotional distress.
Intentional infliction of emotional distress has four elements: (1) extreme and outrageous conduct (2) that is intentional or reckless and (3) causes emotional distress (4) that is severe. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 438-39 (Minn. 1983). The conduct complained of "must be `so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community.'" Id. at 439 (quoting Haagenson v. National Farmers Union Property & Cas. Co., 277 N.W.2d 648, 652 n. 3 (Minn.1979)).
Here, Doan argues that Medtronic's false accusation that she built the defective leads, her resulting discharge without proper evaluation, the false termination notice, and the false accusation that she disassembled 37 leads was outrageous conduct. We disagree. Even if we view the evidence in the light most favorable to Doan and assume all accusations against her were false, Medtronic's conduct still was not "so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community." Haagenson, 277 N.W.2d at 652 n. 3. Accordingly, the trial court did not err in directing a verdict on this claim.
B. Negligent infliction of emotional distress.
To recover for negligent infliction of emotional distress, a plaintiff must show she was within a zone of danger of physical impact, reasonably feared for her safety, and consequently suffered severe emotional distress with resulting physical injury. Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902, 907 (Minn.App.1987), review denied (Minn. Nov. 13, 1987).
An exception to the "zone of danger" rule is that a plaintiff may recover damages for mental anguish or suffering for a direct invasion of his rights, such as defamation, malicious prosecution. or other willful, wanton or malicious conduct.
Id.
Doan does not seek to recover under the zone of danger test but instead argues *107 that Medtronic's actions were a direct invasion of her rights and therefore support her negligence claim. But Doan had no valid defamation or other tort claim involving a direct invasion of her rights. Thus, the trial court properly granted a directed verdict on her negligent infliction of emotional distress claim. See id. (plaintiff could assert negligent infliction of emotional distress claim if her defamation action stood); see also Oslin v. State, 543 N.W.2d 408, 413-14, 417 (Minn. App.1996) (when defamation and battery claims against employer were dismissed because the conduct was not work related, negligent infliction of emotional distress claim also failed), review denied (Minn. Apr. 1, 1996).
Given our decision, we need not address the other grounds raised by Medtronic as support for the directed verdicts.
IV.
Doan argues that although she never asked for an interpreter or indicated to the trial court that difficulty speaking or comprehending the English language was preventing her from understanding the proceedings or obtaining due process of law, the court should have appointed an interpreter for her sua sponte. In a civil case where the party is handicapped in communication, the trial court "shall appoint a qualified interpreter to serve throughout the proceedings." Minn. Stat. § 546.43, subd. 1 (1996). A person handicapped in communication is one who
because of difficulty in speaking or comprehending the English language, is unable to fully understand the proceedings in which the person is required to participate, or when named as a party to a legal proceeding, is unable by reason of the deficiency to obtain due process of law.
Minn.Stat. § 546.42 (1996).
Medtronic argues that this court should not consider this issue because (1) Doan did not raise it before the trial court and (2) it is a matter of trial procedure not raised in a posttrial motion. We agree that Doan's failure to raise this issue before the trial court precludes our review of the matter. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate court will address only issues presented to and considered by district court in deciding matter).
DECISION
The evidence supports the trial court's findings and those findings support the court's conclusion that Medtronic did not discriminate against Doan. We will not consider whether the trial court abused its discretion in denying Doan's motion to amend her complaint because this is an issue of trial procedure that was not raised in a posttrial motion. The trial court did not err in directing a verdict on Doan's tort claims because the evidence, when viewed in the light most favorable to Doan, was not sufficient to create a fact issue for the jury on these claims. We will not determine whether the trial court erred in failing to appoint an interpreter sua sponte because Doan did not raise this issue before the trial court.
Affirmed.
NOTES
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2438342/ | 808 S.W.2d 476 (1991)
John Howard ABDNOR, Appellant,
v.
The STATE of Texas, Appellee.
No. 1045-88.
Court of Criminal Appeals of Texas, En Banc.
April 10, 1991.
Rehearing Overruled May 15, 1991.
Ronald L. Goranson, Dallas, for appellant.
John Vance, Dist. Atty. and Pamela Sullivan Berdanier, Mike Gillett and Gerald Banks, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
PER CURIAM.
The jury rejected appellant's insanity defense, convicted him of murder and sentenced him to confinement for life. The Court of Appeals affirmed appellant's conviction. Abdnor v. State, 756 S.W.2d 815 (Tex.AppDallas 1988). We granted appellant's petition for discretionary review on three grounds.[1] For the following reasons *477 we will reverse the judgment of the Court of Appeals.
In his third ground for review, appellant argues that the trial court failed to provide a limiting instruction to the jury regarding extraneous offenses allegedly committed by appellant.[2] On direct examination during the guilt/innocence phase, State's witness Bryan Parsons testified that appellant telephoned on July 25, 1980, two days before the alleged offense, and stated that complainant, appellant's girlfriend, had an abortion, and that appellant and complainant had terminated their relationship. During that conversation appellant stated, "That bitch really screwed up this time ... if she walked through that door right now I'd blow her head off. I'd just blow her right up against the wall." Parsons related that conversation to members of the Dallas County District Attorney's Office eight months later in March, 1981.
On cross-examination, defense counsel impeached Parsons with his statement of September 13, 1981, the Sunday before trial began, wherein Parsons stated that he had lied about the March, 1981 conversation. On redirect examination, the State attempted to rehabilitate Parsons. Parsons testified that he recanted his March 1981 statement because he feared appellant. His fear stemmed from two extraneous offenses. First, appellant previously pulled a knife on Parsons. Second, appellant telephoned Parsons' boss and threatened to kill Parsons. Both of these events allegedly occurred in June, 1980, approximately one month prior[3] to the telephone conversation and the alleged offense.
Appellant objected to the admission of the extraneous offenses. Specifically, the record reflects the following:
[DEFENSE COUNSEL]: What we're objecting to, Your Honor, is the testimony, in effect, brings in extraneous matters and extraneous offenses: to-wit, assault, from the witness, which would be inadmissible for general purposes in this case, in that it would showit would have a tendency to show that the Defendant is a criminal generally, and it is not really admissible on any issue in the trial.
... [I]t affects the state of mind of the witness, and its prejudice far outweighs any relevance of materiality of the testimony.
Basically, it is an extraneous offense: it's not relevant to the actual issues in this case. The State is only offering it for a limited purpose, and the prejudice outweighs its materiality.
THE COURT: Overruled.
* * * * * *
[Defense Counsel]: And I would also request that, as this testimony comes in, immediately after the witness makes the statements ... the Judge instruct the jury, specifically, that the testimony is admitted only for the purposes of how it affects the credibility of the witness, and it's not to be considered for any purpose whatsoever as to whether or not the Defendant is guilty of the offense charged.
THE COURT: Okay. Denied at this time. I'll take that up when we take up the Charge. (Emphasis added.)
Prior to its submission to the jury, appellant objected to the court's charge for its *478 failure to limit the jury's consideration of the extraneous offenses. Appellant offered several proposed charges for the trial court's consideration.[4]
It is well settled that a defendant is to be tried on accusations in the State's pleading only, and not for being a criminal generally. Wilkerson v. State, 736 S.W.2d 656 (Tex.Cr.App.1987). Proof of an extraneous offense may be admissible at the guilt/innocence phase of trial insofar as it illuminates a material issue in that case. E.g. Crank v. State, 761 S.W.2d 328, 340-45 (Tex.Cr.App.1988). It is never admissible merely to encourage the inference that an accused is probably guilty because he committed other crimes. Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983).
In the case at bar, the State was entitled to introduce evidence of appellant's extraneous offenses for the limited purpose of explaining Parsons' prior inconsistent statement. Williams v. State, 604 S.W.2d 146 (Tex.Cr.App.1980); Villarreal v. State, 576 S.W.2d 51 (Tex.Cr.App.1978). Where evidence is admissible for a limited purpose and the court admits it without limitation, the party opposing the evidence has the burden of requesting a limiting instruction. Plante v. State, 692 S.W.2d 487, 493 (Tex.Cr.App.1985). Appellant met that burden, but the trial court refused to limit the jury's consideration of the extraneous offenses. Accordingly, the trial court erred. See Porter v. State, 709 S.W.2d 213 (Tex.Cr.App.1986).
Having determined that a limiting instruction should have been given, this case must be remanded to the Court of Appeals for an assessment of harm in light of our holding in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985).
The judgment of the Court of Appeals is reversed and the cause is remanded to that court for action consistent with this opinion.
BAIRD, Judge, concurring in part and dissenting in part.
I concur with the holding of the majority that the trial court erred by refusing to limit the jury's consideration of the extraneous offenses. However, for the following reasons, I respectfully dissent to the disposition reached by the majority opinion.
Appellant was convicted in 1981. His original appeal seeking to establish indigency took five years. Abdnor v. State, 712 S.W.2d 136 (Tex.Cr.App.1986). His direct appeal on the merits was not resolved until 1988. Abdnor v. State, 756 S.W.2d 815 (Tex.App.Dallas 1988). This case has been pending before this Court since that time. Today, the majority remands the cause for the Court of Appeals to conduct a harm analysis.
I believe justice would be better served if we conducted such an analysis instead of remanding this cause to the Court of Appeals. Contrast, Porter v. State, 709 S.W.2d 213 (Tex.Cr.App.1986) (trial court error in failing to limit jury's consideration of extraneous offenses constituted error; *479 reversed and remanded for Court of Appeals to assess harm pursuant to Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1985)).
An error in a jury charge which has been properly preserved by objection will call for reversal as long as the error is not harmless. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App. 1985) (Opinion on State's Motion for Rehearing). Where the defendant preserves error by timely requesting a jury instruction, any harm resulting to a defendant will require reversal. Gibson v. State, 726 S.W.2d 129, 133 (Tex.Cr.App. 1987) (Emphasis in original).
For the following reasons I cannot conclude that the trial court's failure to limit the jury's consideration of the extraneous offenses was harmless. First, there is a greater prejudicial effect from the admission of criminal extraneous conduct rather than noncriminal conduct. Plante v. State, 692 S.W.2d 487, 490 n. 3 (Tex.Cr.App.1985). Additionally, appellant attempted to establish the affirmative defense of insanity, which was sharply contested with experts contradicting each other. As appellant never physically harmed Parsons, the jury might have concluded from the extraneous acts that appellant knew that his conduct was wrong, or that appellant was capable of conforming his conduct, when he killed the complainant. Tex.Code Crim.Proc.Ann. § 8.01. Finally, the State mentioned the extraneous offense involving the knife at closing argument but did not limit the argument to Parsons' credibility. Therefore, in my opinion, the failure to limit the jury's consideration of the extraneous offenses was not harmless. Richardson v. State, 751 S.W.2d 663 (Tex.App.Houston [1st Dist.] 1988), rev'd on other grounds, Richardson v. State, 786 S.W.2d 335 (Tex.Cr. App.1990).
Finally, while I believe, for the reasons stated above, the Court of Appeals will find harm pursuant to Almanza, 686 S.W.2d 157, in the event the Court of Appeals does not, we will certainly be called upon to address the remaining two grounds for review, and the disposition of the harm analysis pursuant to this remand. This would result in even greater appellate delay when such can be prevented by this Court at this time.
MILLER, J., joins this opinion.
McCORMICK, Presiding Judge, dissenting.
The majority reverses appellant's conviction based on his contention that "[t]he Court of Appeals has decided a question of law in conflict with the applicable decisions of the Court of Criminal Appeals requiring the limitation of evidence to the purpose for which the testimony was admitted." We granted appellant's petition for discretionary review on this and two other grounds as noted in footnote 1 of the majority opinion. Because the Court of Appeals did not address the ground for review upon which the majority now reversed, I dissent.
In the Court of Appeals, appellant raised the point of error that "[t]he trial court erred in permitting the prosecution to introduce evidence of an extraneous offense concerning an altercation between the Appellant and Bryan Parsons." Addressing this point, the Court of Appeals held:
"The general rule is that an accused may not be tried for some collateral crime or for being a criminal generally. Rubio v. State, 607 S.W.2d 498, 499 (Tex. Crim.App.1980). It is well recognized, however, that this rule must in some instances give way, as where the prosecution shows that the extraneous transaction is relevant to a material issue in the case and where its probative value outweighs its prejudicial potential. Elkins v. State, 647 S.W.2d 663, 665 (Tex. Crim.App.1983). The extraneous transactions in this case were relevant to the witness's credibility and his ability to explain a prior inconsistent statement originally elicited by Abdnor's defense counsel. Simply, evidence that a witness has been threatened is admissible to explain prior inconsistent statements by the witness. Williams v. State, 604 S.W.2d 146, 150 (Tex.Crim.App.1980). We overrule Abdnor's sixth point of error." *480 Abdnor v. State, 756 S.W.2d 815, 822 (Tex. App. 1988).
Neither in addressing this point of error nor anywhere else in the Court of Appeals' opinion is the issue of the necessity for an instruction touched upon. Such issue appears in the record below only in a tangential argument in appellant's brief pursuant to point of error six as set forth above. With the advent of discretionary review practice in this Court, there was much discussion relative to our role in reviewing decisions of the Courts of Appeals. Early on, Judge Clinton noted:
"The Rules of Post Trial and Appellate Procedure in Criminal Cases governing petitions for discretionary review in this Court do not authorize review of claims which have not been presented in an orderly fashion and determined by the appropriate court of appeals." Lambrecht v. State, 681 S.W.2d 614 (Tex.Cr. App. 1984).
See also Arline v. State, 721 S.W.2d 348 (Tex.Cr.App. 1986) at footnote 9; Humason v. State, 728 S.W.2d 363 (Tex.Cr.App. 1987) at footnote 4; and Tallant v. State, 742 S.W.2d 292 (Tex.Cr.App.1987).
The adoption of this view was not without objection. On numerous occasions, former Presiding Judge Onion chastised the majority for failing to address issues before this Court even though not addressed by the lower court, and for remanding cases to the Courts of Appeals to perform some function this Court was capable of performing. See Orn v. State, 753 S.W.2d 394 (Tex.Cr.App.1988) (Onion, P.J., dissenting: "I vigorously dissent to the failure of the majority to dispose of this cause now"). It was in such a dissent that Judge Onion coined the now popular phrase of "appellate orbit":
"I dissent to the remand to the Court of Appeals. The case has already been reversed on other grounds. I would decide the exigent circumstances question here. We needlessly keep too many cases in appellate orbit." Adkins v. State, 111 S.W.2d 363 (Tex.Cr.App. 1986, Onion, P.J. dissenting). See also Black v. State, 723 S.W.2d 674 (Tex.Cr.App. 1986, Onion, P.J. dissenting).
Despite these protests, this Court has established the policy of not addressing issues unless the opinion of the Court of Appeals has done so. As Judge Campbell explained so clearly in Angel v. State, 740 S.W.2d 727 (Tex.Cr.App.1987):
"Our state constitution limits this Court's discretionary appellate power to review of `a decision of a Court of Appeals in a criminal case as provided by law.' Tex. Const, art. V, § 5; see also Tex.R.App.Proc. 202(a). Our own rules of procedure further limit our review to those particular grounds raised in the petition and granted by this Court. Tex. R.App.Proc. 202(d)(4); see McCambridge v. State, 712 S.W.2d 499, 500 n. 2 (Tex. Cr.App.1986) (discretionary review strictly limited to ground raised and granted in petition); Eisenhauer v. State, 678 S.W.2d 947, 956 (Tex.Cr.App.1984) (Clinton, J., dissenting) (`Our grant of review was no broader than the ground presented....'). By doing so, we narrow our appellate focus to a particular issue, thus avoiding wholesale review of an entire case. See, e.g., McCambridge, supra, at 501 n. 6 (issue on voluntariness of consent not granted for review). Given these constitutional and procedural restrictions upon our review power, `our [discretionary] review is limited to those points of error decided by the courts of appeals, included in petitions for discretionary review and granted as grounds for review.' Arline v. State, 721 S.W.2d 348, 353 n. 9 (Tex.Cr.App.1986)"
We should not now change the rules. The majority's addressing the issue and reversing appellant's conviction is against the policies we have imposed upon ourselves.
Appellant's petition on this ground for review should be improvidently granted since it is now clear there is no decision of the Court of Appeals for us to review.
I respectfully dissent.
NOTES
[1] We granted this petition for discretionary review to determine whether the Court of Appeals erred by: 1) holding that it was harmless error for the trial court to permit a defense witness to be cross-examined and a prosecution witness to base his opinion on appellant's hospital records which were controlled by the therapist/patient privilege of former Tex.Rev.Civ.Stat. art. 5561h (repealed), 2) concluding that the trial court did not err in permitting an investigator to testify about oral statements made by appellant and to testify that appellant chose not to explain exactly how the killing had taken place, and 3) deciding a question of law in conflict with the applicable decisions of the Court of Criminal Appeals requiring the limitation of evidence to the purpose for which the testimony was admitted.
[2] This case was tried before the effective date of Tex.R.Crim.Evid. 105(a):
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly, but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.
Therefore, we will not analyze this case pursuant to that rule.
[3] All emphasis herein supplied by author unless otherwise indicated.
[4] In his "Requested Jury Instructions I", appellant requested the following:
You are instructed that certain testimony involving a conversation between the witness, Bryan Parsons, and Mike Duran concerning a threat made against Bryan Parsons was admitted into evidence. Said testimony was admitted only to aid the jury, if it does, in passing on the credibility of the witness, Bryan Parsons, and is not to be considered for any purpose whatsoever against the defendant, John Howard Abdnor.
You are further instructed that certain testimony involving an altercation between Bryan Parsons and John Howard Abdnor was admitted into evidence. Said testimony was admitted only to aid the jury, if it does, in passing on the credibility of the witness, Bryan Parsons, and is not to be considered for any purpose whatsoever against the defendant, John Howard Abdnor.
In his "Requested Jury Instructions-II", appellant requested the following:
You are instructed that certain testimony involving an altercation between the defendant and Bryan Parsons was admitted into evidence only to aid the jury, if it does, in passing on the credibility of the witness, Bryan Parsons, (or in the alternative, without waiving the foregoing request, in passing on the state of mind of the witness Parson's [sic] in refusing to talk with defense counsel, Randy Taylor) and is not to be considered for any purpose whatsoever against the defendant, John Howard Abdnor. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2438135/ | 970 N.E.2d 627 (2008)
386 Ill. App. 3d 1126
IN RE C.S.
No. 3-08-0473.
Appellate Court of Illinois, Third District.
November 17, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2438286/ | 874 S.W.2d 797 (1994)
In the Interest of Jonathan PECHT and Adam Pecht, Children[1].
No. 06-93-00082-CV.
Court of Appeals of Texas, Texarkana.
March 30, 1994.
Rehearing Denied April 26, 1994.
*799 Kevin Dubose, Holman Hogan, Houston, for appellant.
Dianne Richards, T. Wayne Harris, Houston, for appellee.
Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.
BLEIL, Justice.
Gerard Pecht appeals from an order modifying his child support obligation. The primary issue on appeal is whether the trial court abused its discretion in modifying the child support order. Pecht also questions the trial court's award of attorney's fees. We find no abuse of trial court discretion in modifying the support order or in awarding attorney's fees which have support in the evidence. We modify the judgment to set aside the attorney's fees which are not supported by the evidence and, as modified, we affirm.
The Pechts divorced in 1988 and were appointed as joint managing conservators of their two sons, Jonathan, born in 1983, and Adam, born in 1985. Nancy Pecht has primary custody of the children. Under the terms of the divorce decree, Gerard Pecht paid child support of $900.00 a month, fifty percent of the children's private school tuition, and fifty percent of any uninsured medical expenses incurred by the children.
In March 1990, an agreed order modifying Gerard Pecht's child support obligation was entered. Under that order, in addition to the support ordered in the divorce decree, Gerard Pecht was required to pay two-thirds, instead of one-half, of the monthly tuition costs for the private school, not to exceed $800.00 a month for both children. At the time of the hearing, Jonathan attended a private school with an annual tuition cost of $7,500.00. Gerard Pecht was also ordered to pay $320.00 per month as long as his ex-wife employed a full-time housekeeper who worked at least two days a week at his home; however, the housekeeper stopped working at Gerard Pecht's home in June 1992 and now works only for Nancy Pecht.
In 1992, Nancy Pecht filed a motion to modify the child support order. The issue of child support was tried to the court. In May 1993, the trial court entered an order requiring Gerard Pecht to pay a flat amount of $3,500.00 for monthly child support.[2] The *800 trial court also issued findings of fact and conclusions of law.
CHILD SUPPORT
Gerard Pecht contends that the trial court abused its discretion by increasing his child support obligations in the absence of evidence of a corresponding increase in the needs of the children since the previous order in March 1990 and by considering the ability of the parents to contribute to the support of the children.
The trial court has the authority to modify a child support order if the circumstances of the child or a person affected by the order or portion of the decree to be modified have materially and substantially changed since the date of its rendition. TEX. FAM.CODE ANN. § 14.08 (Vernon 1986 & Supp.1994). The trial court may consider the guidelines for the support of a child that are set forth in the Family Code when determining whether there has been a material and substantial change in circumstances that warrants a modification of an existing child support order if the modification is in the best interest of the child. Tex.Fam.Code Ann. § 14.056(a) (Vernon Supp.1994). An increase in the needs, standard of living, or lifestyle of the obligee since the rendering of the existing order does not warrant an increase in the obligor's child support obligation. Id.
The court's child support order will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). Under an abuse of discretion standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but are relevant factors in assessing whether the trial court abused its discretion.[3]See Mai v. Mai, 853 S.W.2d 615, 618 (Tex.App.Houston [1st Dist.] 1993, no writ) (citing to Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991)). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Worford, 801 S.W.2d at 109.
At the time of the hearing appealed from, Gerard Pecht had monthly net resources of $15,874.00. When the obligor's net monthly resources exceed $4,000.00,[4] the trial court presumptively applies the percentage guidelines set forth in the statute to the first $4,000.00 of the obligor's net resources. The court may then order additional amounts of child support, depending on the proven needs of the child at the time of the order.[5] Tex.Fam.Code Ann. § 14.055(c), amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 766, § 9, 1993 Tex.Gen.Laws 2989, 2997-98. Other provisions in the Family Code list other factors the trial court may consider when *801 determining the amount of child support to award. See Tex.Fam.Code Ann. §§ 14.052(b), 14.054 (Vernon Supp.1994). These factors, however, apply only to the first $4,000.00 of net resources. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 (Tex.1993).[6] Although Rodriguez involved the initial determination of child support to be included in the divorce decree, the reasoning of Rodriguez has been extended to cases involving the modification of a prior child support order. See Mai, 853 S.W.2d at 622 (following Rodriguez v. Rodriguez, 834 S.W.2d 369 (Tex.App.San Antonio 1992), rev'd on other grounds, 860 S.W.2d 414 (Tex.1993)).
The trial court ordered Gerard Pecht to pay $3,500.00 in monthly child support. Under Rodriguez, the first $1,000.00 of this amount is a presumptive award based on the statutory percentage guidelines.[7] Absent a contrary explanation by the trial court in its findings of fact, this presumptive award can encompass a number of factors that are not limited to the needs of the children. Rodriguez, 860 S.W.2d at 418. The additional $2,500.00 must be based solely on the needs of the children.[8]See id.; see also Golias v. Golias, 861 S.W.2d 401, 404 (Tex. App.Beaumont 1993, n.w.h.) (applying the rules set forth in Rodriguez).
The supreme court has declined to affirmatively define the term "needs," but has held that it does not include the lifestyle of the family or the income of the parties. Rodriguez, 860 S.W.2d at 417 n. 3. The supreme court, however, has further indicated that the child's needs are not limited to the bare necessities of life. Id. at 417 n. 3. The best interest of the child is the primary consideration when determining the child's needs. Tex.Fam.Code Ann. § 14.07(a) (Vernon Supp.1994); Rodriguez, 860 S.W.2d at 417 n. 3.
Both of the children have required psychotherapy. The children began seeing Sophia Havasy, a licensed clinical psychologist, in the spring and summer of 1992. Havasy testified at the trial. Based on Havasy's testimony, as well as Nancy Pecht's testimony, the trial court found that the Pechts' youngest son, Adam, has an attention deficit-hyperactivity disorder and suffers from an avoidant disorder with childhood, i.e., he has problems relating with children his own age; and that the oldest son, Jonathan, also has an attention deficit-hyperactivity disorder, suffers from a severe language learning disability, has motor planning difficulties, and is dyslexic. Havasy also testified that Jonathan has difficulty managing his emotional state and can be aggressive.
Both of the boys require medication to control their attention deficit disorder. Nancy Pecht was unable to estimate the monthly cost of the boys' prescriptions. Havasy also thought it would be necessary to work with the Pechts to come up with a behavioral plan to structure and manage the boys when they are at either parent's home. Havasy emphasized the need that children with an attention deficit disorder have for consistency and routine.
*802 Havasy testified that Adam needed further family and group therapy. The usual course of treatment involves nine to twelve months of therapy, then the child is evaluated. If the child is progressing acceptably, then there is another round of group therapy two or three years later. One session of group therapy is usually eight to twelve weeks long with meetings once a week and costs $70.00 for each meeting. Along with the group therapy, there are occasional family sessions scheduled on an as-needed basis. Each of these sessions costs $105.00. Havasy estimated that, for a year's worth of group therapy for Adam, possibly two or three family sessions would be required.
Havasy also testified that change is difficult for Adam, especially when the change makes a lot of demands on him, such as going back to school, and that Adam has voiced suicidal thoughts.
Havasy's recommended treatment for Jonathan is similar to Adam's recommended therapy. The expense would also be similar.
Jonathan currently attends a private school, and Havasy recommended that he continue attending the school because it is one of the best schools in the city for dealing with learning problems as severe as Jonathan's. Jonathan also requires speech therapy classes and participates in occupational therapy because of his motor planning difficulties caused by his inability to control his nervous system.
Havasy testified that attention deficit disorder is considered to be a chronic condition. There is no guarantee that group sessions will not be necessary next year, and the children have to be monitored because their problems may reoccur throughout their youth. Jonathan's problems in particular are chronic conditions, and he may need help at various times. Havasy opined that it is more likely that the children will need professional services down the road than it is that the children's problems will dissipate in the future.
The trial court found that the needs of the children include special health care, a special school for Jonathan, speech therapy, occupational therapy, psychotherapy, special summer camp, special child care needs, and special and extraordinary educational needs.
Nancy Pecht bought a new home in April 1991 and has monthly house payments of $2,547.00. In March 1990, the children and their mother had been living in a rental house with a monthly payment of $575.00. Gerard Pecht asserts that the house represents a lifestyle choice, not a need of the children, and that there is suitable housing in the same neighborhood for less than $2,500.00 a month.
Nancy Pecht testified that the house is an absolute necessity for the children. The house is located on a bus route for Jonathan's private school and allows Adam to go to a better elementary school. There are more children in the new neighborhood, which could be helpful in treating Adam's problem of interacting with children his own age, as well as Jonathan's problems with interpersonal relationships. Adam has matured in a lot of respects, and his mother attributes that to the fact that the location of the house allows Adam to walk to his elementary school.
Nancy Pecht pays a total of $1,020.00 a month for her full-time housekeeper. She explained that she needs dependable help to watch the children after school and on holidays, and the children need the consistency of having one caretaker.
There are other miscellaneous expenses that have increased as well. Nancy Pecht testified that she does more things with her children on the weekend and that, as the boys get older, their interests have expanded and these interests are more expensive, e.g., the boys play soccer and are in the Boy Scouts. See Hoffman v. Hoffman, 805 S.W.2d 848, 851 (Tex.App.Corpus Christi 1991, writ denied).
The private school that Jonathan attends no longer requires the students to wear uniforms, so Jonathan's clothing costs have increased. Jonathan may also need tutoring. Each of the boys attended special summer camps in 1992, which they apparently did not do in 1990. Camp fees and tutoring cost a total of $1,240.00 annually.
*803 The trial court also found that the parties had conflicts concerning what each party was supposed to pay under the court's previous support orders and conflicts concerning the needs of the children. The trial court determined that a flat monthly payment of $3,500.00 would be the appropriate solution to these disagreements. Under the circumstances, we cannot say that the trial court abused its discretion in its order modifying the amount of child support.
ATTORNEY'S FEES
Gerard Pecht contends that the trial court abused its discretion in awarding attorney's fees for post-trial services and appellate attorney's fees because there was no pleading and no evidence at trial to support the award of these fees.[9]
Reasonable attorney's fees may be awarded as costs in any suit affecting the parent-child relationship. Tex.Fam.Code Ann. § 11.18(a) (Vernon 1986). The decision to award attorney's fees is within the discretion of the trial court. MacCallum v. MacCallum, 801 S.W.2d 579, 587 (Tex.App. Corpus Christi 1990, writ denied). In order to be entitled to a discretionary award of attorney's fees, however, the movant must affirmatively plead for them unless the issue is waived or tried by consent. Id.
Nancy Pecht included the following plea in her motion to modify the child support orders:
It was necessary to secure the services of T. WAYNE HARRIS, a licensed attorney, to preserve and protect the children's rights. Respondent should be ordered to pay a reasonable attorney's fee, and a judgment should be rendered in favor of this attorney and against Respondent; or, in the alternative, such reasonable attorney's fees should be taxed as costs and be ordered paid directly to the undersigned attorney.
Nancy Pecht generally requested attorney's fees in her prayer for relief that does not specify whether she seeks these fees for the attorney's services at trial, post-trial events, or appellate work. Compare id. (striking award of attorney's fees for the appeal because movant had pleaded only for attorney's fees through "final judgment"). Gerard Pecht asserts that the pleading does not specifically ask for fees in the event of an appeal. If Gerard Pecht believed this pleading and prayer for relief to be too vague, he could have pointed out this flaw by special exception. He did not. Further, the purpose of the pleading is to give notice of the claim involved. Tex.R.Civ.P. 47(a). Nancy Pecht's claim and prayer for attorney's fees may fairly be said to contemplate attorney's fees throughout all stages of the litigation.
Dianne Richards, Nancy Pecht's attorney on appeal, testified at an interim hearing in April 1993 that, based on her experience as a lawyer and her evaluation of the issues in the case, $7,500.00 would be a reasonable and necessary fee for handling an appeal of the case. No other evidence was presented to show the reasonableness of the other amounts awarded for post-trial attorney's fees.[10]
The judgment of the trial court is modified to reduce the amount of attorney's fees, consistent *804 with the evidence, to provide only $7,500.00 as attorney's fees for all post-trial services in connection with the appeal. Otherwise, the judgment is affirmed.
NOTES
[1] This case originally came to this court styled "Gerard George Pecht v. Nancy Korte Pecht." The state legislature has eliminated the adversarial styling of petitions and motions in the family law context. Pleadings in a divorce or annulment suit should be entitled "In the Matter of the Marriage of __________ and ___________." TEX.FAM.CODE ANN. § 3.51 (Vernon 1993). The petition and other documents in a suit affecting the parent-child relationship should be entitled "In the interest of _____________, a child." TEX.FAM.CODE ANN. § 11.08(a) (Vernon 1986). This case, like many other domestic relations cases, was improperly titled in the pre-Code style. We have retitled this proceeding so as to conform it to the legislative mandate.
[2] Pecht was paying an average of $1,384.00 in monthly child support before the entry of the order from which he now appeals.
[3] Findings of fact in a case tried to the court have the same force and dignity as a jury's verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). In reviewing a no evidence point of error, we consider only the evidence and inferences that, when viewed in their most favorable light, tend to support the finding and disregard all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988). In reviewing the factual sufficiency of the evidence, we examine all of the evidence. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 458 (Tex.1989). The finding will be set aside only if the evidence standing alone is too weak to support the finding, or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); In re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951).
[4] Effective September 1, 1993, the amount is $6,000.00. See Tex.Fam.Code Ann. § 14.055(a) (Vernon Supp.1994).
[5] The legislature has changed this provision, effective September 1, 1993. The new statute reads:
Without further reference to the percentage recommended by these guidelines, the court may order additional amounts of child support as appropriate depending on the income of the parties and the proven needs of the child.
TEX.FAM.CODE ANN. § 14.055(c) (Vernon Supp. 1994) (emphasis added). These amendments to the statute apply to original or modified orders made on or after September 1, 1993, and do not affect an order in a suit affecting the parent-child relationship made before the effective date of the act, nor do the amendments constitute a change in circumstances for purposes of modifying a previous child support order. See Act of May 29, 1993, 73rd Leg., R.S., ch. 766, § 11, 1993 Tex. Gen.Laws 2989, 2999.
[6] Gerard Pecht argues that the trial court abused its discretion by considering the ability of the parents to contribute to the support of their children; however, this is a factor the trial court is statutorily authorized to consider, at least as to Pecht's first $4,000.00 in net resources, when varying from or when following the statutory child support guidelines. See Tex.Fam.Code Ann. § 14.052(b)(2) (Vernon Supp.1994).
[7] The applicable percentage for two children is twenty-five percent. TEX.FAM.CODE ANN. § 14.055(b) (Vernon Supp.1994).
[8] Effective September 1, 1993, the legislature added the following provision to the statute governing child support when an obligor has net resources exceeding $6,000.00:
The proper calculation of a child support order that exceeds the presumptive amount established for the first $6,000 of the obligor's net resources requires that the entire amount of the presumptive award be subtracted from the proven total needs of the child. After the presumptive award is subtracted, the court shall allocate between the parties the responsibility to meet the additional needs of the child according to the circumstances of the parties. However, in no event may the obligor be required to pay more than an amount equal to 100 percent of the proven needs of the child as child support.
TEX.FAM.CODE ANN. § 14.055(c) (Vernon Supp. 1994). The findings of fact and conclusions of law filed in the present case do not include a finding concerning the exact amount of the children's monthly needs.
[9] The trial court's award of attorney's fees for post-trial and appellate services:
If Respondent Requests Findings of
Fact and Conclusions of Law ........... $ 4,500.00
If Respondent Perfects Appeal to the
Court of Appeals ...................... 9,000.00
If Respondent Files an Application
for Writ of Error ..................... 7,500.00
If Respondent Files a Motion for Rehearing
....................................... 5,000.00
__________
TOTAL .................................... $26,000.00
[10] The appellee's brief asserts that Harris and Richards "testified to" some of these amounts; however, this is incorrect. When Harris and Richards do mention these sums, they were not giving evidence. Rather, they were arguing the merits of their motion for interim attorney's fees or were asking the court to reform the judgment to include the attorney's fees.
The attorneys did testify at the hearing on Gerard Pecht's motion for new trial that the challenged amounts would be a reasonable fee for their legal services. A hearing on a motion for new trial is not a means by which the case may be tried over or tried differently. Mushinski v. Mushinski, 621 S.W.2d 669, 671 (Tex.Civ.App. Waco 1981, no writ); Sandoval v. Rattikin, 395 S.W.2d 889, 891-92 (Tex.Civ.App.Corpus Christi 1965, writ ref'd n.r.e.), cert. denied, 385 U.S. 901, 87 S. Ct. 199, 17 L. Ed. 2d 132 (1966). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2439392/ | 268 S.W.2d 223 (1954)
POOL et al.
v.
BOYER et al.
No. 3151.
Court of Civil Appeals of Texas, Waco.
May 6, 1954.
Rehearing Denied May 27, 1954.
*224 Abney, Hammett & Lynch, Lampasas, H. W. Allen, Hamilton, Truman E. Roberts, Hico, for appellants.
Bryan, Maxwell, Bryan & Wilson, Waco, L. Brann, Lubbock, P. M. Rice, Hamilton, for appellees.
TIREY, Justice.
Appellants brought this action to set aside the last will and testament of Jasper Pool, their contest being grounded on undue influence practiced on the testator by appellees. The County Court of Hamilton County admitted the will to probate and contestants seasonably perfected their appeal to the District Court of that county. That court submitted one issue to the jury, namely: "Do you find from a preponderance of the evidence in this case that at the time of the making of the will in question herein, on March 5, 1949, the said Jasper Pool was induced to make said will by the exercise of undue influence upon him by Mrs. Bertie Boyer and Mrs. Bessie Blake, or either of them?", to which the jury answered "Yes." The court overruled contestants' motion for judgment and granted appellees' motion for judgment non obstante veredicto and decreed that the will of Jasper Pool be admitted to probate and that contestants of said will take nothing. The contestants seasonably perfected their appeal to this court.
The judgment is assailed substantially on the ground that there is evidence in the record sufficient to sustain the finding of the jury to the effect that the will of Jasper Pool was the result of undue influence exerted upon him by appellees.
Appellees contend in effect (1) that there is no evidence of probative force to establish that the will of Jasper Pool resulted from undue influence exerted upon him by contestees; and (2) that if there is any evidence showing that such will was the result of undue influence, then in such event it was insufficient to sustain the verdict of the jury, and in either event the court should have granted motion for judgment non obstante veredicto.
We quote the second and third sections of the will, which are pertinent here:
"Second: It is my will and desire that my two daughters Bertie M. Boyer and Bessie Blake, each receive the sum of Two Thousand Dollars out of my estate before the division thereof. I make this decision after the most careful consideration, not as a matter of favoritism, but because I think that they deserve it. It is given with the provision that neither of them will claim any additional compensation for their services, to care for me.
"Third: I also direct that my son Ernest M. Pool shall receive the sum of $400.00 out of my estate before the division thereof.
"After payment of the three legacies above mentioned, then the remainder of my estate shall be equally divided among my four children, Bertie M. Boyer, Bessie Blake, Ernest Pool and W. R. Pool and no others.
"I do not leave anything to the four children of my son John C. Pool for the reason that the said John C. Pool having been unfortunate in some of his business transactions and having been unwell a considerable portion of his life I have paid out money to him and for him in excess of what his just share would be. In order there may be no question about my intentions in this matter I leave to his children J. C. Pool, Jr., Louise Pool, Billie Pool and *225 Kenneth Pool the sum of One Dollar each."
Much has been written by our Supreme Court and our Courts of Civil Appeals on the question of undue influence as it relates to wills, and perhaps those decisions most helpful and applicable here will be found in Long v. Long, 133 Tex. 96, 125 S.W.2d 1034; Besteiro v. Besteiro, Tex.Com.App., 65 S.W.2d 759; Bergstedt v. Bender, Tex. Com.App., 222 S.W. 547; Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138. See also Hart v. Hart, Tex.Civ.App., 110 S.W. 91, no writ history; Craycroft v. Crawford, Tex.Com.App., opinion adopted, 285 S.W. 275. See also Stewart v. Miller, Tex.Civ. App., 271 S.W. 311, opinion by Chief Justice Gallagher; Rankin v. Rankin, 105 Tex. 451, 151 S.W. 527; Olds v. Traylor, Tex. Civ.App., 180 S.W.2d 511, writ ref., opinion by Chief Justice Rice; Barksdale v. Dobbins, Tex.Civ.App., 141 S.W.2d 1035, writ ref.; Goodloe v. Goodloe, 47 Tex.Civ.App., 493, 105 S.W. 533, writ ref.; Venner v. Layton, Tex.Civ.App., 244 S.W.2d 852, n. r. e.; Curry v. Curry, Tex.Civ.App., 265 S.W.2d 899.
Since the trial court disregarded the verdict of the jury and entered judgment for the contestees, it is our duty here to consider whether this record is entirely bare of facts which would justify the rejection of this will as a product of undue influence exercised over the mind of the testator by the contestees. In so doing we must bear in mind that the jury has found such undue influence and we must therefore indulge the presumption that the jury believed and accepted all probative evidence tending to support its verdict. The foregoing is substantially the statement of the rule in Point 10 in Long v. Long, supra.
In considering the testimony adduced, it is our duty to bear in mind the following rule which is in accord and substantially to the same effect as the rule we have just quoted; "Where the facts are controverted, or are such that a different inference may be reasonably drawn therefrom, an issue of fact is raised; it is only where the evidence is harmonious and consistent, and the circumstances permit of but one conclusion, that the question becomes one of law for the determination of the court. An issue of fact is raised `if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff.'" See Points 8 and 9, Olds v. Traylor, supra, and authorities there cited.
So we come now to a consideration of all of the facts and circumstances tendered by the evidence to determine whether or not the issue of undue influence was raised, and, if so, whether it is sufficient to sustain the jury's verdict.
Jasper Pool executed his last will and testament on the 5th of March, 1949, at which time he was 89 years, 11 months and four days old, and on the eighth day after the death of his son, John C. Pool. Jasper Pool died in August, 1952, at which time he was 93 years, four months and 28 days old. John was the father of the contestants. The testator was married one time only and he and his wife executed a will in which each willed to the other all property which the one predeceasing shall own. Testator's wife died in the Fall of 1929 and Jasper Pool took all of the title to the property and their children took nothing. John and his family moved into the Jasper Pool home after the death of his wife and they remained there until 1934. These contestants were all born while John and his wife were living in this immediate vicinity, some of them having been born in the home of the testator. In 1934 John and his family moved to Oklahoma and Mrs. Boyer, one of the appellees and a daughter of Jasper Pool, came to live with the testator and remained there until he died. Mrs. Blake, the other appellee, came to live with the testator and her sister in 1945 and lived there until testator's death. John C. Pool and his wife were divorced in 1947 in the State of Oklahoma *226 and thereafter he came back to Hamilton County and lived with his father until his death.
The record is silent as to any differences between Jasper and his son John, and the record justifies the jury in believing that the testator had equal regard for all of his children until he came to make his will in March, 1949. The jury had the right to draw such inference because after the death of testator's wife in 1929, if the testator had died his property would have passed to his children and grandchildren under the laws of descent and distribution, because his first will had bequeathed all of his property to his wife who preceded him in death. (The first will of the testator is not before us but as we understand the parties' briefs, his first will bequeathed all of the property to his wife). There was testimony that authorized the jury to believe the testator loved his grandchildren and that the grandchildren loved him.
Mrs. Boyer, one of the appellees, testified in part in some detail with reference to the transactions that John Pool had with his father. She seemed to be familiar with the way that John and his father operated, particularly in the handling of their cattle and goats. She testified to some of the transactions that John had concerning the buying of goats in Arkansas, as well as some cattle. She also testified to certain checks that she found in her father's bank statements where her father had paid for some of the cattle and goats purchased by John. She also had in her possession some papers which she said evidenced transactions between her father and John, one being a note for $760; that she assisted John in the buying of some cattle in Oklahoma and her sister also participated in some of the transactions that John had, but that she did not know how much money John made but that she and her sister got their money back that they put out on the Oklahoma deal. She testified to another transaction that she and her sister and testator had with John in which she said in effect that John owed her and her sister and her father $1,000, but that she and her sister got their part of the money out of the $1,000 and that their father absorbed this loss.
Testimony was tendered to the effect that Jasper Pool, prior to his death, borrowed approximately $4,100, for which he executed a deed of trust and note, and the court permitted Mrs. Boyer, over objection, to testify that this debt and deed of trust were made by Jasper Pool in order to pay John's debt. (The man who made the loan said he looked to Jasper for the money, but that he asked John to sign the note). She further testified in part: "Q. Were you even in town the day your father executed this will? A. No, sir. Q. When did you learn that the will had been executed? A. Well, after these children one time they had been down therewould always ask their grandpa how much they were going to get out of the estate. I heard them ask him one time * * *."
Louise Pool, one of the granddaughters and contestants, testified in part:
"Q. In the letters that you received from your grandfather did they ever have anything to say in bitterness toward you children? A. No, sir, not in the least.
"Q. Love and affection existed between all three of you all the way? A. Yes.
"Q. Louise, we have gone somewhat into your father's estate, did you all receive anything at all from your father's estate? A. No, sir, not a dime, we didn't get a dime.
"Q. Do you know whether he had anything when he came down here? A. He should have.
"Q. Do you know of your own knowledge that he did have? A. Yes.
"Q. What? A. One-half of what we had in Frederick?
"Q. What would that amount to? A. I would say about $2,000 or $2500.00.
*227 "Q. Was that in cash or goods? A. Well, he should have had that in cash.
"Q. He had some machinery or tools? A. Yes. * * *
"Q. Louise, referring to this old debt against your father and to your grandfather, who did you ever hear mention that? A. Well, we never did hear grandfather mention it. We were down here when Dad died and everytime we would think we had settled up what he owed, the doctor bill and funeral bill, they would bring up the old debt.
"Q. Who? A. Aunt Bertie and Aunt Bessie.
"Q. Bring it up more than once? A. Several times.
"Q. Your grandfather never mentioned it? A. No, sir.
"Q. Did your Aunt Bertie and Aunt Bessie make claim against you children for nursing fee for your father? A. Yes, they did."
The evidence tendered was to the effect that John's illness was from January 31st to February 25th, and that he was in the hospital for eleven days, and that the bill tendered by Mrs. Blake and Mrs. Boyer was $260, which amounted to $10 per day each for thirteen days. Except for the last illness of John Pool, it is not shown that he had any medical care that anyone other than himself had to pay. He was a World War I veteran and he was entitled to and availed himself of Veterans Administration hospitalization without cost on two separate occasions.
Evidence was tendered to the effect that Mrs. Boyer and Mrs. Blake had ill feeling against the contestants and their mother. Louise Pool testified to the effect that once, while she and the other grandchildren were there to visit their grandfather, that her Aunt Bertie Boyer and a daughter of Mrs. Blake, took a 22 rifle away from Mrs. Blake, and further testified:
"Q. When did the pistol come up? A. After they had taken the twenty-two.
"Q. How about this pistol; how did you know about that? A. Well, when they were going back in the house with the twenty-two I asked Aunt Bertie where she was going hunting, and she told me, no, that Aunt Bessie always lost her head when she saw my mother and that she just shouldn't come out there. About that time Aunt Bessie went back in the house and she was calling my mother all kinds of things and I had a fuss with her and she went on upstairs and she came back down and Billie was in the hall then, and she made the remark at that time that she loaded that gun six years ago to kill that black bitch and she was talking about my mother. Billie asked what was in the sack and she said it wasn't any `of his damn business.' And he took the sack away from her and it was a pistol.
"Q. Did you see her with another gun? A. No. I don't think there was another gun, but we were leavingso we got in my car and went to drive away.
"Q. Did your grandfather take any part in this? A. No, he tried to settle us all down, said he hated for it to come up."
Mrs. Boyer also testified to the effect that after she moved into the home of her father that she took care of him, bought the groceries, cooked for him and the hired man, nursed her father many times, and did the farming and took care of the stock, and that she was aided in these matters by her sister, Mrs. Blake, who came to live with her father and her sister in 1945; that she and Mrs. Blake drove him in the car when he had to travel farther than his restricted license permitted, which was approximately three miles to the store called "Shive"; however, Mrs. Boyer said that her father did at times drive his car farther than he was authorized to do *228 under his license, and that he had at times driven to Hamilton. No exact time or date was given, however. Mrs. Boyer also testified to the effect that her father rented the place to her and her sister in 1945 and at that time they talked with him about his making a will, but he made no will then.
The record here is silent as to who prepared the will of Jasper Pool; however, both parties assumed in their briefs that the will of Jasper Pool, here tendered for probate, was prepared by the Hon. P. M. Rice of Hamilton. Judge Rice did not testify. The record here shows that the will was executed by the testator in the County Clerk's office at the courthouse in Hamilton. There is an absence of testimony as to how the testator got in touch with Judge Rice; however, Mrs. Boyer testified to the effect that she did not know about the execution of the will until sometime after it was executed and she did not know how her father got to Hamilton but later learned that a former acquaintance by the name of Edwards took her father in a car to Hamilton. (Edwards was not tendered as a witness). There is an absence of testimony as to whether the will was prepared by Judge Rice on the day it was executed, as well as an absence of testimony as to who employed Judge Rice to prepare the will and who gave him the instructions as to the provisions of the will. The will was typewritten and was attested by three subscribing witnesses. There is no evidence that Jasper Pool had been in Hamilton at any time just prior to the time that he executed the will, or that he had seen and talked with Judge Rice.
Although the grandchildren testified that just after their father's death, while they were trying to talk with their grandfather about their father's business and what they would receive from his estate and that these conversations were broken up by their aunts, Mrs. Boyer and Mrs. Blake, yet none of these conversations were denied by Mrs. Boyer (Mrs Blake was not tendered as a witness), nor did Mrs. Boyer testify or make any explanation of the hostile feeling that the grandchildren said that she and Mrs. Blake exhibited toward them on their visits to their grandfather. These grandchildren further testified to the effect that in order to talk to their grandfather about their father's affairs and about what would happen to his property after his death, that the grandfather would have to take them away from the house and out of the presence of Mrs. Boyer and Mrs. Blake. Notwithstanding the fact that Mrs. Boyer attempted to acquit herself of all attempts to exert or exercise any influence upon her father in the preparing of this last will and that she knew nothing about it, she did not attempt to do so insofar as her sister Mrs. Blake was concerned, and since she was an interested witness under all the facts and circumstances, the credibility of her testimony necessarily had to be submitted to the jury. Flack v. First National Bank of Dalhart, 148 Tex. 495, 226 S.W.2d 628, points 9-10, page 633. Also Texas & N. O. R. Co. v. Pool, Tex. Civ.App., 263 S.W.2d 582, 590, pt. 10, and authorities there collated.
Since there was no testimony tendered as to when and where the scrivener of the will got the information that was placed therein, and since Mrs. Blake and Mrs. Boyer did not attempt to explain their hostility to the grandchildren and contradict the testimony of the contestants, and particularly with reference to Mrs. Boyer's and Mrs. Blake's efforts to interfere with contestants while contestants were talking to their grandfather immediately following their father's death as herein set out, it is our view that their silence under the circumstances is of probative force on the issue of undue influence exerted by them upon the testator. See Craycroft v. Crawford, supra, point 5, and cases there cited. See also Taylor v. Taylor, Tex.Civ.App., 248 S.W.2d 820, no writ history, point 5 on page 824, and cases there cited; Moos v. First State Bank of Uvalde, Tex.Civ. App., 60 S.W.2d 888, writ dis.; 31 C.J.S., Evidence, § 156, page 847; Matthews v. Wilson, Tex.Civ.App., 141 S.W.2d 747, point 1; 64 C.J. 513; 16 Texas Digest, Evidence.
*229 In Sullivan v. Fant, Tex.Civ.App., 160 S.W. 612, 616, writ ref., we find this statement of the rule: "`When the proof tends to establish a fact and at the same time discloses that it is within the power and to the interest of the opposing party to disprove it, if false, the silence of the opposing party not only strengthens the probative force of the affirmative proof but of itself is clothed with a certain probative force.'"
The testimony tendered in this record consists of approximately 100 pages of legal size typewritten pages. Necessarily we cannot set out every fact and circumstance in this record which we think pertinent and favorable to the contestants, but we have examined all of the testimony tendered with great care, in the light of the rule stated by our Supreme Court in Long v. Long, supra, and Olds v. Traylor, supra, and the other cases here cited, and after so doing, and since the jury found that undue influence was exercised on the testator, it is our considered view that the record on the whole tenders the issue of undue influence exerted by appellees upon Jasper Pool, and that it is sufficient to sustain the finding of the jury thereon.
In Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, our Supreme Court has recently made this statement of the rule, which is here applicable: (A) In order "to sustain the action of the trial court in granting judgment non obstante veredicto, it must be determined that there is no evidence having probative force upon which the jury could have made the findings relied upon" and (B) "`it was the jury's province to weigh all the evidence, to decide what credence should be given to the whole or to any part of the testimony of each witness. "The jury were the judges not only of the facts proved, but of the inferences to be drawn therefrom, provided such inferences were not unreasonable."'" Points 5-6, 249 S.W.2d at page 199.
It is our view that the application of the foregoing rules to the factual situation here require us to reverse and render the judgment of the District Court of Hamilton County and enter judgment denying the probate of the last will and testament of Jasper Pool.
Accordingly, the judgment of the District Court of Hamilton County is reversed and rendered and the order admitting the last will and testament of Jasper Pool to probate is set aside, vacated and held for naught, and it is the further order of this court that this judgment be certified to the District Court of Hamilton County and to the County Court of Hamilton County for observance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2439408/ | 268 S.W.2d 539 (1954)
TRADERS & GENERAL INS. CO.
v.
ROOTH.
No. 3170.
Court of Civil Appeals of Texas, Waco.
May 20, 1954.
Rehearing Denied June 10, 1954.
*540 Butler, Binion, Rice & Cook, Houston, for appellant.
Hill, Brown, Kronzer & Abraham, Houston, Wellborn & Britt, Alvin, for appellee.
McDONALD, Chief Justice.
This is a Workmen's Compensation case in which the Trial Court, upon the verdict of the jury, entered a judgment for (Plaintiff) Appellee. Appellee was employed as a driller for the R & M Well Servicing and Drilling Company. He alleged that on 21 October 1951 he suffered accidental injury to his "head and brain and the supporting structure thereof" while performing the duties of his employer; and while bent in a position where his head was below the level of his feet, undertaking to screw a pressure gauge into a valve. While in this position, as a result of strain, he suffered a rupture of an aneurysm (a weak spot in a blood vessel) in his head near the base of the skull, thereby producing a subarachnoid hemorrhage; that his injuries have resulted in total and permanent disability.
Trial was to a jury, which returned a verdict for Appellee, and upon which the Trial Court entered a judgment for Appellee for total and permanent disability benefits.
Appellant (Defendant Insurance Carrier) appeals on 4 Points but which present *541 3 basic contentions: 1) That there is no evidence, or there is insufficient evidence that Appellee sustained accidental injury; 2) That the Trial Court erred in its definition of "producing cause"; 3) That there was no evidence or insufficient evidence to support the jury's finding that Appellee was totally and permanently disabled.
In connection with Appellant's 1st Point, viz.: that there is no evidence or insufficient evidence that Appellee sustained an accidental injury, Appellant contends that before Appellee can recover there 1) must be an accident and that 2) the accident must result in injury; and that there could be no accident in the case at bar since Appellee could have suffered no strain in turning the screw, greater than that caused by any of his ordinary and usual activities. Appellant contends that the aneurysm was present in Appellant from birth or for a long time and that normal activity would have and did cause it to ruptureand for such reason the injury was not caused by accident and is not compensable under the Act. Appellant further contends that the onset of the injury preceded the Appellee's attempt to screw the pressure gauge.
We cannot agree with Appellant's position or contentions. The record reflects that the witnesses Nance and Hill testified that Appellee appeared to be in good health and made no complaints of headaches prior to screwing the gauge into the valve. Further, Appellee denied that he was suffering any difficulty prior to attempting to screw the gauge into the valve.
The record further reflects that Dr. Schnur and Dr. Brown both testified that the incident described by the witnesses produced and caused the hemorrhage. Dr. FountainAppellant's witnesstestified that the onset of such a hemorrhage often occurs after physical exertion. Appellee's position with his head lower than the level of his feet, together with the effort immediately preceding the onset of the hemorrhage, were such as to produce strain on Appellee. The fact that Appellee may have been afflicted for a long time or since birth with the aneurysm does not alter his right to recover. Compensation benefits can be awarded if the workman, as a result of job exertion, sustains hemorrhages, ruptures or heart attacks, notwithstanding the fact that predisposing factors contribute to the incapacity or death. Texas Employers Ins. Ass'n v. Smith, Tex.Civ.App., 235 S.W.2d 234; Federal Underwriters Exchange v. Polson, Tex.Civ.App., 148 S.W.2d 956, W/E Dis.; Southern Underwriters v. Hoopes, Tex.Civ.App., 120 S.W.2d 924, W/E Dis.; Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581.
And so it is that whatever the physical condition of the individual may be, if it is such that it requires some physical exertion or strain to cause the rupture, the injury is properly classed as an accidental one. Texas Employers Ins. Ass'n v. McGrady, Tex.Civ.App., 296 S.W. 920, W/E Dis.
The jury believed from the evidence that the unusual position Appellee had assumed in his attempt to insert the gauge into the valve, as well as the difficulties he had in performing the operation, was not only unusual, but that it constituted strain and resulted in the rupture of the aneurysm, producing his incapacity. The jury had the right to so believe. The rule is that after disregarding all adverse evidence and considering the evidence most favorable to Appellee, giving it all reasonable conclusions and inferences that might be drawn therefrom, if such evidence is of sufficient probative force that reasonable minds might differ as to the ultimate conclusion to be reached, it will be held that the evidence supports the judgment. See: Hood v. Texas Indem. Ins. Co., 146 Tex. 522, 209 S.W.2d 345; Aetna Cas. & Sur. Co. v. Isensee, Tex.Civ.App., 211 S.W.2d 613, W/E Ref. N.R.E.; Associated Emp. Lloyds v. Self, Tex.Civ.App., 192 S.W.2d 902; Associated Emp. Lloyds v. Groce, Tex.Civ.App., 194 S.W.2d 103, W/E Ref. N.R.E.
We believe that the evidence, viewed in a light most favorable to the verdict, is ample and sufficient to sustain the judgment.
*542 Appellant's 2nd Point contends that the Trial Court erred in defining "producing cause" to be "an efficient, exciting, or contributing cause which in a natural and continuous sequence produces incapacity." Appellant complains that the above definition does not embody the requirement "that the cause must be such that without it the incapacity would not have occurred."
Our courts have held that it is not necessary to define "producing cause"; but if definition be undertaken it must be correctly defined. The object of correct definition is to present a proper and correct concept or understanding of what is meant. There are no stereotyped words, which exclusive of all other means of expression, can be said to define "producing cause". It may be correctly defined in a variety of ways. It has been held that "producing cause" must express causation in fact; Pacific Indem. Co. v. Arline, Tex.Civ.App., 213 S.W.2d 691 (Er.Dis.Agr.); that "producing cause" of incapacity or death is such as naturally resulted in incapacity or death, Lewis v. Texas Emp. Ins. Ass'n, Tex.Civ. App., 197 S.W.2d 187; that the terms "producing cause" and "natural result" are synonymous, Strong v. Aetna Casualty & Surety Co., Tex.Civ.App., 170 S.W.2d 786; that "producing cause" means such injury as would naturally result in disability, Texas Employers Ins. Ass'n v. Hitt, Tex.Civ. App., 125 S.W.2d 323; whether injury is a "producing cause" of disability depends on whether there is continuity of the chain of causation between injury and disability. Traders & General Ins. Co. v. Turner, Tex. Civ.App., 149 S.W.2d 593, Er.Dis.Judg.Correct; that there is no difference between the terms "cause" and "producing cause", Traders & General Ins. Co. v. Ray, Tex. Civ.App., 128 S.W.2d 80, Er.Dis.Judg.Correct; and finally, Webster's Dictionary, 5th Edition, defines the word "cause" to be: "that which occasions a result; that which produces or contributes to a result; that which brings about * * *."
We believe that the definition as given by the Trial Court conveys and presents the correct concept of what is meant by the term "producing cause".
A workman can recover compensation benefits if a job incident contributes to cause his incapacity. Texas Indemnity Ins. Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026; Travelers' Ins. Co. v. Peters, Tex.Civ.App., 3 S.W.2d 568affirmed Tex. Com.App., 17 S.W.2d 457. In other words, a predisposing bodily infirmity will not preclude or reduce compensation benefits if the ultimate incapacity is contributorily caused by an accident arising out of the employment. Further, the Peters case, supra, cited with approval by the Commission of Appeals, defines "producing cause" in the same manner as the Trial Court submitted it in the case at bar. Travelers Ins. Co. v. Johnson, Tex.Civ.App., 84 S.W.2d 354, W/E Dis., is directly in point and holds that a definition of "producing cause" almost identical to the definition in the case at bar, and not containing "and without which the death would not have occurred", was not error, and that all that is necessary to be shown in a proper definition is that the injury was the producing cause of the death or disability, "producing" being defined to be the cause bringing about; the natural cause; or such cause as naturally resulted in death (or injury).
We hold that the definition as given by the Trial Court is not error.
Appellant's 3rd Point complains that there was no evidence or insufficient evidence to support a finding of total and permanent disability. A review of the record reflects ample testimony to sustain the finding of the jury. The Appellee testified as to the difficulties he had in working; other lay witnesses who knew him before and after the accident testified; and the Veterans Administration doctor testified that he should "not participate in any activity" that required him to lift or to strain, due to the fact that he might rupture the aneurysm again. Appellant cites evidence favorable to its contention, wholly disregarding the testimony of the witnesses of Appellee, Mr. Nance, Mr. Hill, Mr. Ford, Dr. Schnur, Dr. Brown and Dr. Fountain, all of whose testimony supports the finding of total and permanent disability. The testimony of the above witnesses is abundant *543 to support the proposition that Appellee sustained brain damage, resulting in nervousness, headaches, loss of weight, tiredness, and lack of vitality, and that he will be permanently unable to engage in tasks requiring lifting or straining, and that if he gives a truthful statement of his condition to a prospective employer he will be unable to secure employment. The fact that Appellee has taken employment (at a much less gainful remuneration than he received prior to his accident) because of his necessitous circumstances, does not militate against the undisputed medical opinion, that in doing and performing the work he is doing or is attempting to do, he is imperiling his life.
All of Appellant's Points have been carefully considered, and it being our conclusion that they present no reversible error, the judgment of the Trial Court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2439428/ | 970 N.E.2d 632 (2009)
386 Ill. App. 3d 1137
PEOPLE
v.
HUNTER.
No. 5-08-0268.
Appellate Court of Illinois, Fifth District.
February 10, 2009.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2439473/ | 968 N.E.2d 83 (2012)
360 Ill. Dec. 4
PEOPLE
v.
COLEMAN.
No. 113633.
Supreme Court of Illinois.
March 1, 2012
Disposition of Petition for Leave to Appeal Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440191/ | 242 F.Supp.2d 474 (2003)
Jacquelyn FIZER-JORDAN, Plaintiff,
v.
James W. ZIGLAR, Commissioner, Immigration and Naturalization Service, Defendant.
No. CIV. 02-72648.
United States District Court, E.D. Michigan, Southern Division.
January 23, 2003.
*475 Jacquelyn Fizer-Jordan, In Pro Per, Detroit, MI, for plaintiff.
Derri T. Thomas, Assistant United States Attorney, Detroit, MI, for defendant.
MEMORANDUM OPINION AND ORDER
ANNA DIGGS TAYLOR, District Judge.
I.
This is a pro se action brought by Jacquelyne Fizer-Jordan, a female veteran who claims less than 30 percent disability status, against the Immigration and Naturalization Service ("INS"). Fizer-Jordan was employed with the INS at the time of the events alleged in her complaint, but has since accepted a position with the United States Marshals Service.
In September 1998, Fizer-Jordan filed an EEO complaint against the INS alleging discrimination on the basis of race (black), sex (female) and disability (physical) because she was not selected for certain positions for which she applied under the Vietnam Era Veterans' Readjustment Act ("VEVRA")[1] Program. On October 18, 2000, following investigation of Fizer-Jordan's complaint, a Final Agency Decision ("FAD") finding no discrimination was issued. The FAD noted that "no evidence in the record exists to indicate that complainant's past work experiences rendered her significantly more qualified for those positions than the selectees."
Fizer-Jordan appealed to the EEOC, which affirmed the FAD on April 18, 2002. The EEOC found that, even if Fizer-Jordan could establish a prima facie case of race, sex, or disability discrimination, she had failed to set forth any persuasive evidence that the agency's articulated legitimate nondiscriminatory reason for not choosing her for the positions in question, which was that she was not the most qualified applicant, was pretextual.
On July 29, 2002, Fizer-Jordan filed this complaint, in which she alleges that she applied for a number of positions within the INS that were posted under the VEVRA program, but was not selected.[2]*476 Fizer-Jordan contends that others who were not veterans with a disability of 30 percent or more were chosen over her in violation of VEVRA.
II.
This is a motion for dismissal pursuant to Fed.R.Civ.P. 12(b)(6).[3] Although a liberal standard of review is applied to a complaint when examined under Rule 12(b)(6), more than a bare assertion of legal conclusions is required. LRL Properties v. Portage Metro Hous. Auth., 55 F.3d 1097, 1103 (6th Cir.1995). Therefore, " `a ... complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'" Id. (quoting Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)). Moreover, this Court "need not accept as true legal conclusions or unwarranted factual inferences." Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976).
III.
Fizer-Jordan states that whether "other personnel were more qualified is not the issue, the issue is that the announcements were listed as VEVRA Program, and by law, the person should have been an eligible VEVRA candidate with a disability of 30% or more that could have been selected over me." Under even the most liberal reading of the complaint, Fizer-Jordan's claim is that the Defendants violated VERA.[4] VEVRA expressly provides a remedy through an administrative enforcement scheme. Harris v. Adams, 873 F.2d 929, 932 (6th Cir.1989).
The case law cited by the Defendants in support of their positionthat VEVRA does not expressly provide for, nor does it impliedly authorize, private actionsspeaks only to private right of action under § 4212. However, Fizer-Jordan's claim is for a private right of action under § 4214. Whether Fizer-Jordan has a private right of action under the Vietnam Era Veterans' Readjustment Assistance Act (VEVRA), 38 U.S.C. § 4214, is a question of first impression within the Sixth Circuit.[5]
To determine whether a private right of action is implicit in a statute, courts consider:
*477 (1) whether the plaintiffs are members of the class for whose particular benefit the statute was intended; (2) whether the legislature intended to authorize private actions; (3) whether a federal cause of action would further the underlying purpose of the legislative scheme; and (4) whether the asserted private action is one traditionally reserved for state law, such that it would be inappropriate to infer a federal cause of action. See Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 3234, 92 L.Ed.2d 650 (1986); Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) (the four-factor "Cort test").
While all the Cort factors are to be considered, "the second onecongressional intentis the most significant." Harris, 873 F.2d at 932.
Section 4212: Veterans' employment emphasis under Federal contracts, provides:
(a) (1) The United States has an obligation to assist veterans of the Armed Forces in readjusting to civilian life.... It is, therefore, the policy of the United States and the purpose of this section to promote the maximum of employment and job advancement opportunities within the Federal Government for qualified covered veterans who are qualified for such employment and advancement.
* * * * * *
(c) Each agency shall include in its affirmative action plan for the hiring, placement, and advancement of handicapped individuals in such agency as required by section 501(b) of the Rehabilitation Act of 1973 (29 U.S.C. 791(b)) a separate specification of plans ... to promote and carry out such affirmative action with respect to disabled veterans in order to achieve the purpose of this section.
The Court of Appeals in Harris applied the factors from Cort to Section 4212 and found that there was no evidence of congressional intent to create a private right of action and that implying one would conflict with VEVRA's legislative scheme. 873 F.2d at 932.
Section 4214: Employment within the Federal Government, provides:
(a)(1) The United States has an obligation to assist veterans of the Armed Forces in readjusting to civilian life since veterans, by virtue of their military service, have lost opportunities to pursue education and training oriented towards civilian careers.... It is, therefore, the policy of the United States and the purpose of this section to promote the maximum of employment and job advancement opportunities within the Federal Government for disabled veterans and certain veterans of the Vietnam Era and of the post-Vietnam Era who are qualified for such employment and advancement.
* * * * * *
(c) Each agency shall include in its affirmative action plan for the hiring, placement, and advancement of handicapped individuals in such agency as required by section 501(b) of the Rehabilitation Act of 1973 (29 U.S.C. 791(b)), a separate specification of plans ... to promote and carry out such affirmative action with respect to disabled veterans in order to achieve the purpose of this section.
After applying the Cort factors to Section 4214, the Courts of Appeals in the Third and Tenth Circuits have found that no private right of action is available. Antol v. Perry, 82 F.3d 1291 (3rd Cir.1996); Suazo v. Regents of Univ. of Ca., 149 F.3d 1191, 1998 WL 339714, 1998 U.S.App. LEXIS 13581 (10th Cir.1998); see also Cook v. Heifer, 1996 WL 464038, 1996 U.S. Dist. LEXIS 11704, (D.Mass. Aug. 9, 1996); But cf. Blizzard v. Dalton, 876 *478 F.Supp. 95, 98-99 (E.D.Va.1995).[6] The core rationale of Antol and Suazo springs from the understanding that, while "congressional silence is not necessarily fatal to implication of a private right of action, `implying a private right of action on the basis of congressional silence is a hazardous enterprise at best.' " American Fed'n of State, County & Mun. Employees v. Private Indus. Council, 942 F.2d 376, 379 (6th Cir.1991) quoting Osborn v. American Ass'n of Retired Persons, 660 F.2d 740, 745 (9th Cir.1981) (quoting Touche Ross & Co. v. Redington, 442 U.S. 560, 571, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979)). The parallel reasoning provided by our sister circuits in their analysis of Section 4214 is persuasive and, as such, militates against creating a private right of action where none was so intended.[7]
In the instant case, Fizer-Jordan cannot prove a set of facts which would entitle her to relief because she is not entitled to bring a private cause of action under 38 U.S.C. § 4214. Antol. 82 F.3d at 1291; Suazo, 1998 WL 339714, 1998 U.S.App. LEXIS 13581. Furthermore, to the extent that the Fizer-Jordan's complaint seeks money damages, the action cannot be maintained; 38 U.S.C. § 4214 does not waive the federal government's sovereign immunity. See Antol, 82 F.3d at 1291.
Dismissal of this complaint pursuant to Rule 12(b)(6) is appropriate where, as here, it is clear that the plaintiff can prove no set of facts which would entitle her to relief. See Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir.1996), cert, denied, 520 U.S. 1251, 117 S.Ct. 2409, 138 L.Ed.2d 175 (1997). Accordingly, the dismissal of this complaint must be GRANTED.
For the foregoing reasons,
IT IS ORDERED that the Defendant's Motion to Dismiss is GRANTED.
IT IS SO ORDERED.
NOTES
[1] The VEVRA is sometimes referred to as the Veterans' Readjustment Act ("VRA").
[2] Specifically, Fizer-Jordan asserts that "[t]he vacancy announcements (EEO-96-02, EEO-96-04, EEO-97-02) were announced under VEVRA ... [and therefore,] [t]he person hired for these positions should have been a disabled veteran." In her District Court complaint, there is no mention of an allegation of discrimination based on race or sex. Even if such an allegation did exist, it is well-established that "Title VII is the exclusive judicial remedy for claims of employment discrimination based on [race and sex] brought by federal employees." Brown v. General Services Administration, 425 U.S. 820, 829-33, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Boddy v. Dean, 821 F.2d 346, 352 (6th Cir.1987).
[3] In the Defendant's brief there is some indication that it is also moving for dismissal pursuant to Fed.R.Civ.P. 12(b)(1). Where "subject matter jurisdiction is challenged pursuant to Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990). The "court is empowered to resolve factual disputes when subject matter jurisdiction is challenged." Id. Because the Court has reached the 12(b)(6) motion, it is implicit that, insofar as this motion is made pursuant to Rule 12(b)(1), it is denied.
[4] Although the Plaintiff makes reference to her EEO complaint, she does not state any claims under Title VII or the Rehabilitation Act in her district court complaint. To the extent that she alleges racial or sex discrimination, those claims are properly brought under Title VII. The holding of this court is limited to the claims brought pursuant to VEVRA, 38 U.S.C. § 4214.
[5] The Sixth Circuit has addressed the issue of whether there is a private right of action under 38 U.S.C. § 4212. See Harris v. Adams, 873 F.2d 929, 931-32 & n. 2 (6th Cir.1989) (holding that there is no private right of action under 38 U.S.C. § 4212).
[6] In Blizzard the District Court, in finding a private right of action under § 4214, stated that: "[A finding that 4214 is analogous to 4212] fails to distinguish between a federal contractor as an employer and the federal government as an employer * * * [Such an] argument ignores the distinction within both the Rehabilitation Act and VEVRA between the federal government as an affirmative action employer and a federal contractor as an affirmative action employer. See 29 U.S.C. §§ 501, 504; 38 U.S.C. §§ 4212, 4214.... Because the reference to Rehabilitation Act section 501 within VEVRA section 403(c) directly connects Plaintiff to an express right of action, the Court finds Plaintiff has stated a claim for relief and a specific waiver of sovereign immunity." 876 F.Supp. 95, 98-99.
[7] In analyzing Section 4214 to determine whether a private right of action exists, "[t]he crucial question is whether Congress intended to create such a right." Antol, 82 F.3d at 1298 (quoting American Tel. & Tel. Co. v. M/V Cape Fear, 967 F.2d 864, 866 (3d Cir. 1992)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2439603/ | 268 S.W.2d 546 (1954)
MERRITT et al.
v.
RYNO.
No. 3189.
Court of Civil Appeals of Texas, Waco.
May 27, 1954.
F. R. Valentine, Q. Z. Valentine, Waco, for appellants.
W. M. Zachry, and Robert L. Frazier, Waco, for appellee.
TIREY, Justice.
Appellee, James William Ryno, a married man, brought this action against B. B. Merritt and Morris R. Wood to cancel a warranty deed which he and his first wife, Lois Katherine Ryno, had executed and delivered to B. B. Merritt and Sallie V. Merritt and to cancel the vendor's lien and contract lien retained in the deed to secure one note in the principal sum of $1575, bearing date January 15, 1953, payable in installments beginning on the 15th of February, 1953, said deed purporting to convey Lot 11 in Block 2, Baylor Addition to the City of Waco, McLennan County, Texas, and also to cancel a certain warranty deed executed and delivered by B. B. Merritt and wife, Sallie V. Merritt, to Morris R. Wood, such deed bearing date March 20, 1953, which deed conveyed property heretofore described, and recited a consideration of $844 paid and received from Morris R. Wood, and the further consideration of the cancellation of the note for $1575 heretofore referred to. The action is grounded on the allegation that the deed from Ryno and his first wife was a simulated transaction wherein the property was conveyed to Merritt and his wife for the purpose of creating an apparent lien on the homestead of Ryno and wife, with the promise and agreement on the part of Merritt to reconvey the property to Ryno after the sale and transfer of the note for $1575. The appellee sought cancellation of his deed to Merritt and wife and the deed from Merritt and wife to Wood on the theory that the entire transaction was fictitious and that the attorneys for Wood, who passed the *547 title and prepared the papers, were fully aware of the fact that such transaction was simulated, and sought relief by asking that the deed from Ryno and his wife to Merritt and his wife be cancelled, and that the deed from Merritt and wife to Morris be canceled. At the close of the testimony defendants Merritt and Wood filed their motions for instructed verdict, which were overruled, and the jury in its verdict found substantially that the deed from Ryno and wife to Merritt was a simulated sale of the homestead to create a loan thereon; that defendant Morris R. Wood knew or should have known that the deed of date January 15, 1953, aforesaid, was a simulated sale of the homestead to create a lien thereon. The court granted Ryno's motion for judgment on the verdict and decreed that the deed from Ryno and wife dated January 15, 1953 be canceled; that the lien placed on Lot 11, Block 2, Baylor Addition to the City of Waco, McLennan County, Texas, be canceled, and further decreed that the deed executed by Merritt and wife to Morris R. Wood, dated March 20, 1953, be canceled, and that title to Lot 11, Block 2, Baylor Addition to the City of Waco, McLennan County, Texas, be reinvested in the plaintiff James W. Ryno, and directed the Clerk to issue his writ of possession. Defendants seasonably filed their motion for new trial, which was overruled, and they perfected their appeal to this court.
The judgment is assailed substantially on the ground that the court erred in granting judgment in favor of appellee Ryno for the reason that all necessary and indispensable parties were not before the court and by reason thereof the court had not acquired jurisdiction to render judgment disposing of the subject matter of this litigation. We are in accord with this view.
This record is without dispute that the property at the time Ryno and wife conveyed it to Merritt and wife was the homestead of Ryno and his former wife, Lois Katherine Ryno. Plaintiff filed his original petition on March 25, 1953. Subsequent to the execution of the deed by Ryno and his former wife under date of January 15, 1953, and prior to the trial of this case in October, 1953, Ryno's first wife, Lois Katherine Ryno, had divorced him (the exact date not given) and had remarried. Ryno, subsequent to his wife obtaining a divorce from him, remarried and was living with his second wife at the time of this trial and at the time judgment was entered. It is true that Lois Katherine Hamrick (former wife of Ryno) was present and testified on the trial of this case, but she was not a party defendant nor plaintiff. It is likewise true that Merritt's wife, Sallie V. Merritt, was present and testified on the trial of this cause, but she was not a party to the suit.
In Barmore v. Darragh, Tex.Civ.App., 227 S.W. 522 (no writ history) we find these general statements, which are substantially to the effect that where the record brings to the notice of an appellate court that necessary parties have been omitted from the suit, it will refuse to render a judgment; it would not be binding upon the parties, and would render the action nugatory and vain; the failure to make the necessary parties to the suit is fundamental error, and must be considered by an appellate court if discovered by it; necessary or indispensable parties include all persons whose interests will necessarily be affected by any decree that may be rendered; and no court should render a judgment or decree when it is apparent that all parties are not before it. Under such circumstances the court will itself raise the objection and refuse to proceed to judgment.
Our Supreme Court in Sharpe v. Landowners Oil Ass'n, Tex.Com.App., 127 Tex. 147, 92 S.W.2d 435, 436, made this statement of the rule: "It is settled beyond all question in this state that in a suit to cancel a written instrument all persons whose rights, interests, or relations with or through the subject-matter of the suit will be affected by the cancellation are necessary parties. (Citing cases.) The absence of a necessary party in a suit for cancellation is fundamental and jurisdictional to *548 such extent that it must be considered by this court." Citing Barmore v. Darragh, supra. Our Supreme Court has not seen fit to alter the rule applied by Judge German in Sharpe v. Landowners Oil Association, supra. See also Rogers National Bank of Jefferson v. Pewitt, Tex.Civ.App., 231 S.W.2d 487, and cases cited under point 4, at page 489 (writ ref.). The Sharpe case, supra, has also been cited as authority in other jurisdictions. See Hunt v. McWilliams, 218 Ark. 922, 240 S.W.2d 865, point 2, at page 867.
Since Ryno and his wife conveyed the property to B. B. Merritt and wife, Sallie V. Merritt, Mrs. Merritt is a necessary and indispensable party. See Business Men's Oil Co. v. Priddy, Tex.Com. App., 250 S.W. 156, points 2 and 3, on page 158. See also 9 C.J. 1225; 12 C.J.S., Cancellation of Instruments, § 52; 32 Tex.Jur. 128, 129, § 88; page 140, § 98. See also cases collated in 6 Tex.Dig., Cancellation of Instruments.
In McDonald v. Miller, 90 Tex. 309, 39 S.W. 89, 95 we find this statement of the rule that is applicable here: "To make one having an interest in an action a party, the petition must make him a party; and, if he does not voluntarily appear, he must be cited. That he knows of the existence of the suit, and could have intervened, makes no difference. The right of intervention, which is allowed by our laws, is a privilege, and not a duty." Our Supreme Court has not seen fit to change this rule. See Shaffer v. Schaleben, Tex.Civ. App., 236 S.W.2d 234 (n.r.e.).
Because of the fact that this cause will have to be re-tried, we refrain from any discussion of the testimony tendered. On retrial we think we should add that the admission of evidence is controlled by the rule announced in Bradshaw v. McDonald, 147 Tex. 455, 216 S.W.2d 972. See also Segal v. Saunders, Tex.Civ.App., 220 S.W.2d 339 (n.r.e.); Henderson v. Jimmerson, Tex.Civ.App., 234 S.W.2d 710 (n.r.e.); and Humble Oil & Refining Co. v. Atwood, Tex., 244 S.W.2d 637, writ certiorari denied by S.Ct. of U.S., 345 U.S. 970, 73 S. Ct. 1112, 97 L. Ed. 1387.
Because of the views heretofore expressed, the judgment of the trial court is reversed and the cause remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2439520/ | 268 S.W.2d 3 (1954)
LETAW et al.
v.
SMITH, Chancellor.
No. 5-391.
Supreme Court of Arkansas.
May 10, 1954
Dissenting Opinion May 31, 1954.
Rehearing Denied June 7, 1954.
Abe L. Roberts, Marvin Brooks Norfleet, Memphis, Tenn., for petitioner.
Everard Weisburd, West Memphis, Jake Brick, West Memphis, John A. Fogleman, Marion, and Elton A. Rieves, Jr., West Memphis, for respondent.
WARD, Justice.
On August 6, 1953 petitioner, Letaw, filed a complaint in the Chancery Court of Crittenden County against Doyne Dodd. On August 10, 1953, the clerk of the chancery court wrote one of the petitioners, Roberts, who was Letaw's attorney and lived in Memphis, Tennessee, that he had not complied with a rule of the Chancery Court of Crittenden County (which will be set out and discussed later) to the effect that it would be necessary to associate with him in the case local Arkansas counsel. Associated with Roberts as one of Letaw's attorneys in the case was petitioner Norfleet *4 who was also a resident of Memphis, Tennessee.
On August 11, 1953, Roberts and Norfleet, for themselves and as attorneys for Letaw, filed a motion in the Crittenden County Chancery Court stating: That Roberts is now and has been at all material times a resident citizen of Memphis, a practicing lawyer licensed to practice in the Supreme Court of Tennessee and all the courts of Tennessee; that Norfieet is and has been a practicing lawyer at Memphis, Tennessee, licensed to practice in the Supreme Court and all other courts of that state, that he is and has been licensed to practice in the Supreme Court and all other courts in Arkansas, and that Norfieet had been a resident of Forrest City, Arkansas, up until July, 1952, when he became a resident of Memphis, Tennessee, and that the rule which the chancery court seeks to enforce is void as being arbitrary, unreasonable, and violative of comity between Arkansas and Tennessee with reference to the practice of law within the United States of America, etc. The prayer in the motion was that the court relax the said rule insofar as this particular case is concerned and for all other proper relief. The trial court, after hearing testimony on the motion, refused by order dated August 31, 1953, to modify its rule and refused to allow Letaw and his attorneys to proceed further in the case. From this ruling of the trial court petitioners here seek relief by writ of certiorari.
The rule adopted by the Chancery Court of Crittenden County and here questioned is as follows:
"Non-resident attorneys at law, who have been admitted to practice by the Supreme Court of this State or by the court of last resort in the state of their residence, will be permitted by courtesy to appear in all causes in the Crittenden Chancery Court representing any party thereto, but the pleadings in all such causes filed by a non-resident attorney shall be signed also by a duly licensed resident attorney of this county upon whim service of notices may be had and who shall be responsible to the court for the conduct of the interest represented by the non-resident attorney in such cause. The Clerk of this court is charged with the enforcement of this rule."
"This order to be effective Oct. 16, 1933."
In rendering its decision the trial court stated "that the making of said rule was a valid exercise of the court's power, and that said rule is reasonable, proper, and valid."
Before we consider the issue here raised it becomes necessary to set out certain material and undisputed facts and to call attention to an agreement reached by the attorneys for both parties during the oral argument in this court.
It is undisputed that Roberts is an attorney residing in Memphis, Tennessee; he is a member of the bar of Tennessee, admitted to practice in all the courts of that state, and has paid his fee of $1 to and been enrolled to practice by the Chancery Court of Crittenden County, and Norfieet has exactly the same status as Roberts, except that he was formerly a resident of Arkansas, he was admitted to practice in all the courts of this state in 1919, and has ever since paid his annual dues to the bar of Arkansas.
The Agreement on Oral Argument. The petitioners filed their motion in the trial court, filed this petition here, and briefed their case on the theory and assumption that the disputed rule meant one thing, and respondent briefed its cause on the theory, not too clearly defined, however, that the rule had a different meaning. Petitioners' interpretation of the rule, as applied to the facts of this case, is: Because Attorney Roberts (and Norfieet) is a resident of Tennessee he is not allowed to prosecute a suit for Letaw in Crittenden County unless he employs, as co-counsel, an attorney residing in Crittenden County. Respondent contends the rule means Roberts, an attorney of Tennessee, can proceed with his suit if he employs, as co-counsel, an attorney *5 who lives anywhere in Arkansas. During oral argument respondent's attorneys made it plain that their interpretation of the rule was as stated above and that they were insisting on no other interpretation, and petitioners agreed that the rule, so interpreted, was satisfactory to them.
The above status of the case leaves two principal matters for further consideration.
1. Since the attorneys in this case have no authority to fix, by agreement, the rules of practice in the Crittenden County Chancery Court, or to say what is or is not a reasonable rule in such matters, it remains the duty and responsibility of this court to decide the issue presented by this writ.
In our opinion the questioned rule, taken in the plain ordinary meaning of the language heretofore copied, is susceptible only of the interpretation given it by petitioners, and, as such, does not conform to our statute, is unreasonable and can not be sustained. Ark.Stats. § 25-108 reads as follows:
"Non-resident attorneys at law of record shall be allowed to practice law in all the courts of this State of equal jurisdiction of the court or courts to which they have been admitted to practice and are members of the bar in good standing in the State of their residence."
It is generally conceded that courts have the inherent right to make local rules of practice and procedure subject to certain limitations. Two of these limitations are that such local rules must not contravene a valid statute or be unreasonable. In the case of Meyer v. Brinsky, 129 Ohio St. 371, 195 N.E. 702, 703, cited by both parties here, the court, in discussing the power of trial courts to make rules, said:
"However, it is equally fundamental that such rules must not contravene either the organic law or a valid statute ; and likewise they must be reasonable in their operation."
The limitations we are speaking of are expressed in 21 C.J.S., Courts, § 170(b), p. 261, this way:
"* * *, subject to limitations based on reasonableness and conformity to constitutional and statutory provisions."
Not only does the Crittenden County Rule, requiring a local attorney in the circumstances mentioned, not conform to the reciprocity statute quoted above, but it appears to us to be unreasonable. A rule which requires an attorney residing in Memphis, Tennessee, to employ co-counsel living in Crittenden County as a prerequisite to prosecuting a suit filed in that court is manifestly unnecessary. Those seeking to sustain the rule do so on the ground that it is necessary for the Court to have, in each case, an attorney upon whom notices may be served and who would be responsible to the court. This same justification is found in the rule itself. However, as now conceded by respondent, the Chancery Court of Crittenden County could exercise the same control over an attorney of Pulaski County (or any other county) that it could over an attorney of Crittenden County. So, if the restriction imposed on nonresident attorney is unnecessary, it is to that extent unreasonable.
2. It has been urged that the petition here should be dismissed or denied because (a) there is no justiciable issue and (b) the issue is moot, but we do not agree.
(a) If at the hearing before the Chancellor it had been made clear to petitioners that they could proceed by employing any attorney in Arkansas and that such was the interpretation of the rule, then petitioners might not have instituted this proceeding, but this was not done. It appears to us that petitioners had reasonable grounds to believe they were being required to employ an attorney in Crittenden County. The plain wording of the rule conveys this impression; the letter from the clerk of the Chancery Court of Crittenden County to Roberts stated that the rule required him to associate "local Arkansas counsel"; and *6 the record fails to disclose that the respondent or the attorneys made celar to petitioners the interpretation of the rule which they now claim although ample opportunity was afforded them during the hearing. Though it might be argued that the words "local Arkansas counsel" along with other language in the letter should not be interpreted as restricting the location to Crittenden County, yet it must be remembered that the clerk has no authority to interpret the rule and in many instances it is possible that nonresident attorneys might ask for and receive a copy of the rule itself.
(b) On December 14, 1953, at an adjourned day of court after the August order denying petitioners the right to proceed in the original case and after petitioners had taken an appeal (later changed to this writ) from that order, the trial court made another order, stating and finding: "Norfieet is now a resident of St. Francis County, Arkansas, and has been since September 11, 1953, and that said Marvin Brooks Norfieet is now a regular licensed attorney at law in the State of Arkansas and is not an attorney at law, non-resident of the State within the meaning of the rule of this Court dated August 31, 1933 * * *"; and it is therefore ordered that Letaw's attorneys, Norfieet and Roberts, may now proceed with the trial of this cause.
In our opinion the December order does not render moot the issue presented to us by petitioners' writ for several reasons. First, we think the December order should be treated as an addendum to the August order and it is not the order which is challenged by this writ. Second, the December order, by its own interpretation, does not affect, modify or repeal the rule here challenged. Third, when this court allowed petitioners to change their procedure from "appeal" to "certiorari" it was, we think, an implied commitment to hear this petition on its merits. Fourth, petitioner, Roberts, being a nonresident attorney, has an interest in this matter which the December order does not dispose of. Moreover, it appears that the interest of practitioners and litigants in general would be best served to have the status of this questioned rule definitely settled.
We point out that no one connected with this litigation had anything to do with the adoption of the rule in question and certainly we do not mean to imply any criticism of those who have merely conformed to a procedure which had been followed by others for twenty years.
Writ granted.
McFADDIN, J., dissents.
MILLWEE, J., concurs.
McFADDIN, Justice (dissenting).
The majority has decided a case that is moot. Such procedure is contrary to our established precedents in which we have refused in all instancesexcept election controversies[1]to decide a case that does not present a justiciable issue.
In Quellmalz Lumber & Mfg. Co. v. Day, 132 Ark. 469, 201 S.W. 125, 127, we said:
"It is not the policy of our law with respect to litigated cases to decide questions which have ceased to be an issue by reason of facts having intervened rendering their decision of no practical application to the controversy between the litigants. Pearson v. Quinn, 113 Ark. 24, 166 S.W. 746; Tabor v. Hipp, 136 Ga. 123, 70 S.E. 886, Ann.Cas. 1912C 246."
In Kays v. Boyd, 145 Ark. 303, 224 S.W. 617, we said:
"It is the duty of this court to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon abstract *7 propositions or to declare principles of law which cannot affect the matter in issue in the case at bar."
In Kirk v. North Little Rock Special School Dist, 174 Ark. 943, 298 S.W. 212, 213, we said:
"It has never been the policy of this court with respect to litigated cases to decide cases which, by reason of intervening facts, seemed to be of no practical application to the controversy between the parties. It is the duty of the courts to decide actual controversies by a judgment or decree which can be carried into effect, but not to give opinions upon controversies or declare principles of law which cannot be executed or which cannot have any practical effect in settling the rights of the litigants under the judgment or decree rendered. Mabry v. Kettering, 92 Ark. 81, 122 S.W. 115; Kays v. Boyd, 145 Ark. 303, 224 S.W. 617; Blakely v. Newton, 157 Ark. 351, 248 S.W. 907; Mills v. Green, 159 U.S. 651, 16 S. Ct. 132, 40 L. Ed. 293; Jones v. Montague, 194 U.S. 147, 24 S. Ct. 611, 48 L. Ed. 913; Wilson v. Shaw, 204 U.S. 24, 27 S. Ct. 233, 51 L. Ed. 351; and Southern] Pac[ific] Terminal Co. v. Interstate Commerce Comm., 219 U.S. 498, 31 S. Ct. 297, 55 L. Ed. 310."
Thus it has long been the policy of this Courtand it is the policy of other Courts throughout the nationto refuse to decide questions not essential to settle the rights of the litigants. The question that the majority has decided in the case at bar that the Crittenden Court rule of 1933 is voiddoes not and cannot affect the rights of Letaw in the case at bar. Therefore, it is a moot question, and the time of this Court should not have been consumed in deciding it.
To clearly demonstrate that the question decided is moot, I review briefly the facts in this matter:
1. On August 6, 1953, Letaw filed suit against Dodd's Drug Store in the Crittenden Chancery Court, seeking to recover judgment against Dodd and to foreclose an alleged lien on personal property. That was the case of Letaw v. Dodd, in which attorneys Roberts and Norfieet represented Letaw.
2. The Clerk of the Crittenden Chancery Court notified these attorneys of the Crittenden Court rule of 1933, saying in part: "These rules require that all out-of-state attorneys associate with local counsel residing in the State of Arkansas."[2] On August 11, 1953, Letaw and his attorneys filed a motionin the case of Letaw v. Doddasking the Court to relax the said rule.
3. On August 31, 1953,in the case of Letaw v. Doddthe Court refused to relax the rule because each of the said attorneys was then a nonresident of the State of Arkansas.[2] So far as we know, the merits of the case of Letaw v. Dodd are still pending in the Crittenden Chancery Court.
4. On November 17, 1953, Letaw filed a transcript in this Courtin Case numbered 362 hereinattempting to appeal from the order of the Crittenden Chancery Court which refused to relax the rule against nonresident attorneys. Of course, there was no final order on which to base an appeal; and on February 8, 1954, this Court dismissed the appeal of Letaw "* * * for want of a final, appealable order"; and that ended the appeal to this Court of the case of Letaw v. Dodd, and left the controversy pending in the Crittenden Chancery Court, where it had always been pending.
*8 5. On December 14, 1953, the Chancery Court of Crittenden County entered another order in the case of Letaw v. Dodd, which order recited that Attorney Norfieet was then a resident of St. Francis County, Arkansas, and had been since September 11, 1953, and that since Attorney Norfieet was a resident of the State of Arkansas,[2] there was full compliance with the rule of the Court, and that Letaw could proceed with a lawsuit against Dodd. The order concluded:
"It is, therefore, by the Court, considered, ordered and decreed that the plaintiff and his attorneys, Marvin Brooks Norfieet, and A. Bell Roberts, may now proceed with the trial of this cause, to all of which Marvin Brooks Norfieet and A. Bell Roberts excepted, said exceptions being duly noted herein."
6. At the time the aforesaid order was made on December 14, 1953, the learned Chancellor delivered an opinion, which shows much study and thought. A copy of the Chancellor's opinion is attached to this dissenting opinion. From this opinion of the Chancellor, it is clear that ever since December 14, 1953, Letaw and his attorneys have been at perfect liberty to proceed with their case against Dodd: yetas above quotedthe attorneys excepted to the very order that allowed them to proceed. When the Court allowed Letaw to proceed with his case against Dodd, then the question here presented became moot.
7. But notwithstanding the order of December 14, 1953, we find that on December 29, 1953, Letaw filed the present case in this Court. It is Case No. 391, and is the one that the majority is now deciding. In this case, Letaw and his attorneys, Roberts and Norfieet, ask this Court to enjoin Chancellor Smith from enforcing the Crittenden County Court rule against them. It is worthy of note (a) that this present case was a Petition for Writ of Prohibition, seeking to prohibit Chancellor Smith from enforcing the Crittenden County Court rule against them; and (b) that the case was filed here fifteen days after Chancellor Smith had made an order that permitted Letaw and his attorneys to proceed in Letaw's case. In order to decide the controversy, this Court has treated the Petition for Prohibition as a Petition for Certiorari. We have a right to do that; but still the whole controversy is moot, and has been moot since December 14, 1953, when Letaw and his attorneys were notified by the Crittenden Chancery Court that they had a full right to proceed with the case of Letaw v. Dodd.
From the foregoing seven numbered paragraphs, I emphasize that the facts demonstrate that the present case does not present a justiciable controversy affecting Letaw's rights: rather they show that Letaw and his attorneys have undertaken to reform the Court rules of Crittenden County in a situation that does not now affect Letaw's rights. I am surprised that this Court has let itself be used for such a result. Why should we consider the rules of the Crittenden Chancery Court, when such consideration cannot possibly affect the right of Letaw to proceed in his case against Dodd? I cannot understand it.
Now this dissent might well stop at this place: but since the majority has seen fit to test the Crittenden County Court rule by § 25-108, Ark.Stats., I think it not amiss to give my views on that Statute. That section of the Digest is a part of Act 222 of 1911. In 1938, the People of Arkansas adopted Amendment 28 to the Constitution, which Amendment reads:
"The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law."
Since 1939 it has been the duty of this Court to make rules regulating the practice of law; and I submit that this Court should now make a rule, effective immediately, which rule should provide that any nonresident attorney must associate with him an attorney resident in Arkansas in any *9 case that may be filed in any Court of this State. As pointed out in the opinion of the Chancellor of December 14, 1953, other States and other jurisdictions have such a rule; and we should have one, which would be just like the Crittenden County rule, as interpreted by its Chancellor.
Because the majority has decided a case that is moot, I respectfully dissent.
Appendix
Opinion of Chancellor Smith,
Delivered December 14, 1953,
In the Case of Letaw v. Dodd.
Gentlemen, in order that there not be any confusion or misunderstanding or any reason for any misstatements, I am going to undertake to make my position clear in regard to this matter. On August 6, 1953, the plaintiff filed in this court his petition against the defendant in which he alleged that the defendant was indebted to him in certain sums. The plaintiff prayed judgment for the amount of that indebtedness and asked that that judgment be declared a lien upon certain personal property belonging to the defendant; that if the judgment was not paid within a certain time to be fixed by the court, that the lien be ordered foreclosed and a commissioner appointed to sell the property to satisfy the judgment. Summons was duly issued and served on the defendant and on the 7th day of September, 1953, the defendant filed in this court, his answer, denying the allegations contained in the complaint. Prior to that time a motion was filed attacking the validity of a rule of court that was promulgated on August 31, 1933, recorded in the permanent records of this court and by that order or rule it was to become effective on October 16, 1933. That rule of court in effect provided that a nonresident attorney who was licensed to practice law in the State of Arkansas or in the State of his residence, that is, by the highest court in the state of his residence, would be permitted to practice in this court provided that all pleadings be signed by a resident attorney upon whom process might be had and who might be responsible to the court for the conduct of the litigation. It is significant to note that that rule was not questioned for twenty years. Many, many, many attorneys from other states have complied with the rule and practiced in this court. Many of them during my three years tenure on the bench. I assume, and must assume that there was reason for the promulgation of that rule. Rules of similar nature are enforced in many other courts. A rule almost identical in language is in effect in the Federal Courts of the State of Arkansas and rules in many other states are similar. There is a rule, according to the record in this case, in the Probate Court of Shelby County, Tennessee, to the effect that no one except a licensed attorney in Tennessee and a resident of Shelby County shall be permitted to practice in that court. That is a record before this court in this case. When a rule, promulgated by a court, is duly recorded in the permanent records of that court, it becomes just as effective as if it were a law passed by the Legislature of the State and should be given the same effect in the same manner as a rule or law passed by the Legislature. On August 31, 1953, a hearing was had on that motion and testimony was taken in open court. The testimony consisted of the evidence of the two attorneys representing the plaintiff and certain documentary evidence. There was no testimony, at least competent testimony, to the effect that the enforcement of this rule would deprive the plaintiff of an opportunity to try his lawsuit upon compliance with the rule. The parties simply introduced their license, one of them exhibiting his license granted by the Arkansas Supreme Court in 1919 and his license to practice in the courts of Tennessee, the other his license in the State of Tennessee, each stating under oath that he was, at that time, a resident of Tennessee. There was no testimony to the effect that plaintiff could not comply with the rule. They simply relied upon the Statute of 1911, the laws of the State of Arkansas which provided and which does provide *10 that an attorney who has been licensed to practice before the highest court in his state shall be permitted to practice law in the courts of this state. The license issued to every member of the Bar of Arkansas, over eleven hundred in number, contains the same provision, that the holder of that license is permitted to practice in the Supreme Court of this State and all inferior courts of the State. It is the opinion of the court that does not give the holder of that license the privilege to ignore the rules promulgated by courts in the exercise of their inherent power, so a statute conferring upon nonresident attorneys the right to practice in this state could certainly confer upon them no greater right than the licensed attorneys of this state. The laws of the State of Arkansas provide that before attorneys can be licensed in the first place in the State of Arkansas, that he must be a resident of this state and must have resided in this state for a specified length of time. We have no cases in this court, but the great weight of the decisions of other states is to the effect that where residence is a prerequisite to practice in the first place, that upon the removal of a person, it acts not as a revocation of his license, but as a suspension.
Upon the testimony before the court on August 31st, the court was unwilling to declare as a matter of law, that the rule was invalid. There is not now, and there never has been for one single minute since that time, any effort, any intention, any desire upon the part of the court to alter the ruling of August 31, 1953. There has never been any indication, any intention or desire to have any re-hearing in connection with the order made on August 31, 1953. It has come to the attention of the court and admitted in open court this morning that since the 11th of September, 1953, or about the 11th of September, 1953, one of the attorneys, the attorney who was licensed to practice law in Arkansas, has returned or removed to his former home in St. Francis County, Arkansas, and is now a bona fide resident of the State of Arkansas. The court takes the position without, as I say, undertaking to alter, revise or amend the order of August 31, 1953, to any extent, good or bad, whether valid or invalid, no longer applies to that attorney and that he has a perfect right to proceed in the trial of his client's cause in this court.
It is immaterial, a matter of no consequence, whether Mr. Roberts intended to take the lead in the case, or whether Mr. Norfieet intends to take the lead in the case. Insofar as Mr. Norfieet is concerned, he is not a nonresident of the State of Arkansas, and therefore the rule has no application to him whatsoever. There is an attorney of record in this case upon whom process of service can be had and who can be responsible for the conduct of the lawsuit, who could be punished, if need be, and I am satisfied there won't, by process of this court.
I am not unmindful of the fact that there has been an attempted appeal from the order of August 31, 1953. I did not think then and I do not think now that the order of August 31, 1953, was an appealable order and, therefore, I am of the opinion that the jurisdiction of that case is still in this court. There has been a complaint filed and an answer filed. There has been no proof taken by either side on the merits of that case; they are simply, insofar as the parties are concerned, a complaint alleging certain facts to be true, and an answer denying those facts to be true. It is, therefore, incumbent upon the plaintiff, who has the burden of proving his case, to act.
I am not unmindful of the rule of court and the decision of the Supreme Court to the effect that when there is an appeal to the Supreme Court from a former order or judgment, that the lower court loses all jurisdiction. The jurisdiction is there and not here because the case is transferred; and by a very early case of Gates v. Solomon, 73 Ark. 8, 83 S.W. 348. That was a case where the Circuit Court had either sustained or overruled a demurrer to the complaint. The court sustained the demurrer to the complaint and no further action was taken except the Circuit Court *11 rendered judgment against the plaintiff for the costs of the case and our Supreme Court said that the Circuit Court was in error in rendering costs against the plaintiff for the action while it was still pending, there being no dismissal and there was no dismissal in this case and that thought unquestionably ran through the minds of the attorneys when the court announced the ruling, that he assumed that the complaint was being dismissed and he was told by the court then there was no reason to dismiss the complaint, that the attorneys could proceed with the trial of their cause as soon as the rule was complied with and it was not a final judgment and no appeal lies from it. The appeal was prematurely taken, the cast is still pending in the Chancery Court. In the case of McCarroll, Commissioner of Revenue v. Gregory-Robinson-Speas, Inc., 197 Ark. 1175, 125 S.W.2d 452, 453, the appellant admitted in the Supreme Court that the only order rendered by the trial court was an order overruling his demurrer to the complaint and granting an appeal from such order to the Supreme Court. Certainly it cannot be denied that the order made in the instant case was the one holding that the rule of the court was valid. The Supreme Court continued by saying:
"The order overruling his demurrer to the complaint and granting an appeal from such order to this court. The order overruling the demurrer to the complaint was an interlocutory order and not being a final judgment was not appealable to this court. The appeal was, therefore, prematurely taken. The case is still pending in the chancery court notwithstanding the attempted appeal from the order overruling the demurrer to the complaint."
Citing the case of Gates v. Solomon in 73 Ark. 8, 83 S.W. 348, which I just mentioned, goes further in saying that: "This court decided in the case of Davis v. Biddle, 117 Ark. 393, 174 S.W. 1196, that no appeal lies where there is no final judgment, and an order sustaining a demurrer being only an interlocutory judgment, an appeal therefrom would be dismissed for want of jurisdiction and also decided in State v. Greenville Stone & Gravel Co., 122 Ark. 151, 182 S.W. 555, that orders overruling demurrers were not appealable, since they were not final orders and that the mere fact that a constitutional question was involved was not sufficient to make the order final."
In a more recent case of Piercy v. Baldwin, 205 Ark. 413, 168 S.W.2d 1110, 1111, the plaintiff in that case brought suit in ejectment against Luther Baldwin and Lois Baldwin, his wife, as well as against other defendants. In apt time, Lois Baldwin, on behalf of herself and the other defendants, filed a motion to stay the proceedings. In short, her motion was based upon the fact that her husband, Luther Baldwin, was a member of the armed forces of the United States and, therefore, was entitled to the benefit of the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.A. Appendix, § 501 et seq. Her prayer was that the proceedings in the cause be stayed during the period of military service of her husband and for three months thereafter. A response was filed to that motion and upon a hearing the court sustained the motion to stay the proceedings as to the defendants, Lois Baldwin and Luther Baldwin, whereupon, the plaintiff then moved the court to permit him to proceed with the trial as to the other defendants. That motion was denied by the court and the plaintiff prayed and was granted an appeal to the Supreme Court. In the Supreme Court, the plaintiff contended first that the trial court abused its discretion in granting the defendant's motion for a stay of proceedings and, second, that in any event, there was an abuse of discretion, an error in denying the plaintiff's motion to permit him to proceed against the other defendants. In passing on those motions, our Supreme Court said:
"We cannot decide these questions for the reason that the appeal has been prematurely brought and we are without jurisdiction. The order from which this appeal comes is in no sense *12 a final order, from which an appeal may be prosecuted. In effect, the order continues the cause during the military service of appellee, Luther Baldwin, and for three months thereafter. The cause has not been tried on its merits but is still pending. In Harlow v. Mason, 117 Ark. 360, 174 S.W. 1163, 1164, this court quoting from an earlier case, said: `"A judgment to be final, must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subjectmatter in controversy".'"
Therefore, this court is of the opinion that the cause has not been removed to the Supreme Court, notwithstanding the fact that there has been lodged there a transcript of the pleadings and the testimony that was taken here in August. The order, upon its face, shows that it did not conclude the rights of the parties, that they were not dismissed from the action; that they were not precluded from proceeding in this cause. I am of the opinion that if the Supreme Court considers the matter now pending before it at all, that it will consider it as an original petition for a writ of mandamus. If that is true, there will be an original action in the Supreme Court and this action is still pending in this court.
As I say, without any regard to the validity of the rule, without any regard to the correctness of the August 31, 1953 order, that under the facts as they now exist, and without any modification of the previous order or any attempt to do so, the court simply makes an order at this time finding that one of the attorneys for the petitioner is a bona fide resident of the State of Arkansas, with license to practice in the Supreme Court of this State and all inferior courts, that the rule, valid or invalid, promulgated in 1933, no longer applies to that attorney.
The order is that the plaintiff be and he is hereby granted permission at this time to proceed with the trial of his cause with his present solicitors, Mr. Roberts and Mr. Norfleet.
NOTES
[1] For election controversies, see Cain v. Carllee, 171 Ark. 155, 283 S.W. 365; and Brown v. Anderson, 210 Ark. 970, 198 S.W.2d 188.
[2] The majority opinion says: "Respondent briefed its cause on the theory, not too clearly defined, however, that the rule had a different meaning". But it is evident that the Clerk of the Court, and the Court itself, all the time declared the rule as meaning State, instead of County There was never a timein the record in this casewhen the rule was understood as meaning only attorneys resident of Crittenden Covnty. It was all the time understood as meaning attorneys resident of the State of Arkansas.
[2] See Note 2 on page 7. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440254/ | 242 F. Supp. 2d 261 (2003)
Jerry COOPER, Plaintiff,
v.
JOHN D. BRUSH & CO., d/b/a Sentry Group, Defendant.
No. 01-CV-6354L.
United States District Court, W.D. New York.
January 15, 2003.
*262 Samuel F. Prato, Rochester, NY, for Plaintiff.
Edward A. Trevvett, Harris Beach LLP, Pittsford, NY, for Defendant.
*263 DECISION AND ORDER
LARIMER, District Judge.
PROCEDURAL HISTORY
Plaintiff Jerry Cooper ("plaintiff") instituted this action against his former employer, defendant John D. Brush & Co., d/b/a Sentry Group ("Sentry"), alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff, an African-American, alleges constructive discharge and a hostile work environment based on his supervisor's disparate treatment and harassment. Plaintiff claims that the harassment went unremedied by Sentry after he reported it and, as a result, he was forced to resign his position as an assembly line employee. Before the Court are Sentry's motion for summary judgment, brought pursuant to Fed. R. Civ. R. 56, and plaintiffs cross-motion, brought pursuant to Fed.R.Civ.P. 56(f), for additional discovery. For the reasons that follow, Sentry's motion is granted and plaintiffs motion is denied.
FACTUAL BACKGROUND
Plaintiff worked at Sentry from 1989 until his September 25, 2000 resignation. From 1996 through December of 1999 plaintiffs supervisor was Rick Comstock. Dkt. # 12, ¶¶ 7-9. Plaintiff alleges that Comstock discriminated against him in the Spring of 1998 when Comstock told a Sentry insurance representative that plaintiff intended to return to work on a particular date following knee surgery. Plaintiff claims that he had no intention of returning to full-time work for a few months and believes that Comstock made the false report because of plaintiffs race. Dkt. #12, Ex. 8 at 23-27. When plaintiff raised the issue with Sentry's human resources manager, plaintiff refused to meet with Comstock about the incident. It is undisputed that Comstock's actions did not cause plaintiff to be disciplined or affect his job status or conditions of his employment in any way. Id. at 27.
In December of 1999, plaintiff began working under the supervision of Paula Pecora. Pecora reported to department manager Gary Stein. Dkt. #12, If 10. Plaintiffs allegations of discrimination and hostile work environment relate to the manner in which Pecora supervised him on the production line. Plaintiff asserts that Pecora "picked on" him because of his race and strictly enforced or improperly used Sentry's Rules of Conduct and Attendance Policy against him. Dkt. # 12, Ex. 8 at 47. Plaintiff claims that Pecora discriminated against him by attempting to write him up numerous times under Sentry's Attendance Policy for things he did not do. Plaintiff also alleges that Pecora harassed him by telling other employees that she was "going to get [him]" Id. at 36. Plaintiff alleges that Pecora took these actions because he was African-American.
Plaintiff bases his allegations on the fact that he heard from a coworker that Pecora had once referred to an Hispanic employee as a "dumb Mexican." Id. at 47. This is the only racial epithet plaintiff alleges Pecora used. Plaintiff does not allege that Pecora used racial epithets in his presence or directed any racial slurs at him. Plaintiff also asserts that two other African-American employees, Corey Seabrook and Robert David, "had trouble" with Pecora. According to plaintiff, both filed complaints with the EEOC or the State Division on Human Rights about Pecora's treatment of them. Id. at 52. Sentry denies that Seabrook filed discrimination charges with either agency or that either Seabrook or David complained to Sentry that Pecora discriminated against them. Dkt. # 14, Ex. B at 35-36. Rather, the record shows that Seabrook complained to Miller that Pecora once incorrectly marked him tardy. Dkt. # 14, Ex. B at 34.
*264 In February of 2000, plaintiff complained to Sara Miller, Sentry's Human Resources Employment Manager, that Pecora had engaged in "unprofessional conduct" because she said loudly on the production line in the presence of other employees that his unauthorized absence from the line was "B.S.... send him to me, I want him, I'll write him up." Dkt. # 10, ¶ 12. The unauthorized absence was due to the fact that plaintiff had arranged with the production line's attendance person, Mr. DiMaria, to leave early one day for a court appearance and to make up the time at a later date. According to Sentry's Attendance Policy, however, DiMaria could not grant plaintiff that permission, only Pecora could. When plaintiff reported this conduct to Miller, he declined Miller's offer to speak to Pecora, and instead asked that Miller note that Pecora had acted unprofessionally. At no time during his discussions with Miller did he tell her that he believed Pecora was harassing him because of his race or that he believed Pecora engaged in discrimination. In addition, it is undisputed that plaintiff was not written up for his unauthorized absence in connection with the incident, despite the fact that Pecora could have done so in accordance with Sentry's Attendance Policy. Dkt. # 12, ¶¶ 23-26.
Plaintiff again complained to Miller about Pecora in March 2000 because she tried to write him up for another Attendance Policy violation in which he allegedly took a long lunch. Plaintiff denied the allegation and claimed that Pecora improperly wrote him up based solely on the word of a coworker, Dave Thompson. Dkt. # 12, ¶ 27. During plaintiffs meeting with Miller, plaintiff told her that he believed Pecora did not like him and was picking on him. Dkt. # 10, ¶ 20. When asked to specify how plaintiff believed Pecora was picking on him, plaintiff could not provide any substantive information or elaborate on any specific events. Dkt. # 10, ¶ 21. At no time during this meeting did plaintiff state that he believed Pecora did not like him because of his race or that he believed Pecora had engaged in discrimination.
After the second complaint to Miller, she held a meeting with plaintiff, Pecora, and Stein. Pecora denied picking on plaintiff and asked plaintiff to come to her in the future if he believed she was being unfair. Plaintiff agreed to do so and Pecora agreed to communicate better with plaintiff. Dkt. # 12, ¶ 31; see also Dkt. # 12, Ex. 8 at 55-56; Dkt. # 10, ¶ 23. Plaintiff was not written up for any Attendance Policy violation on account of this incident. Dkt. # 10, ¶ 25. Plaintiff also alleges that on two or three unspecified occasions, Pecora attempted to write him up for minor attendance infractions, including coming back late from a break. Plaintiff claims that Stein tore up Pecora's written warnings and plaintiff was not disciplined because of them. Plaintiff could not state the dates of these incidents, Dkt. # 12, ¶ 34; see also Ex. 8 at 43-45, and Sentry has no record that these incidents occurred. Id. at ¶ 35.
In early September of 2000, Sentry offered a voluntary separation package to its employees as part of a reduction in force ("RIF"), which was to become effective on September 15, 2000. Dkt. #12, ¶ 45. Any employee choosing to participate in the RIF was to complete a written election form and return it to their supervisor by September 13, 2000. Plaintiff did not take advantage of the voluntary RIF because he intended to "stick it out." However, he claims that after the September 13 deadline passed, Pecora continued to harass him and watched him more closely than other employees. Dkt. # 12, Ex. 8 at 61. As a result, he claims he did not feel like coming to work on September 21 because *265 Pecora was putting too much pressure on him. Id. at 60.
On September 22, 2000 he was written up for his absence on September 21. Dkt. # 10, ¶ 27. Plaintiff had already had Attendance Policy violations on his record. In May of 2000, plaintiff was written up for failing to show up to work or calling to explain his absence. In November 1999, plaintiff was written up for being tardy three times in a 60-day period. Dkt. # 12, Exs. 10, 15. The September 21 incident gave plaintiff a total of eight "occurrences" pursuant to the Attendance Policy. If plaintiff received nine occurrences in a rolling 12 month period, it would result in his termination. Dkt. # 12, ¶ 42; see also Ex. 17. Plaintiff was given written notice of the violation and his current "occurrence" status.
On or about September 23, plaintiff approached Miller and requested that he be able to participate in the voluntary RIF. On September 25, after Miller addressed plaintiffs request with Sentry, Miller told plaintiff that Sentry could not allow him to participate because it was too late. Plaintiff immediately tendered his resignation to Miller. It is undisputed that plaintiff did not report to Miller that he was quitting because he felt Pecora was discriminating against him. Instead, he told Miller he no longer liked working there and thought he may start his own restaurant business. Dkt. # 12, Ex. 8 at 70. It is also undisputed that he remained silent about his feelings of discrimination at his exit interview with Miller. Id. at 71. On the exit interview form (which was completed by Miller), plaintiff told her he had "no issues" with either the working conditions or corporate policies and benefits. However, plaintiff did report to her that he did not want to work for Pecora anymore, but would "rather not" discuss his reasons further. Dkt. #12, Ex. 20. Plaintiff claims that if he told Miller that Pecora was harassing him, Sentry would not have taken any steps to address the issue. Dkt. # 12, Ex. 8 at 70-71.
At all times relevant to this suit, Sentry had a written Non-Harassment and Non-Discrimination policy that specifically prohibited harassment or discrimination based on race and provided several ways in which an employee could report that he or she believed they were discriminated against. It is undisputed that plaintiff received a copy of the policy. Dkt. # 12, Exs. 2, 3. It is also undisputed that plaintiff never filed a complaint of discrimination with Sentry against Pecora or Comstock pursuant to this policy. Dkt. #10, ¶ 6; Dkt. # 12, Ex. 8 at 70-71.
DISCUSSION
1. Plaintiffs 56(f) motion for further discovery
Before addressing the merits of Sentry's motion for summary judgment, I must address plaintiffs cross-motion for further discovery. In opposition to Sentry's motion, plaintiff submitted only an affidavit pursuant to Rule 56(f)[1] requesting that the Court defer ruling on the motion so as to allow further discovery from two witnesses, Corey Seabrook and Robert David. Plaintiff did not submit a memorandum of law in support of the motion, nor did he otherwise submit any opposition to Sentry's motion.
*266 The Second Circuit "has established a four-part test for the sufficiency of an affidavit submitted pursuant to Rule 56(f). The affidavit must include the nature of the uncompleted discovery; how the facts sought are reasonably expected to create a genuine issue of material fact; what efforts the affiant has made to obtain those facts; and why those efforts were unsuccessful." Paddington Partners v. Bouchard, 34 F.3d 1132,1138 (2d Cir.1994) citing Hudson River Sloop Clearwater, Inc. v. Dep't of Navy, 891 F.2d 414, 422 (2d Cir. 1989).
If a court finds that a request for discovery is based on speculation as to what might be discovered, the court can deny the request, even if properly and timely made. Paddington Partners, 34 F.3d at 1138; Gray v. Town of Darien, 927 F.2d 69, 74 (2d Cir.1991) ("In a summary judgment context, an `opposing party's mere hope that further evidence may develop prior to trial is an insufficient basis upon which to justify the denial of [a summary judgment] motion'") quoting Contemporary Mission, Inc. v. U.S. Postal Serv., 648 F.2d 97, 107 (2d Cir.1981); Capital Imaging Assocs. v. Mohawk Valley Med. Assocs., 725 F. Supp. 669, 680 (N.D.N.Y. 1989) citing Waldron v. Cities Serv. Co., 361 F.2d 671, 673 (2d Cir.1966) (citations omitted) (while "Rule 56(f) discovery is specifically designed to enable a plaintiff to fill material evidentiary gaps in its case... it does not permit a plaintiff to engage in a `fishing expedition'"), affd 996 F.2d 537 (2d Cir.1993).
Here, plaintiffs Rule 56(f) affidavit is deficient for several reasons. First, plaintiff makes no attempt to show how the facts sought are reasonably expected to create a genuine issue of material fact. Instead, he states in conclusory fashion that obtaining the sworn statements of Corey Seabrook and Robert David is "necessary to prove [his] case, to show discrimination and an issue of material fact" Dkt. #14, ¶ 14. "Rule 56(f) is not a shield against all summary judgment motions. Litigants seeking relief under the rule must show that the material sought is germane to the defense, and that it is neither cumulative nor speculative." Sundsvallsbanken v. FondmetaL Inc., 624 F. Supp. 811, 815 (S.D.N.Y.1985). Plaintiff has not made the requisite substantive showing of materiality required at this stage.[2]
Second, plaintiff has not offered a reasonable explanation for his failure to obtain this discovery sooner. This is not a case where plaintiff has been "denied reasonable access to potentially favorable information." See Robinson v. Transworld Airlines, Inc., 947 F.2d 40, 43 (2d Cir. 1991) (plaintiff permitted to discovery before having to oppose summary judgment where corporate defendant had not provided that discovery before it filed its summary judgment motion). Here, plaintiff had sufficient time in which to conduct discovery. In fact, just prior to the courtordered discovery deadline, plaintiff requested a 60 day extension in order to conduct discovery from Sentry regarding these very facts.[3] The Magistrate granted *267 plaintiffs request, and the discovery deadline was reset to April 30, 2002. During that time plaintiff never served a notice of deposition for Seabrook or issued a subpoena to depose David. Dkt. # 17 at ¶ 9.
Plaintiff offers no explanation for his failure to use the discovery devices available under the Fed.R.Civ.P. to obtain the deposition of either witness. Instead, plaintiff claims that during the extended period for discovery, he spoke with Seabrook, who agreed to give him an affidavit and his State Division of Human Rights complaint. However, plaintiff claims that Seabrook did not return his attorney's phone calls. Despite the fact that plaintiff did not obtain the sought after discovery, he did not request more time from the Court to do so. Instead, he let the April 30 deadline pass without taking further steps to get the information. Plaintiff offers no explanation as to why he was unable to obtain the testimony of David.
After Sentry filed this motion for summary judgment, plaintiffs attorney hired a private investigator to interview Seabrook. According to the affidavit of the investigator, Seabrook told him that he had "had problems" with Pecora and filed a complaint with the State Division of Human Rights. However, Seabrook refused to give an affidavit because he was still employed at Sentry. Seabrook stated he would only testify if he was under subpoena. Dkt. # 14. Plaintiff has made no attempt to subpoena him.
While courts generally treat Rule 56(f) motions liberally, "[r]equests for discovery in the face of motions for summary judgment put forth by parties who were dilatory in pursuing discovery are disfavored." Paddington Partners, 34 F.3d at 1139. Given plaintiffs failure to use the simple discovery devices available to him, as well as his failure to explain why the information requested would raise a genuine issue of material fact sufficient to defeat summary judgment, plaintiffs motion must be denied. Therefore, the court turns to the merits of Sentry's motion. Powers v. McGuigan, 769 F.2d 72, 76 (2d Cir.1985) ("where the discovery sought would not meet the issue that the moving party contends contains no genuine issue of fact, it is not an abuse of discretion to decide the motion for summary judgment without granting discovery.").
2. Hostile Work Environment Claim
A. Timeliness
Initially, I reject Sentry's claim that only the part of plaintiffs claim based on acts occurring within 300 days of the date of plaintiffs EEOC charge is timely. The Supreme Court recently clarified the statute of limitations applicable to hostile work environment claims. In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002), the Court held:
A hostile work environment claim is comprised of a series of separate acts that collectively constitute one `unlawful employment practice.' 42 U.S.C. § 2000e-5(e)(1). The timely filing provision only requires that a Title VII plaintiff file a charge within a certain number of days after the unlawful practice happened. It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability....
*268 The statute does not separate individual acts that are part of the hostile environment claim from the whole for the purposes of timely filing and liability. And the statute does not contain a requirement that the employee file a charge prior to 180 or 300 days `after' the single unlawful practice `occurred.' Given, therefore, that the incidents comprising a hostile work environment are part of one unlawful employment practice, the employer may be liable for all acts that are part of this single claim. In order for the charge to be timely, the employee need only file a charge within 180 or 300 days of any act that is part of the hostile work environment.
Morgan, 122 S.Ct. at 2074-75.
Here, the last act occurred on September 25, 2000, when plaintiff alleges that he was constructively discharged. It is undisputed that plaintiff filed an EEOC charge on February 22, 2001, well within the statute of limitations period. Dkt. # 12, Ex. 22. Accordingly, all of the allegations plaintiff raises in support of his hostile work environment claim will be considered by the Court in determining Sentry's motion. Morgan, 122 S.Ct. at 2074-75.
B. Summary Judgment in Discrimination Cases
When deciding a motion for summary judgment brought pursuant to Fed. R.Civ.P. 56, a court's responsibility is to determine whether there are issues to be tried. Duse v. Int'l Bus. Machs. Corp., 252 F.3d 151, 158 (2d Cir.2001); see also Larsen v. NMU Pension Trust, 902 F.2d 1069, 1073 (2d Cir.1990). Summary judgment will be granted if the record demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Larsen, 902 F.2d at 1073. "A fact is `material' for these purposes if it `might affect the outcome of the suit under the governing law.' ... An issue of fact is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir.2001), quoting Anderson, 411 U.S. at 248, 106 S. Ct. 2505; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
The general principles underlying summary judgment apply equally to discrimination actions. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.2001) ("It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases"). Although courts should be cautious about granting summary judgment in cases where motive, intent or state of mind are at issue, see Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988); Montana v. First Fed. Sav. and Loan Ass'n of Rochester, 869 F.2d 100, 103 (2d Cir.1989), "the salutary purposes of summary judgmentavoiding protracted, expensive and harassing trialsapply no less to discrimination cases than to ... other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985) (summary judgment rule would be rendered sterile if mere incantation of intent or state of mind would act as a talisman to defeat an otherwise valid motion). In determining whether summary judgment should be granted, the court resolves all ambiguities and draws all reasonable inferences in plaintiffs favor. Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir.1996).
C. Hostile Work Environment
To defeat a motion for summary judgment based on a hostile work environment, *269 plaintiff must present sufficient evidence that would permit a trier of fact to find two things: (1) the existence of a hostile work environment; and (2) a specific basis for imputing the hostile environment to the employer. Fitzgerald v. Henderson, 251 F.3d 345, 356-57 (2d Cir.2001). For the reasons set forth below, I find that plaintiff has failed to raise a genuine issue of material fact on either element.
To establish a hostile work environment, plaintiff "must produce evidence that `the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment.' " Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir.2000) quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993). It is not enough to show "[i]solated instances of harassment." Cruz, 202 F.3d at 570. "Rather, the plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were `sufficiently continuous and concerted' to have altered the conditions of [his] working environment." Id. citing Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.1997).
In examining whether a hostile work environment was created, courts look to the totality of the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23, 114 S. Ct. 367. "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII's purview." Harris, 510 U.S. at 21,114 S. Ct. 367.
With respect to racial harassment, a plaintiff "need not be the target of other instances of hostility in order for those incidents to support [his] claim. Nor must offensive remarks or behavior be directed at individuals who are members of the plaintiffs own protected class. Remarks targeting members of other minorities, for example, may contribute to the overall hostility of the working environment for a minority employee." Cruz, 202 F.3d at 570 (internal citations omitted).
Here, plaintiff bases his claim of a hostile work environment on the following facts: 1) in 1998, his then supervisor Cornstock falsely reported to Sentry that plaintiff intended to return from work following surgery on a date sooner than plaintiff intended; 2) in February 2000, Pecora told plaintiffs coworkers that she was going to "get him" for violating Sentry's Attendance Policy by not seeking her permission to leave the line for a court appearance; 3) a March 2000 dispute with Pecora regarding charging plaintiff with an Attendance Policy violation based on the statement of a coworker; 4) Pecora's "watching" plaintiff closely in September 2000; 5) two unspecified incidents in which Pecora unsuccessfully attempted to charge plaintiff with Attendance Policy violations for minor incidents; 6) a statement by a coworker that Pecora called another coworker a "dumb Mexican"; and 7) that two other African-American employees at Sentry "had trouble" with Pecora and may have filed complaints against Sentry.
Viewing the evidence in the light most favorable to plaintiff, see Cifarelli 93 F.3d at 51, I find a reasonable jury could not find in plaintiffs favor. The incidents alleged by plaintiff are insufficient in their severity or pervasiveness to constitute a racially hostile work environment. See Williams v. County of Westchester, 171 F.3d 98, 100 (2d Cir.1999). There is no *270 evidence in the record that either Comstock's or Pecora's conduct toward plaintiff was race-based. At most, plaintiff established that Pecora may not have liked him, but that is not enough. He must produce evidence that he was discriminated against because of his race, and he has failed to do so. Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 440 (2d Cir. 1999).
Further, no reasonable jury would find that the acts of his supervisors were `abusive'. That plaintiff felt he was "picked on" is insufficient to support a hostile work environment claim. Williams, 171 F.3d at 100-101 (plaintiffs subjective feeling of uncomfortableness about his work environment insufficient to create hostile work environment); see also Ricks v. Conde Nast Publ'n, Inc., 6 Fed. Appx. 74, 2001 WL 273835 (2d Cir.2001) (unpublished opinion) (affirming grant of summary judgment to employer where plaintiff failed to assert sufficient evidence of a hostile work environment by alleging, among other things, "public humiliation" by her employer's verbal berating).
Williams is instructive. In Williams, plaintiff alleged that he did not have a good feeling about his employment, that a minority coworker had a "gut, personal feeling" that he did not belong in the office and that there was "an atmosphere of uneasiness", that plaintiff found a file with racist material near his office either, and that he was consistently given menial tasks despite his 28 year tenure with the employer. The Second Circuit affirmed the District Court's grant of summary judgment, after trial, for the employer on the grounds that these allegations were insufficient as a matter of law to constitute a racially hostile work environment. Williams, 171 F.3d at 101. The Court took note that Williams had not alleged that a single racial epithet was directed at him or that racially derogatory comments were used in the workplace. Id.
Similarly here, plaintiff has failed to produce sufficient evidence that his work environment was "permeated with discriminatory intimidation, ridicule, and insult." Harris, 510 U.S. at 21, 114 S. Ct. 367. The plaintiff must show "more than a few isolated incidents of racial enmity." Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir.1986). "[T]here must be a steady barrage of opprobrious racial comments." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997) quoting Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir.1994).
It is undisputed that the only racial epithet of which plaintiff is aware is an alleged comment reported to him by another co-worker who himself claims he heard Pecora call a third employee a "stupid Mexican." While hearsay racist comments not directed at plaintiff or even his particular race may be probative of a hostile work environment, such evidence must be produced by plaintiff in admissible form. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 71 (2d Cir.2000) ("while second-hand comments may be relevant, a district court deciding a summary judgment motion must be provided with admissible evidence demonstrating the truth of the non-movant's assertions."); Howley v. Town of Stratford, 217 F.3d 141, 154-55 (2d Cir.2000). Here, plaintiff has not provided an affidavit from the co-worker who allegedly heard this statement.
In any event, even assuming plaintiff submitted that proof in admissible form, he would still fall woefully short of the required evidence needed to establish a hostile work environment. This is not a case in which repeated explicitly racist comments, jokes, and epithets were used. See, e.g. Schwapp, 118 F.3d at 106 (10 to 12 instances of explicitly racist conduct precluded summary judgment in hostile *271 work environment case). Instead, plaintiff bases his claim on his own subjective feelings about Pecora's conduct toward him, which is not enough. To sustain a claim, the conduct in question must objectively and subjectively create a hostile work environment. See Harris, 510 U.S. at 21-22, 114 S. Ct. 367; Schwapp, 118 F.3d at 110.
Even if plaintiff could raise an issue of fact regarding the existence of a hostile work environment, Sentry would still be entitled to summary judgment because plaintiff cannot show a specific basis for imputing the hostile work environment claim to Sentry. When the alleged harasser is a supervisor, the employer is presumed to be absolutely liable for the harassment. Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998). However, where, as here, the employer takes no "tangible employment action" against the employee, its liability is subject to what has become known as the Burlington/Faragher affirmative defense.[4]
To invoke the defense, Sentry must show that it (a) "exercised reasonable care to prevent and correct promptly any ... harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 807, 118 S. Ct. 2275; see also Burlington Indus. Inc. v. Ellerth 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998).
Here, Sentry has shown its entitlement to this defense. There is no dispute that Sentry had a written Non-Harassment and Non-Discrimination policy that specifically prohibited harassment or discrimination based on race. The policy specified several ways in which an employee could report that he or she believed they were discriminated against, including a confidential report to the Director of Human Resources, the Employment Supervisor, or the Benefits and Compensation Manager. According to the policy, Sentry would "promptly and effectively" investigate "in a confidential manner" any complaints of harassing conduct. Dkt. # 12, Ex. 2. The policy also stated that "any form of retaliation against employees for exercising their rights under this policy is strictly prohibited and will be treated as a violation of this policy to the same extent as discrimination or harassment." Id. It is undisputed that plaintiff received a copy of the policy. Dkt. # 12, Ex. 3. Based on these facts, Sentry has satisfied the first element of the defense. See Leopold v. Baccarat, Inc., 239 F.3d 243, 245 (2d Cir. 2001) (employer met burden on first element by demonstrating the existence of an harassment policy and a complaint procedure); Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 295 (2d Cir.1999) (same).
Additionally, Sentry met its burden of showing that plaintiffs actions in failing to avail himself of the complaint procedure were unreasonable. It is undisputed that plaintiff never filed a complaint of discrimination with Sentry against Pecora or Comstock pursuant to this policy. Dkt. #10, ¶ 6; Dkt. # 12, Ex. 8 at 70-71. At no time during any of the three or four discussions with Miller did plaintiff claim that he felt Pecora was discriminating against him on account of his race.
Plaintiff claims that he did not report that Pecora was harassing him because he *272 believed Sentry would not have addressed the issue. Dkt. #12, Ex. 8 at 70-71. However, this contention is belied by the record, which shows that Miller promptly investigated plaintiffs concerns that Pecora was "picking on" him and charging him with unfounded Attendance Policy violations by meeting with plaintiff, Pecora, and Pecora's manager. In addition, not one of the Attendance Policy violations that plaintiff claimed were improper was charged to him. As such, plaintiffs experience with complaints to Miller resulted in quick action and findings in his favor. Therefore, plaintiffs concerns that his complaints would not be addressed are insufficient to preclude summary judgment in favor of Sentry. Faragher, 524 U.S. at 807-08, 118 S. Ct. 2275 ("[W]hile proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense."); see also Leopold, 239 F.3d at 246 (finding employer entitled to defense where plaintiff failed to report harassment out of fear of reprisal or inaction by employer because "[a] credible fear must be based on more than the employee's subjective belief. Evidence must be produced to the effect that the employer has ignored or resisted similar complaints or has taken adverse actions against employees in response to such complaints."); Caridad, 191 F.3d at 295 (same). Accordingly, Sentry is entitled to summary judgment pursuant to the Burlington/Faragher affirmative defense.
D. Constructive Discharge
Lastly, there is insufficient evidence to withstand summary judgment on the issue of plaintiffs constructive discharge. To establish a constructive discharge, plaintiff must show that his employer deliberately made his working conditions so intolerable that he was forced to resign. Whidbee, 223 F.3d at 73; Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir.1993); Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir.1983). This burden is not an easy one to carry. The Second Circuit has held that a constructive discharge cannot be established simply through evidence that the "employee was dissatisfied with the nature of his assignments," "the employee feels that the quality of his work has been unfairly criticized," or "the employee's working conditions were difficult or unpleasant." Stetson, 995 F.2d at 360. Therefore, "a claim of constructive discharge must be dismissed as a matter of law unless the evidence is sufficient to permit a rational trier of fact to infer that the employer deliberately created working conditions that were `so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.' " Id. at 361, quoting Pena, 702 F.2d at 325.
In my view, no rational trier of fact could reasonably conclude from these facts that the benign incidents about which plaintiff complains made plaintiffs working conditions "so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Pena, 702 F.2d at 325. The evidence shows only that plaintiff was unhappy with the watchful eye Pecora kept on his attendance and timeliness. Plaintiff claims he quit because he believed Pecora was putting too much "pressure" on him. Dkt. # 12, Ex. 8 at 70-71. That kind of employee concern does the not meet the stringent standard for demonstrating constructive discharge. See Gray v. York Newspapers, Inc., 957 F.2d 1070 (3d Cir. *273 1992) (employee's subjective interpretation that continued employment would be uncomfortable and demeaning and would lead to demotion or termination in the future does not constitute constructive discharge).
It is not enough that a reasonable person would have "preferred not to continue working for that employer." Spence v. Maryland Cas. Co., 995 F.2d 1147, 1156 (2d Cir.1993). Plaintiff must show that his job had become "intolerable" to the point that he was "forced into an involuntary resignation." Pena, 702 F.2d at 325; Stetson, 995 F.2d at 360 quoting Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1162 (3d Cir.1993) (even "hypercritical supervision" and "unfair and unwarranted treatment [are] by no means the same as constructive discharge."). Here, a reasonable jury could not find that Pecora's actions were abusive. In fact, plaintiff received an above average performance review from Pecora in July 2000 and, as a result, was given a raise. Dkt. # 12, Ex. 16. At the time of his resignation, plaintiff may have felt that he was treated harshly and unfairly, but he "could not reasonably have felt at that time that he had no alternative but to resign." Stetson, 995 F.2d at 361.
Further, plaintiff did not tell Sentry that the reason for his leaving was his perceived racial discrimination by Pecora. Rather, he stated that he no longer wanted to work and that he was thinking about opening his own restaurant. Under these circumstances, plaintiff cannot establish a constructive discharge. See West v. Marion Merrell Dow, Inc., 54 F.3d 493, 498 (8th Cir.1995) ("[a]n employee who quits without giving her employer a chance to work out a problem is not constructively discharged"); Clowes, 991 F.2d at 1161 (reasonable employee will usually explore alternative avenues thoroughly before coming to the conclusion that resignation is the only option). Accordingly, Sentry is entitled to summary judgment.
CONCLUSION
For the foregoing reasons, Sentry's motion for summary judgment (Dkt.# 10) is granted, plaintiffs motion for further discovery (Dkt.# 14) is denied, and plaintiffs complaint is dismissed with prejudice.
IT IS SO ORDERED.
NOTES
[1] Fed.R.Civ.P. 56(0 provides:
(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
[2] Seemingly, plaintiff seeks to buttress his allegations of racial discrimination against Sentry with evidence that others in Sentry's employ believe they were harassed by Pecora on account of their race. However, as discussed below, see infra, Part 2.C, even if plaintiff could present evidence that Seabrook and David filed complaints of discrimination, Sentry still would be entitled to summary judgment as a matter of law.
[3] In his letter request to the Court seeking the discovery extension, plaintiff sought to discover "other claims of racial discrimination and disparate treatment made by African-Americans against supervisor Pecora and the defendant." Plaintiff also informed the court he intended to conduct the depositions of "other fact witnesses and complainants." Dkt. # 17, Ex. A. Plaintiff also referenced two coworkers who allegedly filed complaints with the state Division on Human Rights or the EEOC.
[4] Here, plaintiff alleges constructive discharge. Because constructive discharge is not considered a tangible employment action in this context, see Fitzgerald v. Henderson, 251 F.3d 345, 357 (2d Cir.2001); Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 294 (2d Cir.1999), Sentry may assert the Burlington/Faragher defense. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2470765/ | 744 F. Supp. 2d 311 (2010)
Marla BAKER, Plaintiff,
v.
Kathryn GURFEIN et al., Defendants.
Civil Action No. 09-1480 (RBW).
United States District Court, District of Columbia.
October 13, 2010.
*313 Steven D. Kupferberg, Rockville, MD, Jeffrey A. Sarrow, Jeffrey A. Sarrow, P.A., Plantation, FL, for Plaintiff.
Jennifer L. Sarvadi, Joseph S. Abrenio, LeClair Ryan, A. Professional Corporation, Alexandria, VA, David C. Tobin, Tobin, O'Connor, Ewing & Richard, Washington, DC, for Defendants.
MEMORANDUM OPINION
REGGIE B. WALTON, District Judge.
Marla Baker, the plaintiff in this civil case, seeks, inter alia, compensatory and punitive damages from defendant Tobin, O'Connor and Ewing (the "Law Firm"), alleging that through one of its principals, Stephen O'Connor, it aided and abetted defendant Kathryn Gurfein in the wrongful conversion of certain family jewelry, and that it fraudulently misrepresented the location of this jewelry.[1] Complaint (the "Compl.") ¶¶ 19-33, 39-46. Currently before the Court is the Law Firm's motion to dismiss both claims brought against it under Federal Rule of Civil Procedure 12(b)(6). Defendant Tobin, O'Connor & Ewing's Motion to Dismiss at 1. After carefully considering the Law Firm's motion and accompanying memorandum of law (the "Def.'s Mem."), the plaintiff's memorandum in opposition to the Law Firm's motion to dismiss (the "Pl.'s Mem."), and all documents and exhibits attached thereto, the Court concludes for the following reasons that the motion to dismiss must be granted in part and denied in part.
I. Background
The following facts are alleged in the complaint and assumed to be true for the purposes of resolving the Law Firm's motion to dismiss. See infra pp. 314-15. Baker and defendant Gurfein are sisters. Compl. ¶ 10. Following their mother's death in 1995, their father "stated that he was gifting" to the sisters jointly "jewelry (and other personal property)" that belonged to their mother. Id. ¶¶ 10-11. Consistent with their mother's specifications, their father "not[ed] that the jewelry was to be divided equally in value between them." Id. ¶ 11. "Neither sister," however, "was prepared to divide the . . . jewelry at that time," so their father "agreed" to maintain possession of the jewelry "until such time as they could reach a mutual agreement with respect to the disposition of such property." Id. ¶ 12. On November 3, 1997, their father died before the sisters could agree on an appropriate disposition of the jewelry. Id. ¶ 14. The sisters then placed the jewelry in a "dual safe deposit box" at First Union National Bank, Wachovia's predecessor, id. ¶ 15, which the sisters agreed in writing could *314 only be accessed with the signature of both sisters, id. ¶¶ 16-17.
After years of litigation regarding the distribution of their father's estate, the sisters turned their attention to "the unresolved issue related to the disposition of the jewelry." Id. ¶¶ 18-19. In May 2008, the sisters entered into an "[e]scrow [a]greement" which contemplated that they would meet, inventory the jewelry, and then deliver them to an escrow agent, who would retain the jewelry until provided "written instructions by both [sisters]." Id. ¶¶ 19-21. The sisters agreed to meet on May 28, 2008, or, alternatively, June 18, 2008, "to make an inventory . . . of the contents [of the safe deposit box] and to deliver such contents to the escrow agent pending [their] distribution." Id. ¶ 22 (internal quotation marks omitted). Gurfein subsequently "refused to meet with [Baker] on" those dates and "the contents [of the safe deposit box] consisting of the subject jewelry[ ] were never transferred to the escrow agent." Id. ¶ 23 (internal quotation marks omitted).
O'Connor engaged in negotiations on behalf of Gurfein to determine how the "jewelry and family heirlooms could be distributed or liquidated." Id. ¶ 40. On August 22, 2008, id. ¶ 24, while the parties were "in the midst of these . . . negotiations," id. ¶ 41, Gurfein and O'Connor went to the Wachovia location where the jewelry was located, id. ¶ 24, and made "false and deceptive statements regarding [the plaintiff's] lack of interest in the jewelry and her rights of access or possession," convincing Wachovia to permit Gurfein unilateral access the jewelry, id. ¶ 25. Gurfein then took possession of the jewelry and left the bank, id. ¶ 25, thereby depriving the plaintiff of her rights in the property, id. ¶ 26, and violating the agreement by the sisters that neither could unilaterally access the jewelry, id. ¶¶ 34-38.
Following Gurfein's acquisition of the jewelry, O'Connor advised Baker's attorney on August 25, 2008, that "[t]he items ha[d] been placed in a safe deposit box at Wachovia for safe keeping." Id. ¶ 42. However, O'Connor, as well as defendants Gurfein and the Law Firm, knew that these representations were false and that "the jewelry had not been placed in another safe deposit box at Wachovia but instead" remained in the possession of Gurfein "for her own use and benefit." Id. ¶ 43 (emphasis omitted). Gurfein has retained possession of the jewelry and "refuses to restore the property to joint control, notwithstanding [a] demand [for the jewelry] having been made upon her" by Baker. Id. ¶ 27.
Baker then filed the complaint in this case on August 6, 2009, alleging that Gurfein wrongfully converted possession of the jewelry, id. ¶ 26 and that she committed fraud in doing so, id. ¶ 43. Furthermore, Baker asserts that O'Connor "aided and abetted" Gurfein's wrongful conversion of the jewelry, id. ¶ 30, that O'Connor knowingly and fraudulently represented that the jewelry remained in a safe deposit box in order "to induce [the p]laintiff's reliance. . . and to lull [the plaintiff] into a false sense of security with respect to safe keeping, security and location of the subject jewelry," id. ¶ 44, and that the Law Firm "ratified and approved" O'Connor's actions, id. ¶ 30-31. Because of O'Connor's purported actions, Baker alleges that she "relied upon the . . . fraudulent misrepresentation to her detriment and failed to take immediate action to protect her interests with respect to the jewelry, the whereabouts of which are presently unknown." Id. ¶ 46.
II. Standard of Review
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether a complaint has properly stated a *315 claim upon which relief may be granted. Woodruff v. DiMario, 197 F.R.D. 191, 193 (D.D.C.2000) (Urbina, J.). For a complaint to survive a Rule 12(b)(6) motion, Federal Rule of Civil Procedure 8(a) requires that it contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although Rule 8(a) does not require "detailed factual allegations," a plaintiff is required to provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation," Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)), in order to "`give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,'" Twombly, 550 U.S. at 555, 127 S. Ct. 1955 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). In other words, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, ___ U.S. at ____, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S. Ct. 1955). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556, 127 S. Ct. 1955). A complaint alleging facts which are "`merely consistent with a defendant's liability. . . stops short of the line between possibility and plausibility of `entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955) (internal quotation marks omitted).
In evaluating a Rule 12(b)(6) motion under this framework, "[t]he complaint must be liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged," Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir. 1979) (internal quotation marks and citations omitted), and the Court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint[,] and matters of which [the Court] may take judicial notice," E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir. 1997) (footnote omitted). Although the Court must accept the plaintiff's factual allegations as true, any conclusory allegations are not entitled to an assumption of truth, and even those allegations pled with factual support need only be accepted to the extent that "they plausibly give rise to an entitlement to relief." Iqbal, ___ U.S. at ___, 129 S.Ct. at 1950. If "the [C]ourt finds that the plaintiffs have failed to allege all the material elements of their cause of action," then the Court may dismiss the complaint without prejudice, Taylor v. FDIC, 132 F.3d 753, 761 (D.C.Cir. 1997), or with prejudice, provided that the Court "determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency," Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir.1996) (internal quotation marks and citations omitted).
Additionally, because here the plaintiff is seeking recovery for an allegedly fraudulent misrepresentation, she must meet the heightened pleading standards required under Federal Rule of Civil Procedure 9(b). Rule 9(b) requires a plaintiff to "state with particularity the circumstances constituting fraud or mistake." Rule 9(b) is not an antithesis of Rule 8(a)'s "short and plain statement" requirement, but rather a supplement to it. U.S. ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1256 (D.C.Cir.2004). To survive a motion to dismiss a fraud claim, therefore, the plaintiff must state the *316 "time, place[,] and content of the false misrepresentations, the fact misrepresented and what was retained or given up as a consequence of the fraud." Acosta Orellana v. CorpLife Intern., 711 F. Supp. 2d 81, 96 (D.D.C.2010) (Walton, J.) (quotation marks deleted); see also Stevens v. In-Phonic, Inc., 662 F. Supp. 2d 105, 114 (D.D.C.2009) (Walton, J.) ("The complaint must . . . provide a defendant with notice of the who, what, when, where, and how with respect to the circumstances of the fraud in order to meet this enhanced pleading standard." (internal quotation marks omitted)).
III. Legal Analysis
The Law Firm presents several arguments in support of its motion to dismiss. First, the Law Firm asserts that Baker has failed to plead a valid conversion claim because she "does not allege that [the Law Firm] ever possessed the jewels that she seeks to recover," and that in any event, the Law Firm "has no liability to third parties for advice it provides [to] its own client." Defs.' Mem. at 1. As for the fraudulent misrepresentation claim, the Law Firm asserts that this claim fails because Baker has not demonstrated that the purported misrepresentation was material, or that there was "any reasonable reliance or damages resulting therefrom." Id. at 2. In considering the arguments raised by the defendants, the Court is mindful of the fact that this matter falls under its "diversity jurisdiction," 28 U.S.C. § 1332 (2006), and thus under the doctrine established in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), the Court must "look to [District of Columbia] law for rules of decision with respect to substantive matters," Davis v. Grant Park Nursing Home, L.P., 639 F. Supp. 2d 60, 64 (D.D.C.2009) (Friedman, J.); see also Williams v. U.S. Elevator Corp., 920 F.2d 1019, 1022 (D.C.Cir. 1990) ("Although the Rules of Decision Act. . . do not strictly apply with respect to [District of Columbia] law, we apply [the District's] substantive law analogously for reasons of uniformity and respect for the [District of Colmbia] Court of Appeals" (internal quotation marks and citation omitted)). Furthermore, where "there is no District law on point, [the Court] should look to Maryland law first . . . . because. . . the District of Columbia derives its common law from that state and because District of Columbia courts have in the past looked to Maryland law for guidance." Conesco Industries, Ltd. v. Conforti and Eisele, Inc., D.C., 627 F.2d 312, 315 (D.C.Cir.1980). With these principles as its guidepost, the Court will address each of the Law Firm's arguments below.[2]
A. The Plaintiff's Conversion Claim
In its efforts to undermine Baker's conversion claim, the Law Firm misconstrues the theory of liability that she relies upon in her complaint. To be sure, Baker failed to allege that the Law Firm exercised dominion and control over the jewelry, and that such an omission surely would be fatal under a theory that the Law Firm is directly liable for the conversion of the property at issue. But Baker is not seeking to hold the Law Firm liable directly; rather, she is seeking to hold the Law Firm vicariously liable for the actions of Gurfein under an aiding and abetting theory.[3]*317 Pl.'s Mem. at 2. And under this theory, the plaintiff need not establish that all of the elements of conversion have been met with regards to the Law Firm; rather, the plaintiff must show, inter alia, that a party (in this case, Gurfein) committed the underlying tort, and that the defendant aided that party in committing the tort. Acosta Orellana, 711 F.Supp.2d at 108 (noting that a party pursuing recovery under an aiding and abetting theory must establish, inter alia, that there has been "a wrongful act causing an injury by a party aided by the defendant"). Thus, the Law Firm's efforts to have the conversion claim dismissed on the grounds asserted must be rejected.[4]
*318 Similarly, the Law Firm's argument that "a lawyer is not liable to a third party for advising his own client to breach a contract or to advance the client's own interests," Def.'s Mem. at 4, is nothing more than a non sequitur. The case before the Court does not involve a situation involving an attorney advising a client to breach a contract; rather, the plaintiff is alleging that the Law Firm, through one of its principals, O'Connor, was an active participant in the commission of an intentional tort by "communicat[ing] to Wachovia a number of false and deceptive statements regarding B[aker]'s lack of interest in the jewelry" with the objective of permitting Gurfein "to gain unilateral access to the container or safe deposit box," Compl. ¶ 25, and therefore accord Gurfein the ability to "wrongful[ly] exercise . . . dominion and control over the . . . jewelry," id. ¶ 26. Because O'Connor, as alleged in the complaint, took action with the intent of depriving Baker of her proprietary interest in the jewelry, the Law Firm can be held liable regardless of whether it was acting on behalf of its client. See Goldschmidt v. Paley Rothman Goldstein Rosenberg & Cooper, 935 A.2d 362, 381 (D.C.2007) (quoting Fraidin v. Weitzman, 93 Md.App. 168, 611 A.2d 1046 (Md.Ct.Spec.App.1992)) (observing that "an attorney may be liable if he `possess[es] a desire to harm which is independent of the desire to protect his client'"); Fraidin, 611 A.2d at 1079-80 (noting that an attorney "may not commit. . . a malicious or tortious act" and can be held liable by a third party where "the attorney did not act within the role of an advisor and merely advise, but instead knew of the client's wrongful conduct and was actively involved in the wrongful conduct" (emphasis added)). The Law Firm's efforts to have this Court dismiss Baker's conversion claims must, therefore, be rejected.
B. The Plaintiff's Fraudulent Misrepresentation Claim
The sufficiency of the allegations regarding the plaintiff's fraud claim, however, is a different matter. The misrepresentation at issue here allegedly "took place [o]n August 25, 2008, several days after the [alleged] conversion" of the jewelry, whereby the Law Firm purportedly advised the plaintiff's counsel that "[t]he items have been placed in a safe deposit box at Wachovia for safe keeping." Compl. ¶ 42. For this statement to rise to the level of an actionable fraudulent misrepresentation, the plaintiff must plead with particularity facts that would satisfy the following five elements: "(1) a false representation (2) made in reference to a material fact, (3) with knowledge of its falsity, (4) with the intent to deceive, and (5) an action that is taken in reliance upon the representation." In re Estate of McKenney, 953 A.2d 336, 341 (D.C.2008), cited in Acosta Orellana, 711 F.Supp.2d at 96-97. Even assuming that the representation was false, that O'Connor and the Law Firm had knowledge of its falsity, and that the statement was made with the intent to deceive, the Court concludes that Baker has failed to allege facts sufficeint to establish that the misrepresentation was material, or that the plaintiff's reliance on the statement was reasonable.
With regards to the materiality of the statement, the fatal flaw in Baker's allegations is that she has failed to establish "what was retained or given up as a consequence of the fraud." Martin-Baker, 389 F.3d at 1256. At most, the purported misrepresentation by the Law Firm "lull[ed Baker] into a false sense of security," Compl. ¶ 44, and as a consequence, she "failed to take immediate action to protect her interests with respect to the jewelry," id. ¶ 46. But as Baker admits, the purported misrepresentation was made "several *319 days after the conversion of the" jewelry, id. ¶ 42, and thus, Baker did not lose her proprietary interest in the jewelry "as a consequence" of the misrepresentation. Indeed, rather than misrepresenting to Baker the location of the jewelry, had the Law Firm simply come clean and admitted that Gurfein took sole possession of the jewelry, Baker still would not have had access to the jewelry. Thus, even assuming that O'Connor's representation was false, that misrepresentation has no bearing on the loss purportedly suffered by Baker.
Moreover, even assuming that the misrepresentation had some material effect on Baker's ability to protect her interest in the jewelry, her reliance on the Law Firm's misrepresentation was unreasonable as a matter of law. As the District of Columbia Court of Appeals has recognized, "[i]t may be unreasonable to rely on a misrepresentation . . . if there was an adequate opportunity to conduct an independent investigation and the party making the representation did not have exclusive access to such information." In re Estate of McKenney, 953 A.2d at 343 (internal quotation marks omitted). Reliance, however, is justified if "a defendant. . . prevents a plaintiff from making a reasonable inquiry." Id. (quoting FS Photo, Inc. v. PictureVision, Inc., 61 F. Supp. 2d 473, 483 (E.D.Va.1999)). In this vein, Howard v. Riggs Nat'l Bank, 432 A.2d 701 (D.C.1981), provides a useful illustration of how these principles are applied. There, the plaintiff sought a loan from Riggs Bank "to purchase and renovate a house located in northwest Washington." Id. at 703. Before a loan could be made, the bank required the plaintiff to submit "plans and specifications for the proposed renovation." Id. To quell the plaintiff's concerns about the costs associated with procuring such plans, the loan officer referred her to a contractor who could do the work at a reasonable price, and represented to the plaintiff that the work performed by the contractor was "very good [and] very beautiful." Id. at 703-04. The plaintiff then entered into a construction contract with the contractor, but after performing some demolition work, the contractor failed to complete the renovation called for under the contract. Id. at 705. The lower court granted summary judgment in favor of the bank, and the District of Columbia Court of Appeals affirmed the decision because, among other things, the plaintiff "had an adequate opportunity to conduct an independent investigation into [the contractor's] reputation and to obtain references from past customers of [the contractor]; the bank certainly did not have exclusive access to such information." Id. at 707.
Baker has an even less compelling case for reasonable reliance than the plaintiff did in Howard. Unlike the plaintiff there, Baker received information regarding the status of her property from an attorney who, on behalf of Gurfein, had earlier pursued "acrimonious and protracted litigation . . . regarding [the] disposition of the" same jewelry that is at issue in this case. Compl. ¶ 18. Furthermore, Baker certainly had reason to believe that an independent investigation was necessary when she had been informed that Gurfein "was able to access the items held by Wachovia Bank," id. ¶ 42, despite the fact that Wachovia had been instructed by the sisters that signatures from both would be required before access to the safe deposit box could be obtained, id. ¶ 17. In other words, Baker was on actual notice that her sister, who she was in an active dispute with regarding the disposition of the jewelry, and who had previously agreed that unilateral access to the jewelry was prohibited, had just sought (and actually *320 gained) access to the jewelry without Baker's required consent. Baker should have known that something was amiss, and thus her reliance on the statement made by an attorney representing her sister cannot excuse her failure "to take immediate action to protect her interests in the jewelry." Id. ¶ 46. Baker's fraudulent misrepresentation claim must, therefore, be dismissed.[5]
IV. Conclusion
In sum, the Law Firm is only entitled to partial relief on its motion to dismiss. As noted above, the Law Firm's arguments in support of the Court dismissing the conversion count fail, as Baker is seeking relief based upon a theory of vicarious, not direct, liability. The Court does agree with the Law Firm, however, that Baker has failed to allege facts sufficient to set forth an actionable fraudulent misrepresentation claim. Therefore, for the reasons set forth in this memorandum opinion, the Court denies the Law Firm's motion to dismiss Baker's conversion claim and grants the motion to dismiss her fraudulent misrepresentation claim.
SO ORDERED this 13th day of October, 2010.[6]
NOTES
[1] Baker also names Gurfein and Wachovia Bank, N.A. ("Wachovia") as defendants in this case. Specifically, she is seeking awards of compensatory and punitive damages against defendant Gurfein for wrongful conversion of the family jewelry, Compl. ¶¶ 19-33, breach of contract, id. ¶¶ 34-38, and fraud, id. ¶¶ 39-46. Additionally, she seeks partition and sale of the family jewelry. Id. ¶¶ 61-69. As for Wachovia, Baker is seeking compensatory damages for the alleged negligent release of the family jewelry to defendant Gurfein. Id. ¶¶ 47-60. Baker also sought damages from O'Connor personally, but the Court has dismissed him from the case with her consent. Minute Order, Baker v. Gurfein, Civil Action No. 09-1480(RBW), at 1 (D.D.C. Oct. 5, 2009).
[2] For the purposes of resolving this motion, the Court will assume that the Law Firm can be held vicariously liable for the actions of one of its partners, as the Law Firm does not take exception to being held liable in this manner. To that extent, the Court, for ease of reference and unless otherwise noted, will simply refer to O'Connor and the Law Firm collectively as "the Law Firm" throughout the remainder of this memorandum opinion.
[3] This Court recently observed that "the status of aiding and abetting as an actionable theory in the District of Columbia remains uncertain and, as such, it is unclear whether this Court, which has jurisdiction based on diversity, should embrace the doctrine." Acosta Orellana, 711 F.Supp.2d at 108 (citing Flax v. Schertler, 935 A.2d 1091, 1107-08 (D.C.2007)). Upon further reflection, the Court concludes that while it is correct that the status of the aiding and abetting theory of liability remains unsettled based on District of Columbia Court of Appeals' precedents as of the date of the issuance of this memorandum opinion, the Court is required by the District of Columbia Circuit's decision in Halberstam v. Welch, 705 F.2d 472 (D.C.Cir.1983), to recognize this legal concept. In Halberstam, the District of Columbia Circuit concluded that "[i]t seems likely that the District's courts would . . . find vicarious liability for support of wrongful action through knowing substantial aid or encouragement." Id. at 479. The Circuit went on to affirm the "district court's factual findings and inferences" because they "fit into existing concepts of civil liability for. . . aiding [and] abetting." Id. at 489. While the District of Columbia Court of Appeals subsequently noted in Flax that recognition of the aiding and abetting theory is still an open question, and that it was not bound by the Circuit's decision in Halberstam, the fact remains that the Circuit's analysis in Halberstam was necessary to the decision reached in that case, and thus this Court is bound by that analysis until it is overturned by an en banc panel of the Circuit, see, e.g., Gersman v. Group Health Ass'n, Inc., 975 F.2d 886, 897 (observing that a decision by a District of Columbia Circuit panel is binding on subsequent panels and this Court "unless and until overturned by the [circuit] court en banc"), or the District of Columbia Court of Appeals issues a contradictory ruling, see Jones-Hamilton Co. v. Beazer Materials & Services, Inc., 973 F.2d 688, 696 n. 4 (9th Cir.1992) (concluding that a prior panel's "interpretation of California law is binding in the absence of any subsequent indication from the California courts that our interpretation was incorrect" (internal quotation marks omitted)); Roboserve, Ltd. v. Tom's Foods, Inc., 940 F.2d 1441, 1451 (11th Cir.1991) (concluding that prior panel decision regarding interpretation of Georgia law is binding until "an intervening Georgia case has specifically contradicted" it); Derflinger v. Ford Motor Co., 866 F.2d 107, 110 (4th Cir.1989) (quoting Broussard v. Southern Pac. Transp. Co., 665 F.2d 1387, 1389 (5th Cir.1982)) ("[A] prior panel decision should be followed by other panels without regard to any alleged existing confusion in state law, absent a subsequent state court decision or statutory amendment which makes this Court's [prior] decision clearly wrong." (internal quotation marks omitted)); Stepanuk v. State Farm Mutual Automobile Ins. Co., Civil Action No. 92-6095, 1995 WL 553010, *2 (E.D.Pa. Sept. 19, 1995) (concluding that "if another panel of the . . . Third Circuit is bound by a previous panel's construction of state law[,] then district courts within the Third Circuit are also bound by that construction"). Without any opinion issued by an en banc panel of the District of Columbia Circuit or the District of Columbia Court of Appeals post-Halberstam that would give this Court pause about the precedential force of that decision, the Court must proceed in this matter as if the District of Columbia courts would allow recovery for conversion under an aiding and abetting theory of liability.
[4] The Law Firm does not challenge the sufficiency of the plaintiff's allegations of conversion under an aiding and abetting theory of liability. Thus, the Court need not address whether the plaintiff has pled facts sufficient to give rise to a plausible claim of liability for aiding and abetting Gurfein in converting the family jewelry at issue in this case.
[5] Because the Court cannot conclusively conclude that "the allegation of other facts consistent with the challenged pleading could not possibly cure the deficienc[ies]" highlighted in this memorandum opinion, Firestone, 76 F.3d at 1209 (internal quotation marks and citations omitted), the Court will dismiss the fraudulent misrepresentation claim without prejudice.
[6] A final order will be issued contemporaneously with this memorandum opinion granting in part and denying in part the Law Firm's motion to dismiss. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2439540/ | 268 S.W.2d 930 (1954)
ADAMS
v.
COMMONWEALTH ex rel. BUCKMAN, Atty. Gen.
Court of Appeals of Kentucky.
May 7, 1954.
As Modified on Denial of Rehearing June 18, 1954.
*931 Ben B. Fowler, Dailey & Fowler, Frankfort, Stephens Combs, Jr., Whitesburg, for appellant.
Harry Caudill, Whitesburg, J. Ervin Sanders, Pikeville, for appellee.
CULLEN, Commissioner.
The main question presented on this appeal is whether or not membership on a county board of education is incompatible with the office of county election commissioner. The appellant, Dr. Lundy Adams, has been a member of the Letcher County Board of Education since December 4, 1952. Following the assumption of that office, he was appointed to and discharged some of the duties of the office of county election commissioner. In an action brought in the name and by the authority of the Attorney General, the lower court declared the two offices incompatible and decreed that appellant had vacated his membership on the board of education by acceptance of the latter office.
There are two kinds of incompatibility between offices which have been recognized and applied in declaring the first office vacant upon acceptance of the latter. The first is a constitutional or statutory incompatibility, which is one so declared by the Constitution or legislative enactment. The second is a common-law or functional incompatibility, which is declared by courts without the aid of specific constitutional or statutory prohibition when the two offices are inherently inconsistent or repugnant, or when the occupancy of the two offices is detrimental to the public interest. Barkley v. Stockdell, 252 Ky. 1, 66 S.W.2d 43; Polley v. Fortenberry, 268 Ky. 369, 105 S.W.2d 143. The constitutional and statutory enumerations of incompatible offices are not the exclusive instances of incompatibility. Knuckles v. Board of Education of Bell County, 272 Ky. 431, 114 S.W.2d 511.
Without elaboration, we will mention that there is no constitutional or statutory incompatibility in the case before us, *932 under Section 165 of the Kentucky Constitution, KRS 61.080 and KRS 160.180, unless the office of member of the county board of election commissioners is in law a local office as distinguished from a state office. We consider it unnecessary to pass on this question, because we think it is clear that the two offices are functionally incompatible, in that the occupancy of both offices by the same person is detrimental to the public interest.
Ordinarily, the courts look to the legislature for declarations of public policy or of the public interest. Upon examining the legislative enactments relating to boards of education, we find running through them a clear expression of policy that such board members shall be divorced from political considerations.
KRS 160.200 provides that elections for school board members shall be in the even-numbered years, the apparent purpose being to separate these elections from the regular elections for state and county offices. KRS 160.230 prohibits any party emblem on the school board ballot. KRS 160.250 forbids disclosing to the voters the political affiliation of any candidate for school board. KRS 160.180(1) (d), in prohibiting a school board member from holding any office "under the city or county of his residence", indicates the legislative intent that school board members shall not take part as officers in local government affairs.
If a school board member should be permitted to serve as a member of the county board of election commissioners, he would be participating actively in elections as the representative of a particular political party, since he must be nominated by his party in order to serve. KRS 116.040. He would be required to pass upon the election of his fellow school board members. In serving as an election commissioner, a school board member necessarily would become involved in local government affairs, contrary to the spirit of KRS 160.180(1) (d), and would become involved in regular state and county elections, contrary to the spirit of KRS 160.200.
We think the lower court correctly held that the offices are incompatible.
A further question presented is whether the judgment was correct in holding that Dr. Adams had "accepted" the office of member of the county board of election commissioners so as to vacate his office as member of the county board of education. KRS 61.090 provides that the "acceptance" by a person in office of another, incompatible office shall operate to vacate the first office.
The stipulation of facts states that Dr. Adams was appointed by the State Board of Election Commissioners on August 14, 1953; that on August 23 he presented his appointment to the county court clerk and executed bond, but did not take the oath of office; and that between October 16 and November 2 he performed certain duties as a member of the county board of election commissioners. Dr. Adams contends that, by reason of his failure to take the oath, he never legally "accepted" the office of member of the county board of election commissioners.
As we interpret KRS 61.090, it constitutes a rule for determining a person's choice between two offices. It is our opinion that the actual entering upon the performance of the duties of an office is the best evidence of the intent to choose that office. In Taylor v. Johnson, 148 Ky. 649, 147 S.W. 375, it was held that a person holding one office, who was elected to another, incompatible office and who took the oath and executed bond for the second office, did not vacate his first office until the day on which the term of the second office began. This is in accord with our view, here expressed, that the actual entering upon the duties of the office constitutes an "acceptance" of the office for the purposes of KRS 61.090. Whether or not Dr. Adams took the proper qualifying steps to become a legal incumbent of the second office may be considered immaterial, because his choice of the second office was made manifest by his entering upon the duties of that office. The judgment properly held that he had vacated his first office.
*933 Complaint is made of that part of the judgment which stated that any act of the county board of education "which carried by reason of the participation of the defendant, Dr. Lundy Adams, since the 22nd day of August, 1953, be declared void and a nullity." We agree with the appellant that in this action, which was simply an ouster proceeding by the Attorney General, the question of the validity of acts of the board of education was not in issue and the court had no jurisdiction of such subject matter. It is our opinion that so much of the judgment as purported to pass upon the validity of acts of the board of education was a nullity.
The judgment is affirmed except as to that portion which we have indicated was a nullity.
COMBS, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2439541/ | 268 S.W.2d 646 (1954)
ST. JOSEPH HOSPITAL, LEXINGTON et al.
v.
DWERTMAN et al.
Court of Appeals of Kentucky.
January 22, 1954.
Rehearing Denied June 23, 1954.
R. P. Moloney, Donald P. Moloney, and F. Selby Hurst, Lexington, William E. Wehrman, Covington, for appellants.
Charles S. Adams, Eugene Benzinger, Covington, for appellees.
CLAY, Commissioner.
This is a declaratory judgment action seeking the proper construction of the will of Frank W. Harting. The principal question involved is the character of the estate devised and bequeathed to the testator's wife and daughter. The controversy is between those parties and three charitable institutions named in the will.
The pertinent provisions of the will, which was drafted by a layman, are as follows:
"I give, devise, bequeath, my estate, real, personal and mixed, wherever it may be found, and of whatever it may consist, jointly to my wife, Louise Harting, as long as she remains my widow, and my daughter, Mary Jane Harting."
* * * * * *
"In case of the death of either my wife or daughter the estate of every description, will go to the one alive."
* * * * * *
"I want my wife and daughter, during their lifetime to enjoy the full benefit of my estate."
"In case of the death of both my wife and daughter and there are no heirs blessed to her union" then the estate is to be divided between three charitable institutions.
Omitting details of the judgment, the basic decision of the Chancellor was that the widow and daughter had a joint life estate with survivorship, coupled with the full *647 power to dispose of the entire estate other than by will (subject to the condition that the widow's estate may be divested in the event she remarries), and unless the daughter has surviving children, upon the death of both life tenants the estate shall be divided equally among the three charitable institutions named as contingent beneficiaries. An appeal and a cross-appeal have been taken by the interested parties. The widow and daughter contend that the judgment should have declared them vested with an absolute fee simple title, while the charitable institutions insist the judgment erroneously authorized the widow and daughter to encroach upon the corpus of the estate.
On behalf of the widow and daughter, the position is taken that construing the will as a whole it is evident the testator intended to devise and bequeath to them a fee simple estate. It is contended that the first provision above quoted passes such an estate and the other parts of the will do not show a different intent. The trend of their argument is this: In the second and fourth provisions above quoted, by use of the words "in case of the death" of either or both the wife and daughter, the testator was referring to their death prior to his, and since they both outlived him, the contingent devises are no longer effective. Reference is also made to similar language used with respect to an alternate administrator. Reliance is placed on Prewitt v. Prewitt's Executors, 303 Ky. 772, 199 S.W.2d 435, and similar cases.
On the other hand, the adverse parties rely upon KRS 381.080; Harvey v. Bell, 118 Ky. 512, 81 S.W. 671; and Atkinson v. Kern, 210 Ky. 824, 276 S.W. 977. The cited statute in substance provides that unless a different purpose is plainly expressed in the instrument, every limitation in a will contingent upon a person dying "without heirs" or "without children" or "issue" or other words of like import shall be construed a limitation to take effect when such person dies.
In all three cases above cited it was recognized that the statute, insofar as it referred to real estate, must be construed to mean the death of the person mentioned at any time. In the Prewitt case a different purpose was found to be clearly intended by the words of the will.
It is argued that the fourth provision above quoted, to which the statute would be applicable, is qualified by the other references in the will to the death of the wife or daughter, and that the testator in referring to death clearly meant dying before he did. It is difficult to construe the other terms of the will as indicating any such intent. Reading it in its entirety, even without the statute to guide us, nothing even suggests the testator had in mind the possible death of either or both his wife or daughter prior to his own. His obvious intent was to provide for them as long as either should live, and the death of either prior to or after his death would in no way alter the principal objectives of the will. The Chancellor correctly decided this issue.
A more serious question is presented with respect to the right of the wife and daughter to dispose of the corpus of the estate. We agree with the Chancellor that the third provision of the will above quoted gave the wife and daughter a joint life estate with survivorship of such estate, although it is suggested on behalf of one of the charitable institutions that the estate devised and bequeathed was a defeasible fee. It is contended that the words "I want my wife and daughter, during their lifetime to enjoy the full benefit of my estate" could not be construed to authorize the beneficiaries to encroach upon the corpus.
Standing alone, this provision would perhaps do no more than create a life estate. However, when read with the first provision of the will above quoted, we find that it takes on added meaning. The former devised and bequeathed the estate outright in fee simple to these beneficiaries. The later provision may be considered as doing two things: (1) it reduces the fee to a life estate but (2) at the same time shows that the testator intended his wife and daughter to have, not the full benefit of the life estate, but the full benefit of his estate. Referring *648 back to the first provision, it is apparent that he intended to give his entire estate, rather than merely the income, to these beneficiaries for their lifetime. Such being the proper construction of the will, the Chancellor correctly recognized the right of the widow and daughter to use and dispose of the corpus for their own benefit.
However, the unlimited right of disposition except by will, which the Chancellor allowed, is contrary to a very recent decision of this Court adopting a different rule which we consider here applicable. The case is Collings v. Collings' Ex'rs, Ky., 1953, 260 S.W.2d 935. This opinion was not published until after the entry of the judgment in this action, and the failure of the judgment to conform therewith is no reflection upon the Chancellor.
In the case just cited it was recognized that the widow of the testator was vested with a life estate, coupled with a right to encroach upon the corpus. It would seem appropriate to characterize such an interest as a consuming life estate. Its true nature and the limitations upon the right of disposition appear in the following quotation from that case, 260 S.W.2d at page 937:
"Inherent in the will is the plain meaning that there was bestowed upon the widow an implied power to encroach upon the corpus of the estate during her lifetime. The testator undoubtedly intended that his widow should have a free hand in the use and management of his property and he meant, we believe, for her to have this use and management untrammelled by court proceedings or other interference. In short, we are of the opinion and we hold that it was the testator's intention that his widow should possess all right as to the use and enjoyment of the devised estate during her natural life; nevertheless, she may not willfully waste it, nor give it away, nor dispose of it by will." (Our italics.)
The judgment in this action should be modified to provide that the right of disposition is limited to the extent that the life tenants may not willfully waste the estate or give it away. The judgment as entered contains the limitation with respect to disposition by will.
The judgment is reversed on the original appeals with directions to modify it consistently with this opinion and is affirmed on the cross appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2439606/ | 268 S.W.2d 103 (1953)
KING et al.
v.
ELROD et al.
Supreme Court of Tennessee.
December 11, 1953.
On Petition to Rehear May 21, 1954.
*104 Ely & Ely, Knoxville, for appellants.
Grimm, Tapp & Carson, and Ray H. Jenkins, Knoxville, for appellees.
BURNETT, Justice.
The bill in this cause was filed asking a mandatory injunction, the removal of a lock across a roadway leading to a cemetery and for damages double the amount suffered by the complainants. The gravamen of the bill is that the defendants, appellees here, had desecrated and destroyed an ancient family cemetery in which distant relatives of the complainants had been buried. A demurrer setting forth numerous grounds was filed in due season and after argument the demurrer in all particulars was sustained and the bill dismissed. A motion for rehearing was filed which after being overruled the case was appealed to this Court and is now before us for determination.
The bill being demurred to we take the factual situation averred in the bill as true. It is alleged that this cemetery was set aside as a private cemetery prior to the Civil War and first known as the "Ferguson Cemetery"; that later one Lige Flenniken purchased the land and thereafter many Flenniken heirs were buried in this graveyard and it then became known as the "Flenniken Cemetery".
In 1944 the defendants, appellees here, purchased a farm in Knox County on which this cemetery was situated, it being on the south side of what was then the Tennessee River, now Fort Loudon Lake and situated on a knoll overlooking this lake. In 1862 ancestors of one of the complainants were buried in this cemetery *105 and some time about the Civil War an ancestor of the complainant King was buried in this cemetery. From that time on up until 1922 various people were interred in this plot of ground.
The plot of ground upon which this cemetery is situated is approximately 150 feet by 200 feet in dimensions. The bill alleges "that to carry out this scheme the defendants proceeded to landscape said knoll and surrounding grounds with the aid of dynamite, a bulldozer and other equipment, blasted a number of large and beautiful trees out of the graveyard and proceeded to level off the terrain with the bulldozer and in these operations pushed aside all of the headstones and footstones of the graves and completely obliterated the cemetery as it had existed for many many years." This averment of the bill which we take as true follows averments that the defendants, appellees here, were planning to use this knoll where this cemetery was as the location of a residence. It is further alleged in the bill that in an effort to carry out this wicked and unlawful scheme of the defendants that they "proceeded to level the graveyard off for the sole purpose of eradicating said cemetery and using the same for their own purposes." It is further said: "These complainants charge that the defendants have maliciously and unlawfully trespassed upon this plot of hallowed ground located upon their farm and proceeded to wipe its identity from the face of the earth."
After these averments the plaintiffs aver that what the defendants, appellees here, have done is a "distinct violation of the penal code of Tennessee, particularly Code, Section 10886 which section, in addition to the penalty imposed, provides that the parties so injured are entitled to recover damages in double the amount of the injuries sustained and they would show the court that these complainants on behalf of themselves and all other persons interested in said cemetery, are entitled to a judgment for said damages."
Allegations are also contained in the bill that the defendants have obstructed the right-of-way of the complainants and others to the graveyard by stretching a large log chain across the entrance and placing a padlock thereon and marking this "no trespassing" and that these activities of the defendants have prohibited complainants and others from visiting the graveyard, all of which it is said is a part of the defendants, appellees here, scheme to obliterate and forever destroy the graveyard.
The complainants then pray for a mandatory injunction requiring that the defendants remove the padlock and restore the graveyard to its former condition by replanting trees and replacing headstones and footstones, etc., then there is a prayer that the injunction be made permanent and that the complainants be awarded damages in double the amount of the injuries sustained by them.
It is not necessary for us in disposing of the matter, in our view of the matter, to take up each of the grounds of the demurrer as interposed in this case. There are only two assignments of error, the first of which considers really all of the grounds of demurrer as a whole and the second is to the overruling of the petition to rehear.
Ordinarily equity will enjoin an unauthorized encroachment upon, or use of, lands dedicated to public burial purposes. It is universally recognized that the sentiment of mankind, the right to decent burial is well guarded by the law, and relatives of a deceased are entitled to insist upon legal protection for any disturbance or violation of this right. 10 Am. Jur., 503. At common law the disturbance of a grave is an indictable offense as highly indecent and contrary to good morals. In this State it is made a misdemeanor by Statute, Code, § 10886. As a matter of academic interest the question of suits of various types for a desecration and violation of the rights of those having dead relatives buried in a graveyard, is very interestingly discussed in an annotation in 172 A.L.R. 568. In the accumulative supplement to Am. Jur., under Cemeteries, Sec. 39, will be found quite an extensive statement *106 and annotation on this subject at page 33 of the supplement.
As we view this case it largely comes down to the question of what is the obligation and necessity of a Chancery Court under the admitted facts. The usual office of an injunction is to restrain actual or threatened acts which are injurious to one's rights and not to compel the undoing of the wrong. But of course there are mandatory injunctions wherein one is compelled to undo the wrong that has been done by him, but "the rule is that a mandatory injunction such as asked for in this case will not be granted except in extreme cases, and when courts of law are unable to afford adequate redress, or when the injury complained of cannot be compensated in damages." Post v. Southern Railroad Co., 103 Tenn. 184, 216, 52 S.W. 301, 309, 55 L.R.A. 481, citing Gibson's Suits in Chancery, pages 784, 806; 1 High on Injunctions, page 3, 3 Pomeroy's Equity Jurisprudence, page 1359; Hall v. Railroad, 12 A.M. and Eng. R.R., cases 41. This statement, last quoted, is expressly approved by this Court speaking through the late Chief Justice Grafton Green in Union Planters' Bank & Trust Co. v. Memphis Hotel Co., 124 Tenn. 649, 658, 139 S.W. 715, 39 L.R.A., N.S., 580. And it is a universally well recognized rule today. As is said "such an injunction is a rather harsh remedial process and is not favored by the courts." 28 Am. Jur. Sec. 17, page 210. In granting any injunction whether prohibitory or mandatory it is "in the exercise of a sound judicial discretion", 28 Am. Jur., Sec. 20, page 213. "And in conformity with the settled equitable principles and considerations." It is also to be noted that when a court is asked to interpose a mandatory writ it is very reluctant to do so for obvious reasons. "When the court is thus asked to undo something that has been done, it must, for obvious reasons, act in a careful and conservative manner and grant the relief only in situations which so clearly call for it as it may inflict on the defendant the very irreparable injury which it is alledged he has done or is about to do against the plaintiff" Am. Jur., supra. The case in which a mandatory injunction is granted by the Chancellor should be a clear one and show that the only real remedy that the party asking the mandatory injunction has is the injunction. See Union Planters' Bank & Trust Co. v. Memphis Hotel Co., supra, 124 Tenn. 649, 139 S.W. 715, 139 L.R.A., N.S., 580. Whether or not such injunction should be granted is a question that the court must use its judgment on with reference to the special circumstances of each case, and the court's action thereunder will not be disturbed on appeal unless it clearly appears from the record that there has been an abuse of such discretion.
We have very painstakingly and carefully read and reread this bill and the briefs of both parties. It seems to us, after so doing, that the Chancellor did not abuse his discretion and was clearly right in refusing the injunction in this case. The reason that we say this is that it appears from the facts averred in the bill that the cemetery had been completely obliterated, the gravestones graded off, etc., to such an extent where the only obvious inference is that there was no longer a graveyard there. Under such a state of facts it would certainly not foist good will to require the parties to reinstate or rebuild the old graveyard on the spot where it had been before. There are many obvious reasons of why in the first place this would be entirely impractical and in the second place there would always be the ill will of those visiting the graveyard and those living around, one toward another to such an extent that under our American system there would be constant litigation, bickering and quarreling between the parties. Under such circumstances it seems to us that the Chancellor was eminently correct in denying the injunction.
This being true of course then there was no ground for equity to take jurisdiction. When equity had no jurisdiction the court of Chancery had no right to award unliquidated damages under the rights of the parties as alleged herein. See Union Planters' Bank & Trust Co. v. *107 Memphis Hotel Co., supra. This being true a statement from Gibson's Suits in Chancery, 4th Edition, pages 257, 258, Sec. 289, is particularly applicable because now the parties are left to their right in a suit for damages. Judge Gibson said:
"There are cases where pecuniary compensation by way of damages is manifestly the appropriate remedy, and a specific performance impracticable, if not impossible. There are matters which estop a complainant from setting up what would otherwise have been legal or equitable rights, and thereby defeat his suit.
"In all such cases, and, also in all criminal cases, and cases of a criminal nature, a Court of Equity refuses to take jurisdiction, because there is in them a manifest want of Equity; and bills in such cases may either be dismissed on motion for want of Equity, or special demurrer will lie to the bill."
As above said parties who desecrate a graveyard as alleged in this bill are subject to indictment at common law and likewise under our Code, Sec. 10886. Courts of Equity universally do not render their aid to enforce a penalty or a forfeiture but leave the party to his legal remedy. Gibson's Suits in Chancery, page 262, Sec. 296.
For this reason it seems to us that the Chancellor was correct and we therefore must affirm his decree and dismiss the bill and leave the parties to their remedy at law and whatever prosecution seems necessary under the criminal statute.
On Petition to Rehear.
The original complainants, appellants here have filed herein a forceful, courteous and dignified petition to rehear. We have read and re-read this petition along with the original bill and demurrer and our original opinion heretofore rendered in this cause.
The burden or gravamen of our original opinion is to the effect that a mandatory injunction would not lie under the facts set forth in the original bill. In the petition to rehear it is very forcefully argued that the mandatory injunction as prayed for in the bill was not the sole purpose of the bill but that the bill also sought an injunction restraining the defendants from interfering with the public and particularly the complainants and those entitled to visit the graveyard. It is argued, very forcibly, that by the original opinion we have denied an injunction and therefore have kept the complainants and those similarly situated from having the right to visit this graveyard and by thus holding that we have in effect overruled certain former decisions of this Court and the Court of Appeals of this State, to wit, Hines v. State, 126 Tenn. 1, 149 S.W. 1058, 1059, 42 L.R.A., N.S., 1138, and other cases holding to the same effect. The holding in the Hines case and those holding to the same effect is that people in the situation of complainants in this cause "have the right to visit the cemetery for the purpose of repairing, beautifying, and protecting the graves and grounds around the same, and for these purposes they have the right of ingress and egress from the public road nearest the cemetery, to be exercised at seasonable times and in a reasonable manner."
By our original opinion we had no intent, nor do we now, of overruling those cases and the rights of relatives, heirs, etc., to visit and beautify the cemetery and graves of their loved ones.
The question is asked in the petition to rehear:
"Do not all lawsuits engender ill will? Yet, relief, as far as we have been able to learn, has never been denied on this ground."
Of course in our opinion we were not determining the lawsuit on this question. It is true that in effect that most lawsuits at the time, and especially those that are personal, engender ill will. The courts do not determine lawsuits on this question but when it is seen that determination of a lawsuit one way or the other when it can be thus determined will create a great many lawsuits while determination of another *108 way will put an end to litigation and not engender ill will, lawsuits sometimes are determined in this way. At least it seems to us that this is a reasonable way to reason a matter out. We are not determining this lawsuit on this question at all. It was merely a statement of the writer of the opinion and an additional reason of why the mandatory injunction should not be granted.
The original opinion, and it is likewise now our opinion, held that the gravamen of the bill (factually admitted by the demurrer) is to the effect that by the action of the defendants they had "proceeded to wipe its identity from the face of the earth." This allegation is contained in the bill after averments of many facts of what the defendants had done to the cemetery. By the language above it is clearly shown that the defendants "had wiped its identity from the face of the earth", that is, had completely obliterated the cemetery or anything surrounding it. Consequently it seems to us that if the cemetery had been completely wiped from the face of the earth, and there is no longer any cemetery there is certainly no cause shown in the bill, facts of which are admitted on demurrer, wherein an injunction would lie to prevent the defendants from keeping others off of the property. There are no longer any graves or things of the kind for people to visit and beautify, etc. Clearly if it was shown that a graveyard was being bothered or trespassed on and that the people who were entitled to get to it were being kept off the Chancellor should enjoin such a thing as was done in the Hines case and others, but when the graveyard had been completely obliterated there is no longer anything to do except to leave the parties to their actions at law as was indicated in our original opinion.
Many, many years ago Mr. Justice Story, in Jenkins v. Eldredge, Fed. Cas. No. 7267, 3 Story 299, made a statement which is very applicable in the present situation. This statement is:
"During a pretty long period of judicial life, it has been my misfortune on many occasions to have differed widely from counsel on one side or the other, in important causes, as to the merits thereof. But this, although a matter of regret, could not, as it ought not, in any, the slightest degree, to influence the duties or judgment of the court."
We have given special thought to this petition to rehear and for the reasons above stated must overrule it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2439539/ | 268 S.W.2d 244 (1954)
McNIEL
v.
FORT WORTH BASEBALL CLUB.
No. 15505.
Court of Civil Appeals of Texas, Fort Worth.
April 30, 1954.
Rehearing Denied May 28, 1954.
*245 Joe Burt, Fort Worth, for appellant.
Stone, Agerton, Parker & Kerr and G. W. Parker, Jr., Fort Worth, for appellee.
RENFRO, Justice.
Suit was brought by John B. McNiel against the Fort Worth Baseball Club of the Texas League for personal injuries. From a summary judgment in favor of the Baseball Club, McNiel has appealed.
In his petition appellant alleged that he purchased a ticket in the reserve section behind first base in LaGrave Field on the occasion in question; the section was unscreened, a fact which he knew; he had requested a seat in that particular section because he preferred it to any other; he was familiar with the game of baseball, having played it in his younger life and having been a spectator at many baseball games since his playing days; on the occasion in question he was seated in the place above indicated when he was "struck by a vagrant baseball which had been deflected from the bat of a player standing in the batters box and trying to hit baseballs that were being thrown at and to him by a teammate * * *." In other words, he was hit by a foul ball during batting practice.
Allegations in the petition alleged it was the general custom to place a screen or open wire cage to the rear of the batter during batting practice; that in the normal course the cage would stop foul balls and in the normal course the cage was left behind all batters during batting practice, and spectators were free to visit and purchase from vendors without being on the lookout for foul balls, and further that on the occasion in question immediately before he was struck, employees of the Ball *246 Club, in the course of their employment, removed the batting cage; after the cage was removed batting practice continued and a foul ball hit him in the left eye. He alleged that the employees were negligent in removing said cage before batting practice ceased and he was entitled to rely on the general practice of appellee in leaving the cage in place during the entire period of batting practice.
The appellee filed an answer in which it alleged that appellant purchased a seat in a section of the ball park that was unprotected by a screen wire, that if the batting screen was removed prior to the accident appellant saw same removed and remained in his seat and saw that batting practice was continuing; that in view of the foregoing appellant assumed the risk of any injury from being hit by a foul ball, and, in the alternative, he was guilty of contributory negligence in remaining in the unprotected portion of the stand after he had observed that batting practice continued after the removal of the cage.
After taking appellant's deposition the appellee moved for summary judgment, based on appellant's pleadings and the deposition. Upon due hearing the court rendered a short form judgment for appellee for the reason "there is no genuine issue of any material fact * * *."
There was no evidence introduced on the hearing on the motion for summary judgment, other than the pleadings and appellant's deposition.
According to the deposition he was a man forty-eight years of age. In his younger days he played baseball and has since been a regular patron of games. He has attended most of the Fort Worth Texas League home games. When he arrived at the ball park on the night of the accident, batting practice was in progress at home plate. He usually sat in the same section where he was sitting the night of the accident. Batting practice on this occasion was to the outfield from home plate. After he had watched a few minutes he saw a small tractor move the batting cage out of the park. For ten minutes thereafter batting practice continued and he continued to watch said practice. He knew the ball which hit him came from home plate because he saw the ball batted.
It is the general rule in Texas and other states that a baseball club which is in the business of providing that form of public entertainment for profit and invites the general public to attend its games is not an insurer of the safety of the spectators of the game but is bound only to exercise reasonable care, by which is meant a degree of care commensurate with the circumstances to protect its patrons against injury. So far as regards the danger to a spectator of being struck and injured by a ball batted into the stands, a circumstance which is commonly incident to the inherent nature of the game, the club is held to have discharged its full duty when it has provided adequately screened seats in stands in which the patron may sit if he so desires; and where the patron, with a choice to be made of a seat behind the screen or in the unprotected portion of the stands, voluntarily and with full knowledge of the risks and dangers to be encountered, chooses the latter and while occupying such a seat is struck by a ball and injured, he will be held to have assumed the risk of a necessary and ordinary incident of the game or else to have been guilty of contributory negligence in having chosen an unprotected seat when a protected one was available. Keys v. Alamo City Baseball Co., Tex.Civ.App., 150 S.W.2d 368; Williams v. Houston Baseball Association, Tex.Civ.App., 154 S.W.2d 874; 52 Am.Jur., p. 308, sec. 65; 62 C.J., p. 876, sec. 72, p. 877, sec. 75; Brisson v. Minneapolis Baseball & Athletic Association, 185 Minn. 507, 240 N.W. 903; Kavafian v. Seattle Baseball Club Association, 105 Wash. 215, 177 P. 776, 181 P. 679; Crane v. Kansas City Baseball & Exhibition Co., 168 Mo.App. 301, 153 S.W. 1076.
Although he did not plead extra hazard, appellant contends in his brief that the removal of the cage during batting practice was an extra hazard raising a jury issue.
*247 Preliminary practice and "warming up" sessions between players on the ground adjacent to seats and grandstands before or during actual play are governed by the general rules pertaining to occurrences during the actual game. Blackhall v. Albany Baseball & Amusement Co., Inc., 157 Misc. 801, 285 N.Y.S. 695; Brummerhoff v. St. Louis National Baseball Club, Mo.App. 149 S.W.2d 382; Lorino v. New Orleans Baseball & Amusement Co., Inc., 16 La.App. 95, 133 So. 408; Zeitz v. Cooperstown Baseball Centennial, Inc., Sup., 29 N.Y.S.2d 56.
In the instant case the appellant, long familiar with baseball as a player and patron, saw the batting cage removed. Assuming, as he plead, that the cage was for the purpose of preventing foul balls from injuring spectators, the appellant, by his own admission, knew for at least ten minutes before the accident that said cage had been removed from the park. He knew for fully ten minutes that said "protection" was no longer available. He knew from experience that danger in the unscreened portion of the stand was just as great during the batting practice as while the game was in progress, yet he elected to continue to sit in his preferred section, unprotected by a screen, rather than move to a protected seat. The danger of foul balls was just as obvious to him during practice session as it would have been had the regular game been in progress. He could so conduct himself as to be on the side of safety in either case. In either instance, practice or regular game, he could foresee the possibility of foul balls being batted into the stands.
The appellant, having chosen to sit in an unscreened section because he preferred to sit there and knowing that balls are often hit foul and knowing that there was no protection between him and the batter, owed the duty to himself to move to a protected section during the remaining period of the batting practice session, or, choosing to remain in his seat, be prepared to catch or duck any foul balls coming his way. He did none of these things.
We are forced to conclude that the appellant assumed the risk incident to batting practice and, as a matter of law, based on his own pleadings and testimony, has not shown any liability on the part of appellee.
There being no issue of fact to be decided by the court or jury, the court was correct in rendering summary judgment that appellant take nothing.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2439525/ | 268 S.W.2d 19 (1954)
PUBLIC SERVICE COMMISSION et al.
v.
CITIES OF SOUTHGATE, HIGHLAND HEIGHTS et al.
Court of Appeals of Kentucky.
April 30, 1954.
Rehearing Denied June 11, 1954.
J. D. Buckman, Jr., Atty. Gen., J. Gardner Ashcraft, Asst. Atty. Gen., Stephens L. Blakely, Blakely, Moore & Blakely, Covington, Floyd C. Williams, Cincinnati, Ohio, Cornelius W. Grafton, Wyatt, Grafton & Grafton, Louisville, for appellants.
James M. Honaker, Frankfort, for appellees.
CULLEN, Commissioner.
In an action in the Franklin Circuit Court, the cities of Southgate, Highland Heights, Cold Springs, Crestview, Bellevue, Dayton and Fort Thomas sought to set aside an order of the Public Service Commission which approved a sale of water utility properties by Union Light, Heat and *20 Power Company to Commonwealth Water Company. The court entered judgment setting aside the order and remanding the case to the commission for further proceedings. From that judgment the commission, Union and Commonwealth have appealed.
Prior to April 3, 1953, Union had been operating electric, gas and water systems in a substantial area in northern Kentucky, principally in Campbell County. The water system served the cities of Fort Thomas, Bellevue, Dayton and Silver Grove, and a number of unincorporated areas. The water business represented only about five percent of Union's total business, its main operations being in the fields of gas and electricity.
On April 3, 1953, Union entered into a contract to sell its water system to Commonwealth, which was a company newly organized by a group of persons who were experienced in the water business and who owned and were operating another water company in a different part of the state. The price was approximately $600,000. The contract was conditioned upon approval by the Public Service Commission, and on April 17, 1953, Union and Commonwealth filed a joint application with the commission for approval of the sale. The cities named in the first paragraph of this opinion thereupon intervened, asking that the proposed sale be disapproved and that the matter be continued for the purpose of enabling the cities to make arrangements to purchase the water system from Union.
During the course of the hearings before the commission, the cities submitted an offer in general terms, that they would buy the water system at the price agreed to be paid by Commonwealth. The proposal was that the purchase would be made either by the cities acting jointly and sharing the cost on a proportionate basis, or by a water district which the cities would cause to be organized under KRS Chapter 74. However, the offer was not complete, in that the cities had not agreed on a specific proration of the cost and other details, nor was a water district organized before the case was decided by the Public Service Commission.
Evidence was brought out on the hearings that, because Union could use joint meter reading and joint billing for its three kinds of utility services, Union's operating costs for the water system would be some $10,000 per year less than those of Commonwealth.
The Public Service Commission found: (1) It had jurisdiction to pass on the proposed sale; (2) the desire of the cities to purchase the property was not sufficient grounds for disapproving the sale; (3) the cities, because of tax considerations, could operate the system more economically than either Union or Commonwealth, but this fact did not constitute grounds for disapproving the sale; (4) it was not necessary to determine "with detailed finality" whether Union or Commonwealth could provide the most economical service; (5) Commonwealth was "ready, willing and able" to provide water service in the area; and (6) the proposed sale was in the public interest. The commission thereupon ordered that the sale be approved, but closed its order with the following statement:
"Nothing contained herein shall be considered as a finding of the Commission with respect to the value of the properties transferred."
Upon their appeal to the circuit court, the cities contended that the public interest would best be served through municipal ownership of the water system, and that in any event the sale to Commonwealth should not have been approved because of the evidence that Commonwealth could not operate the system as cheaply as Union.
The circuit judge, in a written opinion, expressed his views that in the public interest the cities should be given an "equal and adequate opportunity to acquire the water property, on equal terms * * * with Commonwealth," and that it was necessary, in the public interest, that the commission find which of the companies could provide the most economical service. However, the basis assigned by the judge for setting aside the commission's order was that, because of the statement in the order that the commission was not finding the value of the property, the order was unreasonable, *21 arbitrary and invalid. The case was remanded to the commission with directions to find the value of the property, the amount of any offers to buy other than Commonwealth's, and whether Union or Commonwealth could furnish the lower water rate. The commission also was directed to reexamine the evidence "in the light of public interest, and measured in part by the economy of the service considered."
On the appeal to this Court, the first contention of Union and Commonwealth is that the Public Service Commission has no jurisdiction over sales of utility systems. The contention is that this is a question of jurisdiction of subject matter, and therefore, under the general rule that jurisdiction of subject matter cannot be conferred by appearance, waiver or agreement, the fact that the two companies applied to the commission for approval of the sale is of no significance. The Public Service Commission, although joining with the other two appellants in their other contentions, does not join in this one, but maintains it does have jurisdiction.
It is true that the governing statute, KRS Chapter 278, does not in express terms confer jurisdiction upon the Public Service Commission to pass upon sales of utility systems. However, we are of the opinion that the jurisdiction is implied necessarily from the statutory powers of the commission to regulate the service of utilities. KRS 278.040.
Counsel concede that a public utility subject to the jurisdiction of the Public Service Commission cannot discontinue operation without approval of the commission. See 43 Am.Jur., Public Utilities and Services, § 78, p. 621. Obviously, if a sale were made to a purchaser incapable of carrying on the service, the sale would be the practical equivalent of a discontinuance of service. The Public Service Commission is charged with responsibility, and vested with power, to see that the service of public utilities is adequate, and where an existing utility proposes to sell its system the commission, in order to carry out its responsibility, must have the opportunity to determine whether the purchaser is ready, willing and able to continue providing adequate service.
It is our opinion that the power of the Public Service Commission to determine whether a proposed purchaser of a utility system is ready, willing and able to provide adequate service is necessarily implied from the statutes. However, the appellee cities would have us extend the implication so as include the power in the commission to determine whether public ownership is more beneficial than private ownership, and to determine under whose ownership the lowest rates may be achieved. The latter two questions address themselves to basic public policy, upon which we feel an express legislative declaration is required. From a mere grant of power to regulate rates and service, we are unwilling to imply a declaration of policy that not only must rates be reasonable, but the type of ownership that will provide the lowest rates is the only type of ownership that will be permitted to operate a utility service.
We do not ascribe the same meaning as did the circuit judge to the final statement in the order of the Public Service Commission, that nothing in the order should be considered as a finding with respect to the value of the property. Apparently, he construed this statement as meaning that the commission had given no consideration to the value of the property in relation to the purchase price. We think the statement was intended merely as a warning to the parties that the sale price would not be taken as conclusive for rate base purposes.
From the commission's order as a whole, it is apparent that the commission did give general consideration to the value of the property in relation to the price offered, at least to the extent of determining that the transaction was not unreasonable or impracticable. In passing upon the ability of Commonwealth to provide adequate service, the commission necessarily considered the *22 financial structure of Commonwealth, and the probabilities of Commonwealth being able to operate successfully from a financial standpoint.
As a matter of fact, no one contended before the commission that the price was excessive. The cities were willing to pay the same price.
We think it was sufficient for the commission to make a broad determination that the price was within the general range of a fair price. To require the commission to fix a specific valuation on the property, in a proceeding for sale, would unduly hamper and restrict the commission in later regulation of rates.
The judgment is reversed, with directions to set it aside and to enter a judgment sustaining the order of the Public Service Commission. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2911841/ | IN THE
TENTH COURT OF APPEALS
No. 10-09-00005-CV
IN RE WILLIAM CARROLL ROBERTSON
AND LESTER EUGENE ROBERTSON
Original Proceeding
MEMORANDUM OPINION
In a prior proceeding, we were asked to decide certain issues. We did. We
issued an opinion. In that opinion we decided only the specific issues presented to us by
the parties then before us. We issued a judgment. Review was sought but denied. We
issued our mandate.
The trial court has now allowed a new party to intervene in the proceeding in the
lower court. The trial court has abated the proceeding until more parties are added to
the proceeding in the lower court. The trial court has stayed the execution of the
judgment.
We are now asked to compel the trial court to set aside these orders and enforce
our mandate.
Background facts
William Hix owns property on Hog Creek, down-stream from property owned
by the Robertsons.
A soil conservation flood-retarding dam was built on Hix’s property, creating a
lake of approximately 100 total surface acres, 90 of which are above real property, the
dirt, owned by Hix and approximately 10 of which are above real property owned by
the Robertsons and others.
The Robertsons sought a declaratory judgment that Hog Creek was navigable at
the area where the lake was constructed. According to the Robertsons, upon such a
determination the lake waters would be owned by the State for the benefit of the public;
and therefore, the Robertsons, as members of the public, would be entitled to use the
water for recreation or sport.
In the prior proceeding, the trial court so held and we modified the judgment
and affirmed the trial court’s judgment as modified. Hix v. Robertson, 211 S.W.3d 423
(Tex. App.—Waco 2006, pet. denied). The Texas Supreme Court denied further review.
Hix v. Robertson, No. 06-1119, 2007 Tex. LEXIS 1139 (Tex. Dec. 21, 2007) (rh’g denied May
18, 2008).
Our mandate issued July 25, 2008.
Procedures Since the Mandate
Since our mandate issued,
1. Coryell County moved to intervene.
2. Hix moved to abate the proceeding.
In re Robertson Page 2
3. Coryell County moved to abate the proceeding.
4. Hix moved to stay execution of the trial court’s judgment.
5. The trial court determined that the prior judgment was not final and
granted all four motions.
By mandamus, the Robertsons bring four issues which assert the trial court erred
in its determination that the trial court’s judgment was not final and granting the
motions listed above. They request that we compel the trial court to comply with this
Court’s mandate.
Did The Tenth Court of Appeals Have Jurisdiction?
What happens if an order/judgment is truly interlocutory but is appealed? What
happens if no one challenges the appellate court’s jurisdiction to decide an appeal that
is interlocutory? What happens if the order/judgment was erroneously intended to be
final but the error is not presented to the court of appeals and that error is, therefore,
not reviewed and decided on appeal?
This Court proceeded to review the issues presented in the prior proceeding
which did not include an allegation or issue on the final nature of the trial court
judgment. The question now presented by this mandamus proceeding is whether the
conclusion was correct, and if it was not correct, then what is the effect on this Court’s
judgment?
In Lehmann v. Har-Con, the Texas Supreme Court gave the appellate courts a test
to use to determine when a judgment is final for the purposes of appeal. Lehmann v.
Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). The opinion discusses two alternate tests for
In re Robertson Page 3
determining the finality of a judgment. The first test is that a judgment is not final
unless it actually disposes of every pending claim and party. Id. at 205. The second test
is that a judgment is not final unless it clearly and unequivocally states that it finally
disposes of all claims and all parties. Id. Restated, to meet this second test for finality,
there must be some other clear indication in the judgment that the trial court intended
the judgment to completely dispose of the entire case. Id.
The Robertsons argue that the judgment in this case meets Lehmann’s first test.
We disagree. The judgment leaves serious questions about whether claims by one
plaintiff, whether claims against one defendant, and whether at least one counterclaim
by another defendant, were actually resolved by the judgment.
The judgment does, however, meet the second test for finality as that test was
restated in Lehmann—that there is a clear indication the trial court intended the
judgment to completely dispose of the entire case. The portion of the judgment that
meets the second test is as follows:
IT IS FURTHER ORDERED that the injunctions herein granted will
become effective 30 days after this judgment is signed unless Defendants
perfect an appeal to the Court of Appeals within that 30-day period. In
the event that Defendants perfect an appeal within 30 days of the date this
judgment is signed, the injunction will become effective 30 days after the
date the appeal is dismissed, or 30 days after the date the Court of Appeals
renders its judgment, whichever event occurs earlier. If an appeal is taken
to the Supreme Court of Texas, the injunctions will not go into effect until
30 days after a mandate is issued, if the Defendants are unsuccessful in the
appeal.
Because the trial court provided for the consequences of an appeal and how that appeal
would impact the effective implementation date of the permanent injunction, it is clear
In re Robertson Page 4
the trial court intended the judgment to completely dispose of the entire case.
Accordingly, the order was final, erroneously final because it did not actually dispose of
all the parties and claims, but final for the purposes of appeal; and we therefore had
jurisdiction to decide the issues presented on appeal. Lehmann, 39 S.W.3d at 200.
Mandamus and the Enforceability of Our Mandate
When the trial court clerk receives the mandate from the appellate court, the
appellate court's judgment must then be enforced. TEX. R. APP. P. 51.1(b). A district
court has no discretion to interpret or review an appellate court's mandate or judgment.
In re Castle Tex. Prod. Ltd. P'ship, 157 S.W.3d 524, 527 (Tex. App.—Tyler 2005, orig.
proceeding); Martin v. Credit Protection Ass'n, 824 S.W.2d 254, 255 (Tex. App.—Dallas
1992, writ dism’d woj); Schliemann v. Garcia, 685 S.W.2d 690, 692 (Tex. App.—San
Antonio 1984, orig. proceeding). A trial court's failure or refusal to comply with a court
of appeals mandate is an abuse of discretion. Lee v. Downey, 842 S.W.2d 646, 648 (Tex.
1992). Further, a writ of mandamus will issue to compel compliance with the mandate
of an appellate court. Schliemann, 685 S.W.2d at 692; accord Wells v. Littlefield, 62 Tex. 28,
31 (1884).
Instead of enforcing our judgment when it received our mandate, the trial court,
upon Hix’s motion, stayed the execution of the judgment. By staying the enforcement
of the judgment, the trial court refused to comply with our mandate. The trial court
had no discretion to refuse to enforce the mandate of this Court.
Accordingly, the petition for writ of mandamus is granted. A writ will issue
only if the trial court does not withdraw the portion of its order signed December 9,
In re Robertson Page 5
2008 that stayed the execution of the trial court’s judgment, as modified and affirmed
by the judgment of this Court, within 30 days from the date of this opinion.1
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Petition granted
Opinion delivered and filed April 15, 2009
[OT06]
1 We need not review the other issues presented to us by this mandamus, so we do not decide them.
Further, while there was some discussion both in the briefs of the parties and at oral argument of the
meaning and scope of certain terms or provisions of the trial court’s judgment that was affirmed as
modified by our judgment, we have not been asked and we do not express or imply any construction,
interpretation, or meaning of, including a determination of who might be bound by, the trial court’s
judgment which we affirmed as modified.
In re Robertson Page 6 | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2911969/ | 14‐1993‐cv
Salmon v. Blesser
14‐1993‐cv
Salmon v. Blesser
In the
United States Court of Appeals
For the Second Circuit
________________
August Term, 2014
(Submitted: June 15, 2015 Decided: September 10, 2015)
Docket No. 14‐1993‐cv
________________
OLIVER SALMON,
Plaintiff‐Appellant,
—v.—
THOMAS BLESSER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS AN ALBANY, NEW
YORK POLICE OFFICER, ALBANY POLICE DEPARTMENT, CITY OF ALBANY, NEW YORK,
Defendants‐Appellees,
JOHN DOE, 1 AND 2, THE NAME BEING FICTITIOUS BUT INTENDED TO REPRESENT ONE
OR MORE EMPLOYEES OF THE ALBANY POLICE DEPARTMENT,
Defendants.
________________
Before:
JACOBS, RAGGI, AND LYNCH, Circuit Judges.
________________
1
14‐1993‐cv
Salmon v. Blesser
On appeal from a judgment of dismissal entered in the Northern District of
New York (D’Agostino, J.), plaintiff argues that his complaint alleging forcible
ejection from the Albany City Court states plausible claims for relief under the
First and Fourth Amendments to the Constitution, as well as under New York
law prohibiting the intentional infliction of emotional distress. While an order to
depart a public area does not, by itself, effect a “seizure” of the person so
ordered, see Sheppard v. Beerman, 18 F.3d 147 (2d Cir. 1994), where, as here, a
plaintiff alleges that an officer used physical force to restrain and control the
plaintiff’s movements, that allegation does plausibly plead a seizure subject to
the Fourth Amendment’s reasonableness requirement. Accordingly, we vacate
the dismissal of plaintiff’s Fourth Amendment claim against defendant Blesser,
but affirm the judgment in all other respects.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
________________
KEITH FRANK SCHOCKMEL, ESQ., Albany, New York, for Plaintiff‐
Appellant.
ERIC SUGAR, Assistant Corporation Counsel, Albany, New York, for
John J. Reilly, Corporation Counsel, Albany, New York, for
Defendants‐Appellees.
________________
2
14‐1993‐cv
Salmon v. Blesser
REENA RAGGI, Circuit Judge:
Plaintiff Oliver Salmon sued the City of Albany, the Albany Police
Department, Police Officer Thomas Blesser, and two “John Doe” employees of
the Police Department under 42 U.S.C. § 1983 and New York State law for
alleged constitutional and tort injuries resulting from the use of physical force to
eject him from the Albany City Court. Salmon now appeals from a judgment
entered on May 29, 2014, in the United States District Court for the Northern
District of New York (Mae A. D’Agostino, Judge) dismissing his complaint in all
respects. See Salmon v. Blesser, No. 1:13‐cv‐1037(MAD/RFT), 2014 WL 1883552
(N.D.N.Y. May 12, 2014). Specifically, Salmon appeals from the dismissal of his
claims against Officer Blesser, in his individual capacity, under the First and
Fourth Amendments as incorporated by the Fourteenth Amendment and under
state law prohibiting intentional infliction of emotional distress. See Fed. R. Civ.
P. 12(b)(6).1
1 Because Salmon fails to appeal the dismissal of his equal protection claim
against Blesser or the dismissal of all claims against the other defendants or
against Blesser in his official capacity, we deem those claims abandoned, and we
do not discuss them further in this opinion. See, e.g., Grogan v. Blooming Grove
Volunteer Ambulance Corps, 768 F.3d 259, 263 n.4 (2d Cir. 2014).
3
14‐1993‐cv
Salmon v. Blesser
On de novo review, see, e.g., Ricci v. Teamsters Union Local 456, 781 F.3d
25, 26 (2d Cir. 2015), we affirm the challenged dismissal of Salmon’s First
Amendment and emotional distress claims, but we vacate dismissal of his Fourth
Amendment claim. To the extent the district court relied on Sheppard v.
Beerman, 18 F.3d 147 (2d Cir. 1994), to conclude that removals from courthouses
do not constitute “seizures” subject to the Fourth Amendment, we explain herein
that Sheppard states a general rule that a police order to leave an area, without
more, does not effect a seizure of the person so ordered. Nevertheless, where, as
here, an official uses physical force to effect the ejection, so that for a time,
however brief, he intentionally restrains the person and controls his movements,
a plaintiff can plausibly plead a seizure subject to the Fourth Amendment’s
reasonableness requirement. Accordingly, we affirm in part, vacate in part,
remand the case to the district court for further proceedings consistent with this
opinion.
I. Background
A. Salmon’s Removal from the Courthouse
The following facts are drawn from Salmon’s complaint and are presumed
to be true for purposes of this appeal. See Diaz v. Paterson, 547 F.3d 88, 91 (2d
Cir. 2008).
4
14‐1993‐cv
Salmon v. Blesser
On September 1, 2010, Salmon accompanied his attorney to the Albany
City Court to examine a court file. Because only lawyers were permitted into the
clerk’s office where the file was kept, Salmon waited in a public area outside the
office while his attorney went inside. As Salmon waited, Officer Blesser
approached and ordered persons to leave the area. Salmon explained that he
was waiting for his attorney and offered to summon counsel to confirm that fact.
According to Salmon, Blesser “became enraged . . . , and without warning,
grabbed [Salmon] by the collar and violently twisted his arm up behind his back
and began shoving [him] toward the door.” Compl. ¶ 23. When Salmon
complained that Blesser was hurting him, Blesser twisted Salmon’s arm further.
Blesser then “physically threw [Salmon] out the door and threatened [him] with
arrest” if he reentered the building. Id. ¶ 28. Salmon asserts that these actions
caused him permanent physical injury.
B. Procedural History
On August 23, 2013, Salmon filed this federal action. Defendants moved to
dismiss, which motion the district court granted on May 12, 2014. See Salmon v.
Blesser, 2014 WL 1883552. As to the Fourth Amendment claim of unreasonable
seizure, the district court concluded that Salmon failed plausibly to plead a
seizure of his person in light of Sheppard v. Beerman, wherein this court held
5
14‐1993‐cv
Salmon v. Blesser
that a fired law clerk was not seized when court officers ordered him to leave his
formerly employing judge’s chambers and escorted him out of the courthouse.
See id. at *6–7. Sheppard explained that no seizure occurred because the clerk
remained “free to go anywhere else that he desired, with the exception of [the
judge’s] chambers and the court house.” Sheppard v. Beerman, 18 F.3d at 153
(internal quotation marks omitted). To the extent Salmon also complained of
excessive force, the district court held that such a claim was not cognizable
absent a seizure. See Salmon v. Blesser, 2014 WL 1883552, at *7.
The district court afforded Salmon 14 days to amend his complaint. Rather
than amend, however, Salmon let the deadline pass, whereupon he filed notice of
this appeal.2
II. Discussion
A. Fourth Amendment Claim
Salmon’s appeal from the dismissal of his Fourth Amendment claim
against Blesser presents us with a single question: Did he allege facts sufficient
to plead a plausible “seizure” of his person? See County of Sacramento v. Lewis,
2 A dismissal with leave to amend is ordinarily a non‐appealable order, see
Slayton v. Am. Express Co., 460 F.3d 215, 224 (2d Cir. 2006), but an appeal may
be pursued where the plaintiff disclaims any intention to amend or where, as
here, the district court sets a deadline for amending and the plaintiff does not
amend within the deadline, see id. at 224 & n.7.
6
14‐1993‐cv
Salmon v. Blesser
523 U.S. 833, 843 (1998) (noting that “Fourth Amendment covers only ‘searches
and seizures’”). We conclude that he did.
In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court ruled that a person
is seized “when [an] officer, by means of physical force or show of authority, . . .
in some way restrain[s] the liberty of a citizen.” Id. at 19 n.16. Determining
when “physical force” effects such restraint has normally been straightforward.
See, e.g., id. at 7 (describing seizure in which officer “grabbed . . . Terry, spun
him around . . . , and patted down the outside of his clothing”); United States v.
Freeman, 735 F.3d 92, 96 (2d Cir. 2013) (concluding that suspect was seized when
officer “grabb[ed him] around the waist . . . placing him in a ‘bear hug’”). To
explain when a sufficient “show of authority” effects restraint, the Supreme
Court has relied on a totality‐of‐the‐circumstances test, asking whether a
reasonable person would believe that he was “not free to leave.” INS v. Delgado,
466 U.S. 210, 215 (1984) (internal quotation marks omitted); accord Brendlin v.
California, 551 U.S. 249, 255 (2007); United States v. Simmons, 560 F.3d 98, 105
(2d Cir. 2009). Indeed, we referenced this “free to leave” test in Sheppard v.
Beerman, identifying no seizure where a fired law clerk “was free to go
anywhere else that he desired with the exception of [the judge’s] chambers and
7
14‐1993‐cv
Salmon v. Blesser
the court house.” 18 F.3d at 153 (internal quotation marks omitted) (observing
that if authorities had retained Sheppard’s car keys or wallet, he arguably would
have been seized because that would have prevented him from being free to
leave).
As the Supreme Court has recognized, the “free to leave” test may not be
the best measure of a seizure where a person has no desire to leave the location
of a challenged police encounter. See Florida v. Bostick, 501 U.S. 429, 434–36
(1991) (observing, in context of bus sweep, that “when the person is seated on a
bus and has no desire to leave, the degree to which a reasonable person would
feel he or she could leave is not an accurate measure of the coercive effect of the
encounter”). Thus, Bostick framed the seizure inquiry as “whether a reasonable
person would feel free to decline the officers’ requests or otherwise terminate the
encounter.” Id. at 436.3 The “request” at issue in the Bostick encounter was for a
seated passenger to answer questions and allow his luggage to be searched. See
id. at 431–32. Noting that such requests, by themselves, would not effect a
3 This hardly renders the free‐to‐leave inquiry obsolete because, in many
circumstances, “departure is the most obvious way to ‘otherwise terminate the
encounter.’” 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 9.4(c), at 609 (5th ed. 2012) (quoting Florida v. Bostick, 501 U.S. at
436).
8
14‐1993‐cv
Salmon v. Blesser
seizure if posed in a terminal lobby to passengers who could walk away, the
Supreme Court remanded for consideration of whether any different conclusion
obtained when the “free to decline/terminate” standard was applied to the bus
sweep at issue. See id. at 434–35, 437.
The circumstances in this case are not analogous to either Bostick or
Delgado. Blesser was not looking to question or search Salmon at a site where he
wished to remain. Nor was he seeking to prevent Salmon from leaving the
courthouse. To the contrary, Blesser actively sought Salmon’s departure from
the courthouse. See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment § 9.4(c), at 619 (5th ed. 2012) (noting distinction between
police conduct conveying “not that the person was ‘not free to leave,’ but rather
that he was ‘not free to stay’” (emphasis in original)).
Police officers frequently order persons to leave public areas: crime scenes,
accident sites, dangerous construction venues, anticipated flood or fire paths,
parade routes, areas of public disorder, etc. A person may feel obliged to obey
such an order. Indeed, police may take a person by the elbow or employ
comparable guiding force short of actual restraint to ensure obedience with a
departure order. Our precedent does not view such police conduct, without
9
14‐1993‐cv
Salmon v. Blesser
more, as a seizure under the Fourth Amendment as long as the person is
otherwise free to go where he wishes. That is the crux of Sheppard v. Beerman,
which concluded that a person who is ordered to leave a judge’s chambers and
then escorted out of the courthouse has not been seized because the person
remains free to go anywhere else that he wishes. See 18 F.3d at 153; see generally
Stephen E. Henderson, “Move on Orders” as Fourth Amendment Seizures, 2008
B.Y.U. L. Rev. 1, 45 (2008) (arguing that “move on” orders are generally not
Fourth Amendment seizures). Thus, if Blesser had merely ordered or escorted
Salmon out of the courthouse, or even if Blesser had barred Salmon’s reentry to
the courthouse, the district court could well have relied on Sheppard v. Beerman
to conclude that no “seizure” had occurred. See Maxwell v. City of New York,
102 F.3d 664, 668 n.2 (2d Cir. 1996) (citing Sheppard for proposition that refusing
entry does not constitute seizure).4
4 Only one of our sister circuits has concluded otherwise. See Bennett v. City of
Eastpointe, 410 F.3d 810, 834 (6th Cir. 2005) (holding that “person is seized not
only when a reasonable person would not feel free to leave an encounter with
police, but also when a reasonable person would not feel free to remain
somewhere, by virtue of some official action” (emphasis in original)). The
circumstances of Bennett—an order for black bicyclists to leave the majority‐
white suburb of Eastpointe and return to Detroit—suggest equal protection
concerns. While Salmon initially pleaded an equal protection claim, he has
abandoned it on appeal, and, thus, we do not address it. See supra note 1.
10
14‐1993‐cv
Salmon v. Blesser
Here, however, Blesser’s method for removing Salmon was not simply to
order or escort him from the courthouse, or to use guiding force to direct him as
needed. It was physically to grab him without encountering reprisal or
resistance, and to use painful force to control Salmon’s movements. That
distinguishes this case from Sheppard, in which no use of physical force was
alleged. See Compl. ¶ 22, Sheppard v. Beerman, No. CV 91‐1349 (E.D.N.Y. Apr.
16, 1991) (alleging, in case brought only against judge, that on morning at issue,
before judge entered chambers, principal court officer “directed” plaintiff to
leave courthouse immediately, whereupon two other officers “escorted” plaintiff
out of building). Whatever other actions might effect a Fourth Amendment
The Supreme Court tangentially addressed departure orders in City of Chicago
v. Morales, 527 U.S. 41 (1999), when it struck down Chicago’s Gang
Congregation Ordinance as unconstitutionally vague. Three of the six justices
forming the majority were prepared to identify “an individual’s decision to
remain in a public place of his choice” as part of the “liberty” afforded by due
process. Id. at 53–54 (opinion of Stevens, J., joined by Souter and Ginsburg, JJ.).
An equal number of dissenting justices, however, disavowed such a liberty
interest. See id. at 102–06 (Thomas, J., dissenting, joined by Rehnquist, C.J. and
Scalia, J.) (tracing history of anti‐loitering laws). Thus, the due process issue
remains unsettled. See also id. at 84 (Scalia, J., dissenting) (noting that
discriminatory application of challenged law could implicate equal protection).
In any event, nowhere in Morales, nor in any other case, has the Supreme Court
suggested that police orders directing persons to move from particular public
areas while leaving them free to go anywhere else they wish effect Fourth
Amendment seizures of the persons.
11
14‐1993‐cv
Salmon v. Blesser
seizure of a person ordered to depart a public area, the intentional use of
physical force to restrain the person and control the movements of a compliant
person certainly does. See California v. Hodari D., 499 U.S. 621, 626 (1991)
(stating that “word ‘seizure’ readily bears the meaning of a laying on of hands or
application of physical force to restrain movement”); see also Webster’s Third
New International Dictionary 2057 (1986) (defining “seize” as, inter alia, “to
possess or take by force” and “to take hold of”); 2 Samuel Johnson, A Dictionary
of the English Language (8th ed. 1799) (defining “to seize” as, inter alia, “[t]o take
hold of; to grip[]; to grasp” and “to take possession of by force”). Thus, at the
point Blesser allegedly used such force, it no longer mattered whether his
ultimate purpose was to secure Salmon’s departure from the courthouse or to
prevent it. For such time as Blesser held Salmon by the collar and twisted his
arm behind his back, Blesser was intentionally restraining and controlling
Salmon’s movements, thereby transforming their encounter, even if only briefly,
into a detention, which qualifies as a seizure of Salmon’s person. See Brendlin v.
California, 551 U.S. at 255 (recognizing that seizure can occur even where
“‘resulting detention [is] quite brief’” (quoting Delaware v. Proust, 440 U.S. 648,
653 (1979))); United States v. Sugrim, 732 F.2d 25, 28 (2d Cir. 1984) (“A detention
12
14‐1993‐cv
Salmon v. Blesser
no matter how momentary is a seizure under the Fourth Amendment.”); see
generally Henderson, “Move On” Orders as Fourth Amendment Seizures, 2008
B.Y.U. L. Rev. at 16 (suggesting that use of force could transform “move on”
order into seizure if interaction thereby became, “even momentarily, a
detention”). Whether such a detention or seizure is reasonable is of course
another question.5
To be clear, we do not here hold that any physical contact will transform
an order to depart a public place into a Fourth Amendment seizure. But where
such an order is accompanied by the use of sufficient force intentionally to
restrain a person and gain control of his movements—as the collar grab and arm
twisting allegedly did here—we conclude that a Fourth Amendment seizure is
plausibly alleged. See generally id. (suggesting that move‐on order “emphasized
by a physical shove would presumably not work a seizure,” whereas order
accompanied by menacing “grabbing by the collar . . . might constitute a
5 While brevity does not preclude seizure, the duration of the seizure may be
relevant to assessing reasonableness. See generally Maryland v. King, 133 S. Ct.
1958, 1969 (2013) (observing that, although cheek swab to obtain DNA sample
constituted search, intrusion was “negligible,” a fact “of central relevance to
determining reasonableness”); see also id. at 1977–79 (holding that cheek swab
was reasonable because, in part, intrusion was “minimal”); Terry v. Ohio, 392
U.S. at 28–30 (finding a brief external pat‐down reasonable).
13
14‐1993‐cv
Salmon v. Blesser
momentary detention” amounting to seizure). Accordingly, we vacate so much
of the district court’s judgment as dismisses Salmon’s Fourth Amendment claim
against Blesser for failure to plead the requisite “seizure.”
B. First Amendment Claim
To state a First Amendment claim, a plaintiff must allege facts admitting a
plausible inference that the defendant’s actions restricted, or were retaliation
against, speech or conduct protected by the First Amendment. See Virginia v.
Black, 538 U.S. 343, 358 (2003) (stating that First Amendment protects “symbolic
or expressive conduct” as well as “actual speech”); Velez v. Levy, 401 F.3d 75, 97
(2d Cir. 2005) (requiring that plaintiff’s actions be “protected by First
Amendment” to support First Amendment retaliation claim). Salmon asserts
that Blesser violated his First Amendment right to access judicial records by
forcing him out of the courthouse when he “was at the City Court Clerk’s office
to examine a file.” Appellant’s Br. 13; see Hartford Courant Co. v. Pellegrino, 380
F.3d 83, 90–96 (2d Cir. 2004) (discussing qualified First Amendment right of
access to public documents, including judicial records).
Even assuming that a seizure interfering with the right of access to court
records is actionable under the First Amendment, we conclude that Salmon fails
to plead such a claim for relief. Salmon does not allege that, at the time of his
14
14‐1993‐cv
Salmon v. Blesser
removal, he was himself attempting to access court records. Rather, he asserts
that he was waiting for his attorney, who was attempting to access records on
Salmon’s behalf. Salmon points to no authority, nor are we aware of any,
indicating that being required to wait for one’s attorney outside the courthouse,
when one wished to wait for him inside, interferes with the ability to access
judicial records. Thus, Salmon fails to state a claim that Blesser’s actions violated
his First Amendment rights.
In urging otherwise, Salmon contends that the First Amendment affords a
right to be “in a public place for a lawful purpose.” Appellant’s Br. 14. In
support, he cites to that part of the plurality opinion in Richmond Newspapers,
Inc. v. Virginia, 448 U.S. 555 (1980) (holding that criminal trials must be open to
the public), which states that people “may ‘assemble for any lawful purpose,’”
id. at 578 (opinion of Burger, C.J., joined by White and Stevens, JJ.) (quoting
Hague v. CIO, 307 U.S. 496, 519 (1939) (Stone, J., concurring, joined by Reed, J.)).
But as more recent decisions have clarified, the First Amendment protects
conduct only if it has an expressive purpose, see Clark v. Cmty. for Creative
Non‐Violence, 468 U.S. 288, 293 n.5 (1984); accord Church of Am. Knights of the
Ku Klux Klan v. Kerik, 356 F.3d 197, 205 (2d Cir. 2004); see also Doe v. City of
15
14‐1993‐cv
Salmon v. Blesser
Lafayette, 377 F.3d 757, 764 (7th Cir. 2004) (en banc) (stating that plaintiff’s
prohibition from park triggers First Amendment scrutiny only if conduct “was
infused with an expressive element”); cf. City of Dallas v. Stanglin, 490 U.S. 19,
25 (1989) (rejecting right of “social association” independent of expressive
purpose).6
Salmon does not allege or argue that he was engaged in any expressive
conduct by waiting for his attorney inside the courthouse. Thus, the district
court correctly dismissed his First Amendment claim against Blesser for failure to
state a claim.
C. Intentional Infliction of Emotional Distress
Salmon asserts that Blesser’s alleged conduct (unprovoked grabbing of the
person and twisting of the arm) was sufficiently “extreme and outrageous” to
state a claim for intentional infliction of emotional distress under New York law.
Howell v. N.Y. Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 353 (1993). The
argument fails because, under New York law, an intentional infliction tort may
6 As we have already explained supra note 4, three justices in City of Chicago v.
Morales, 527 U.S. at 53–54 (plurality opinion), identified a person’s decision to
remain in a chosen public place even without expressive purpose as part of the
“liberty” protected by due process, but that view has not commanded a Supreme
Court majority. Further, even those justices rejected First Amendment protection
for such non‐expressive activity. See id. at 52–53.
16
14‐1993‐cv
Salmon v. Blesser
“be invoked only as a last resort,” Turley v. ISG Lackawanna, Inc., 774 F.3d 140,
158 (2d Cir. 2014) (internal quotation marks omitted), “to provide relief in those
circumstances where traditional theories of recovery do not,” Sheila C. v. Povich,
11 A.D.3d 120, 130, 781 N.Y.S.2d 342, 351 (1st Dep’t 2004). Thus, the New York
Court of Appeals has questioned whether an intentional infliction claim can ever
be brought where the challenged conduct “falls well within the ambit of other
traditional tort liability.” Fischer v. Maloney, 43 N.Y.2d 553, 557–58, 402
N.Y.S.2d 991, 993 (1978). All four Appellate Division courts have answered the
question and held that it cannot. See Doin v. Dame, 82 A.D.3d 1338, 1340, 918
N.Y.S.2d 253, 254 (3d Dep’t 2011); Leonard v. Reinhardt, 20 A.D.3d 510, 510, 799
N.Y.S.2d 118, 119 (2d Dep’t 2005); Di Orio v. Utica City Sch. Dist. Bd. of Educ.,
305 A.D.2d 1114, 1115, 758 N.Y.S.2d 743, 745 (4th Dep’t 2003); Hirschfeld v. Daily
News, L.P., 269 A.D.2d 248, 249, 703 N.Y.S.2d 123, 124 (1st Dep’t 2000).
Blesser’s alleged conduct would have been actionable under state law as a
battery. See Bower v. City of Lockport, 115 A.D.3d 1201, 1204, 982 N.Y.S.2d 621,
625 (4th Dep’t 2014) (listing elements of battery as “bodily contact, made with
intent, and offensive in nature” (internal quotation marks omitted)); Cotter v.
Summit Sec. Servs., Inc., 14 A.D.3d 475, 475, 788 N.Y.S.2d 153, 154 (2d Dep’t 2005)
17
14‐1993‐cv
Salmon v. Blesser
(same); Zgraggen v. Wilsey, 200 A.D.2d 818, 819, 606 N.Y.S.2d 444, 445 (3d Dep’t
1994) (same); see also Hassan v. Marriott Corp., 243 A.D.2d 406, 407, 663
N.Y.S.2d 558, 559 (1st Dep’t 1997) (“To maintain a cause of action for battery,
plaintiffs must prove bodily contact, with intent that was offensive in nature.”
(citation omitted)). Moreover, even assuming that the battery here was
particularly severe, it was not so far beyond the normal battery as to amount to a
different category of wrong requiring a separate cause of action.
Accordingly, because other tort remedies were available to Salmon, the
district court correctly dismissed his intentional infliction claim.
III. Conclusion
To summarize, we conclude as follows:
1. While the law in this circuit holds that an order to depart a public place
that allows a person to go anywhere else he wishes does not, without more,
effect a Fourth Amendment seizure, see Sheppard v. Beerman, 18 F.3d at 153,
where, as here, a plaintiff alleges that the ordering official used physical force
intentionally to restrain plaintiff and control his movements, the officer’s conduct
may or may not be reasonable, but the Fourth Amendment claim cannot be
dismissed for failure plausibly to plead seizure.
18
14‐1993‐cv
Salmon v. Blesser
2. Plaintiff’s First Amendment claim was correctly dismissed because he
has not alleged either his engagement in expressive conduct or any impairment
of his access to judicial records.
3. Plaintiff’s intentional infliction of emotional distress claim was correctly
dismissed because defendant Blesser’s alleged conduct falls well within the
ambit of a traditional battery claim.
Accordingly, the judgment of dismissal is VACATED as to Salmon’s
Fourth Amendment claim and AFFIRMED in all other respects, and the case is
REMANDED for further proceedings consistent with this opinion.
19 | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2439554/ | 268 S.W.2d 122 (1954)
ASSOCIATED INDEMNITY CORP.
v.
KUJAWA.
No. A-4287.
Supreme Court of Texas.
May 26, 1954.
Fulbright, Crooker, Freeman & Bates, Kraft W. Eidman and Quentin Bates, Houston, for petitioner.
Peter P. Cheswick, Houston, for respondent.
SMITH, Justice.
This is a workmen's compensation suit. The trial court granted petitioner's motion for judgment non obstante veredicto. The Court of Civil Appeals has reversed the judgment of the trial court and rendered judgment for the respondent. 258 S.W.2d 344.
We have reached the conclusion that this case must be reversed and remanded to the trial court for a new trial. The trial court, preliminary to the introduction of evidence and the submission of special issues to the jury for its determination, sustained certain special exceptions to respondent's pleadings. The effect of the ruling of the trial court on the special exceptions was to deprive the respondent of the right to plead and prove material allegations of his cause of action. We shall discuss this matter later in this opinion.
The cause of action remaining after the action of the court in sustaining petitioner's special exceptions was submitted to the jury. The answers returned into court by the jury were all favorable to the respondent. Petitioner urged in the trial court its motion for judgment notwithstanding the verdict of the jury. Petitioner's contention in the trial court and by point of error in this Court that there was no evidence to support the findings of the jury to the issues submitted is sustained. This conclusion has been reached without regard to the question of the necessity of medical evidence. The Court of Civil Appeals committed error in rendering judgment for respondent.
We revert to the action of the trial court in sustaining petitioner's special exceptions. The respondent assigned such action as error in the Court of Civil Appeals. We are of the opinion that, even though we have held adversely to respondent on the question of "no evidence" as to the issues submitted, he is entitled to a new trial.
The effect of the trial court's ruling on the special exceptions was to confine respondent's *123 pleadings to the nature of the injury as stated in the notice and claim filed with the Industrial Accident Board. The injury alleged in the notice and claim before the Board was a "general injury". The ruling of the trial court prohibited respondent from enlarging the claim so as to include all injuries proximately resulting from the accident. This was error and the Court of Civil Appeals so held. As said in the case of Booth v. Texas Employers' Ins. Ass'n, 132 Tex. 237, 123 S.W.2d 322, 329: "It has repeatedly been held that, although one claim cannot be filed with the board and another and different claim asserted in court, yet when the injury suffered is of that class of injuries, sometimes called general injuries, for which the compensation is based upon incapacity to work, and not of that class of injuries usually called specific injuries, for which the amount of compensation is fixed by the statute, a general description of the injury is sufficient in the claim made before the board, and that in the suit filed to set aside the award of the board the claim may be enlarged to include all injuries proximately resulting from the accident". See Hartford Accident & Insurance Co. v. Choate, 126 Tex. 368, 373, 89 S.W.2d 205; Texas Employers' Ins. Ass'n v. Bradshaw, Tex.Civ.App., 27 S.W.2d 314, writ refused.
Furthermore, the petitioner did not complain in its motion for rehearing of the action of the Court of Civil Appeals in holding the trial court committed error in sustaining its special exception to respondent's pleadings. No point is presented to this Court questioning such holding. Petitioner does contend that the Court of Civil Appeals was without authority to reverse and render judgment in favor of respondent. The cause should have been reversed and remanded to the trial court to permit the respondent to plead his cause of action in accordance with the rule announced in Booth v. Texas Employers' Ins. Ass'n, supra. The rights of the parties and the issues involved shall be determined in the first instance by the trial court and not the appellate court.
The burden rests upon the party claiming compensation to prove that he sustained an injury as defined by statute. See Article 8309, Sec. 5, Vernon's Annotated Civil Statutes of Texas. The action of the trial court in sustaining petitioner's special exceptions to the pleadings rendered it probable that respondent was prevented from fully developing the issues raised by the excluded allegations contained in the petition. From what has been stated, the judgments of the trial court and the Court of Civil Appeals are reversed and the cause is remanded to the trial court.
In view of a retrial, we deem it necessary to discuss petitioner's Points Eight, Nine and Ten. These points present the contention that the beginning date of respondent's incapacity was not conclusively established by the evidence, and therefore, the trial court erred in failing to submit a special issue to the jury to determine such fact. We do not reverse the cause on these points for the reason that petitioner failed to point out distinctly by proper objection to the court's charge the error, and failed to state its grounds of objection in the manner required by Rule 274, Texas Rules of Civil Procedure. In the event of another trial, and, unless the evidence is undisputed as to the date respondent's incapacity began, the trial court should properly submit the issue to the jury for its determination. Traders & General Insurance Co. v. Watson, Tex.Civ.App., 131 S.W.2d 1103, writ dismissed; Texas Employers' Ins. Ass'n v. Guidry, 128 Tex. 433, 99 S.W.2d 900; Jones v. Texas Employers' Ins. Ass'n, 128 Tex. 437, 99 S.W.2d 903.
Petitioner by its Eleventh Point contends that the issue as to the average weekly wage of respondent was improperly submitted to the jury. We do not pass on the question presented. However, upon another trial and in the event the issue is raised by the evidence, the trial court should be governed by the provisions of Article 8309, Revised Civil Statutes and amendments thereto, and especially subsections 1, 2 and 3 of Section 1, Vernon's Annotated *124 Civil Statutes, Article 8309, as amended. Also see American Employers' Insurance Company v. Singleton, Tex.Com.App., 24 S.W.2d 26; Texas Employers' Ins. Association v. Locke, Tex.Civ.App., 224 S.W.2d 755, writ refused, n. r. e.
Petitioner's Points One and Two, and Four to Seven present the contention that the rule with reference to the necessity for medical evidence, as established in the case of Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R. 2d 1, is applicable to the case here. Since this cause has been reversed and remanded to permit the presentation of new pleadings we deem it unnecessary to discuss these points.
The judgments of the trial court and the Court of Civil Appeals are reversed and the cause is remanded to the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2439592/ | 967 N.E.2d 503 (2008)
382 Ill. App. 3d 1225
359 Ill. Dec. 773
IN RE G.S.
No. 4-08-0209.
Appellate Court of Illinois, Fourth District.
July 25, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440592/ | 242 F. Supp. 2d 478 (2003)
Darryl LITTLE, Petitioner,
v.
UNITED STATES of America, Respondent.
No. CR. 91-80179.
United States District Court, E.D. Michigan, Southern Division.
January 23, 2003.
*479 Darryl Little, In Pro Per, Federal Correctional Institution, Milan, MI, for plaintiff.
Jennifer Peregord, Assistant U.S. Attorney, Detroit, MI, for defendant.
MEMORANDUM OPINION AND ORDER of DISMISSAL
ANNA DIGGS TAYLOR, District Judge.
I.
Petitioner, Darryl Little ("Little"), has filed a motion pursuant to 18 U.S.C. § 3582(c) requesting that (1) Sentencing Guideline Amendment 599 ("Amendment 599") be applied retroactively and (2) that, in accord with amended § 2K2.4 of the United States Sentencing Guidelines *480 ("USSG"),[1] such application result in a reduction of his sentence from 360 months to 324 months. For the reasons stated below, Petitioner's motion must be DENIED and this matter DISMISSED.
Little was convicted of conspiracy, drug distribution, and weapons charges following trial in 1992. His convictions were affirmed by the Sixth Circuit on direct appeal. See United States v. Lloyd, et al, 10 F.3d 1197 (6th Cir.1993), cert, denied 511 U.S. 1043, 114 S. Ct. 1569, 128 L. Ed. 2d 213 (1994). In 1994, Little's sentence was vacated due to a computation error; his sentence upon remand was, on whole, unchanged.
In August of 1996, Little filed a § 2255 motion alleging ineffective assistance of counsel and seeking vacation of his two § 924(c) convictions in light of Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995). His petition was granted in part with respect to the § 924(c) counts, and both of those convictions (Counts 4 and 7) were ultimately vacated. Subsequently, in January of 1998, Little was resentenced to a term of imprisonment totaling 360 months (a 300 month reduction from his original sentence). The January 1998 sentence was calculated under 21 U.S.C. §§ 846, 845, & 841, and 18 U.S.C. § 922(g). A two-point enhancement was added to his underlying drug offense pursuant to USSG § 2Dl.l(b)(1). Little appealed from this resentencing, and his appeal was denied in all respects in an unpublished opinion issued on May 24,1999.
The first issue raised by the instant motion is whether Amendment 599 can be applied retroactively. The second issue is whether such an application, if possible, could be applied under Little's circumstances. While the first query is answered in the affirmative, the latter is not. Therefore, the retroactive application of Amendment 599 is beyond the reach of the Petitioner.
II.
Section 3582(c)(2) allows the court to reduce a term of imprisonment if the defendant's sentence was based on a sentencing range that has subsequently been lowered by the Sentencing Commission and if a reduction would be consistent with the applicable policy statements in the guidelines. See 18 U.S.C. § 3582(c)(2); United States v. Rodriguez-Diaz, 19 F.3d 1340, 1341 (11th Cir.1994). Amendments to the guidelines which retroactively lower sentencing ranges and which thus permit a defendant to seek relief under § 3582(c) are listed at USSG § 1B1.10. Amendment 599 is one such amendment given retroactive effect under § 1B1.10, and thus a defendant may seek relief under § 3582(c)(2) pursuant to that amendment. United States v. Diaz, 248 F.3d 1065, 1107-08 (11th Cir.2001); United States v. Aquino, 242 F.3d 859, 865 (9th Cir.), cert, denied, 533 U.S. 963, 121 S. Ct. 2622, 150 L. Ed. 2d 775 (2001).
The Purpose of Amendment 599
Amendment 599 explains that, in order to avoid double-counting, an enhancement that might seem to be appropriate under § 2K2.1(b) could be inappropriate for a sentence under § 2K2.4. The rationale is that the conduct that triggered the § 2K2.1(b) enhancement is related to the conduct that forms the basis for the 18 U.S.C. § 924(c) conviction. United States v. Friend, 303 F.3d 921, 922 (8th Cir.2002). For sentencing purposes, that conduct should not be counted twice. Id.
*481 In explaining this principle, Amendment 599 offers an example in which the Guidelines do not permit doublecounting of conduct involving weapons: "For example, if in addition to a conviction for an underlying offense of armed bank robbery, the defendant was convicted of being a felon in possession under 18 U.S.C. § 922(g), the enhancement under § 2K2.1(b)(5) would not apply." USSG Manual, Supp. to App. C at 71. An armed robbery conviction would be subject to USSG § 2B3.1, which contains enhancements for weapons, so applying § 2K2.1(b)(5) would be double-counting. Friend, 303 F.3d at 922. The use of 18 U.S.C. § 922(g) in the above example may have been a source of confusion in Little's motion; nonetheless, as further illuminated by the brief discussion below, it is clear that Amendment 599 does not apply to § 922(g).
The Scope and Impact of Amendment 599
Amendment 599 provides for certain changes to the commentary to USSG § 2K2.4, which impacts the sentence of a defendant who is convicted under 18 U.S.C. §§ 844(h), 924(c), or 929(a). Yet, "Amendment 599 did not materially change the relevant language of § 2K2.4's application note two." United States v. White, 305 F.3d 1264, 1267 (11th Cir.2002). Rather, Amendment 599, which amends Note 2 of the Application Notes to the Commentary to § 2K2.4, attempts "to clarify under what circumstances [a] defendant's sentence for violations of 18 U.S.C. § 924(c) in conjunction with convictions for other offenses may receive weapons enhancements... for those other offenses." USSG Manual, Supp. to App. C at 71 (2001); see also Friend, 303 F.3d at 922. This language makes clear that Amendment 599 applies only to sentences imposed for violations of 18 U.S.C. §§ 844(h), 924(c), or 929(a). See United States v. Diaz, 248 F.3d 1065, 1106-07 (11th Cir. 2001) ("The first sentence of the new application note reinforces what courts have always knownwhen a defendant is convicted of a § 924(c) violation and an underlying offense, the defendant's possession of a weapon cannot be used to enhance the level of the underlying offense."); Velasquez v. United States, 161 F. Supp. 2d 60, 62 (D.R.I.2001) (holding Amendment 599 irrelevant because defendant's § 924(c) violation vacated).
Application of Amendment 599 to the Present Circumstances
Although the Tenth Circuit Court of Appeals' decision in United States v. Abreu, 33 Fed. Appx. 399, 400 (10th Cir. 2002) (unpublished disposition), is not binding on this court, its reasoning is treated as learned authority. In Abreu, the defendant's § 924(c) convictions were vacated before he was resentenced. 33 Fed. Appx. at 400. His new sentence was based solely on his violations of 21 U.S.C. §§ 841 and 846, and 18 U.S.C. § 3146(a)(1). Thus, the three convictions for which the defendant was resentenced did not implicate 18 U.S.C. §§ 844(h), 924(c), or 929(a). Additionally, USSG § 2K2.4 was not used to determine his sentencing range. Rather, the two-level increase to the defendant's base offense level was imposed pursuant to USSG § 2D1.1; Id. at 4.
In the present case, both of Little's § 924(c) convictions have been vacated. Furthermore, his resentencing was calculated under 21 U.S.C. §§ 846, 845, & 841, and 18 U.S.C. § 922(g). It is clear that Amendment 599 does not apply to convictions obtained under 18 U.S.C. § 922(g), 21 U.S.C. §§ 841, 846, or 845. Moreover, as in Abreu, USSG § 2K2.4 is not implicated. Instead, a two-point enhancement was added to the underlying drug offense pursuant to USSG § 2D1.1(b)(1). Accordingly *482 the Petitioner's Motion to modify his sentence under 18 U.S.C. § 3582 must be DENIED and this matter is DISMISSED.
For the foregoing reasons,
IT IS ORDERED that the Petitioner's Motion to modify his sentence under 18 U.S.C. § 3582 be DENIED and this matter is DISMISSED.
IT IS SO ORDERED.
NOTES
[1] The Sentencing Commission amended USSG § 2K2.4, effective November 1, 2000. The Commission instructed that the relevant amendment, numbered 599, be applied retroactively. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2465335/ | 401 S.W.2d 118 (1966)
Jack HENRY, Appellant,
v.
Clyde RENO et al., Appellees.
No. 4032.
Court of Civil Appeals of Texas, Eastland.
March 18, 1966.
Rehearing Denied April 8, 1966.
Mike R. Mason, Odessa, for appellant.
G. Bert Smith, Jr., Andrews, for appellees.
GRISSOM, Chief Justice.
Jack Henry sued Clyde Reno and Max E. Ramsey in Mitchell County. Reno is a nonresident of Texas. He was served with citation in Arkansas in accord with the provisions of Texas R.C.P. 108. Henry sought to recover $11,500.00 by virtue of his contract to sell Reno a one-half interest in a fishing camp in Mitchell County for $11,500.00 in cash. Henry alleged that said contract provided that Reno should pay him $11,500.00 in cash within ten days after termination of his suit against Union Oil Company and that Reno had executed a written assignment to him of $11,500.00 out of his said cause of action. Henry alleged that Reno had settled with Union and that *119 $11,500.00 had been placed in escrow with Reno's lawyer, Ramsey, who was holding it pending consummation of the contract sued on. Henry alleged that when he learned of Reno's settlement and of the placing of $11,500.00 in escrow with Ramsey he executed a bill of sale and an assignment of a one-half interest in said fishing camp and tendered them to Reno in accord with said contract, but Reno had refused to pay him said sum. Henry alleged that $11,500.00 was being held by Ramsey in Andrews County and that Ramsey should be ordered to pay it to him upon delivery of said bill of sale and assignment, which he tendered into court. He also sought interest and attorneys' fees.
Reno filed a plea to the jurisdiction. The court sustained it and dismissed Henry's cause of action against Reno. Ramsey filed a plea of privilege to be sued in Andrews County, where he resides. Upon a hearing, Ramsey's plea was sustained and the case against him was transferred to Andrews County. Henry has appealed.
Appellant contends, first, that the court erred in sustaining Reno's plea to the jurisdiction and in dismissing the case against Reno because Henry's cause of action was in rem and that a citation in accord with Texas R.C.P. 108 was served on Reno and brought him within the court's jurisdiction so that judgment could be rendered against him to the extent of the $11,500.00 held by Ramsey. Appellant also says the court erred in sustaining Ramsey's plea of privilege because his cause of action was maintainable in Mitchell County against Reno under exception 5, Article 1995, Vernon's Ann.Civ.St., because said written contract provided that it should be performed in Mitchell County and the case against Ramsey was maintainable there under exception 29, because Ramsey was a necessary party to his suit against Reno. Appellant says that Article 1975 provides that a person claiming a right to or interest in property in Texas may maintain such an action as this against a nonresident who claims an adverse interest therein for the purpose of determining such interest and adjudicating the title thereto, and that Texas R.C.P. 810 provides that such a proceeding shall be had as may be necessary to fully settle and determine the right to or title in such property and to decree same to the party entitled thereto and, therefore, the court should have rendered such a judgment; that Article 1976 provides that a suit authorized by Article 1975 may be maintained by any person, regardless of whether he is in actual possession of such property, and that service on such a defendant may be had under Rule 108. Henry contends that said statutes and rules authorize him to maintain the suit to determine his interest in and title to said fund of $11,500.00. As authority therefor, appellant relies principally upon Mutual Home Ass'n v. Zwatchka, Tex.Civ. App., 297 S.W. 317. He says that under its holding the court acquired jurisdiction to render a judgment in rem subjecting said $11,500.00 to payment of his debt under the contract.
Appellee contends, and we think correctly, that appellant's suit is to enforce a contract expressly performable in Mitchell County; that appellant's asserted cause of action is in personam and that citation under Rule 108 did not bring Reno before the court so that a personal judgment could be rendered against him. Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565. The contract sued upon does specify the amount and when Reno shall pay $11,500.00 to Henry but it does not provide from what fund or source it shall be paid, merely that ten days after termination of the case Reno shall pay Henry $11,500.00 in cash. The contract sued on does not require payment of the proceeds of the lawsuit to Henry. It provides that Reno shall pay $11,500.00 within ten days after settlement of the lawsuit but it did not specify that it shall be paid out of the money he obtains therefrom. We conclude that Reno's obligation under the contract sued upon was personal and that no specific res was brought within the jurisdiction of the court. Ramsey does not hold the $11,500.00 in escrow pursuant to *120 the contract to sell realty in Mitchell County. He holds said $11,500.00 by virtue of an assignment of that amount from Reno's prospective recovery in a damage suit then pending in Gaines County. The funds were held in Andrews county. There was no specific fund or res before the court in Mitchell County because the funds held by Ramsey were held by virtue of such assignment of an interest in said lawsuit and there was no certain fund or res required to be delivered to Henry under the contract. It provided merely for payment of $11,500.00 in cash, not for payment from any particular fund, source or thing. Judgment against Reno enforcing said contract would have been personal in nature. No specific property of Reno was brought under the jurisdiction of the court to satisfy his obligations under this contract. The contract sued upon does not provide for payment of this $11,500.00 from the fund held by Ramsey or even from the proceeds of the lawsuit. The applicable general rule is stated in 50 C.J.S. Judgments § 908, at page 548, as follows:
"In general, jurisdiction to render a judgment in rem rests upon the seizure or attachment of the property affected or the court's dominion or authority over the status in controversy. It is essential that the res be within the jurisdiction of the court at the time of the commencement of the action, that some process of the court shall have been served on it; and that it shall have been brought within the direct control of the court by some kind of seizure or similar act under authority of law, actual or constructive, prior to the rendition of the judgment."
We conclude that the court did not err in sustaining the plea to the jurisdiction and in dismissing the case as to Reno. Knox v. Quinn, Tex.Civ.App., 164 S.W.2d 580; Roumel v. Drill Well Oil Company, 5 Cir., 270 F.2d 550; Pulitzer Publishing Company v. Current News Features, 8 Cir., 94 F.2d 682; 49 C.J.S. Judgments § 12, p. 40; United States of America v. First National City Bank, 2 Cir., 321 F.2d 14, 19. In Mutual Home Ass'n v. Zwatchka, 297 S.W. 317, relied upon by appellant, the money in controversy was deposited in court thereby giving it jurisdiction to render a judgment for the money. The court did not have jurisdiction to render a personal judgment against Reno. There was no res before the court which could be subjected to enforcement of the contract sued on. The suit was not maintainable in Mitchell County against Reno under exception 5, Article 1995, and, therefore, it could not be maintained against Ramsey under exception 29a. The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2439718/ | 214 F. Supp. 2d 559 (2001)
Wieh George KUN, Plaintiff,
v.
BERKELEY COUNTY GOVERNMENT, Defendant.
C/A No. 2:00-0790-18RB.
United States District Court, D. South Carolina, Charleston Division.
September 27, 2001.
*560 *561 Wieh George Kun, Moncks Corner, SC, pro se.
Harold Williams Funderburk, Jr., SC Employment Security Commission, Columbia, SC, for South Carolina Employment Security Commission.
Wilbur Eugene Johnson, Charleston, SC, Doyle Mark Stokes, N Charleston, SC, for Berkeley County Government.
ORDER
NORTON, District Judge.
This matter is before the court on the magistrate judge's recommendation that defendant's Motion for Summary Judgment be granted. This record includes a Report and Recommendation of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1)(B).
I. Time for Filing Objections
A party may object, in writing, to a magistrate judge's report within ten days after being served with a copy of that report. See 28 U.S.C. § 636(b)(1)(C) (1994). Three days are added to the ten day period if the Report and Recommendation is mailed rather than personally served. See Fed.R.Civ.P. 6(e). The magistrate judge filed his Report and Recommendation on July 13, 2001. Plaintiff filed his written objections on August 3, 2001.
II. Review of Magistrate Judge's Report
This court is charged with conducting a de novo review of any portion of the magistrate judge's Report and Recommendation to which a specific objection is registered and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. See 28 U.S.C. § 636(b)(1)(C) (1994). A party's failure to object is accepted as agreement with the conclusions of the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). This court is not required to review, under a de novo standard, or any other standard, the factual findings and legal conclusions of the magistrate judge to which the parties have not objected. See id. at 149-50, 106 S. Ct. 466. A party's general objections are not sufficient to challenge a magistrate judge's findings. See Howard v. Secretary of Health & Human Servs., 932 F.2d 505, 508-09 (6th Cir.1991). The recommendation of the magistrate judge carries no presumptive weight, and the responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270, 96 S. Ct. 549, 46 L. Ed. 2d 483 (1976).
III. Summary Judgment Standard
Summary judgment should be granted when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." *562 Fed.R.Civ.P. 56(c). The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). If the moving party carries its burden of showing that there is an absence of evidence to support a claim, then the non-moving party must demonstrate by affidavit, depositions, answers to interrogatories, and admissions on file that there is a genuine issue of material fact for trial. See Celotex Corp., 477 U.S. at 324-25, 106 S. Ct. 2548. An issue of fact is "genuine" when the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). An issue of fact is "material" only if establishment of the fact might affect the outcome of the lawsuit under the governing substantive law. See id. When determining whether there is an issue for trial, the court must view the inferences to be drawn from the underlying facts in the light most favorable to the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962); Moore v. Winebrenner, 927 F.2d 1312, 1313 (4th Cir. 1991).
IV. Plaintiff's Objections
In his Complaint, plaintiff alleged discrimination, retaliation, harassment, and wrongful termination, all in violation of Title VII. The magistrate judge found that plaintiff had not established a prima facie case for any of his claims. In his Objections, plaintiff argues that he did establish a prima facie case for all of his claims and that he further showed that defendant's legitimate, non-discriminatory reasons are pretexts for discrimination. Each of plaintiff's objections will be addressed in turn.
A. Discrimination on the Basis of Race and Sex
1. Vacation Days
Plaintiff first argues that he did establish a prima facie case of discrimination based on race and sex because, contrary to the magistrate judge's finding, he was not granted all of the vacation days that he initially requested. (Plaintiff's Objections at 2). According to plaintiff, his failure to receive all of the vacation days initially requested indicates discrimination.
The record shows that on October 2, 1998, plaintiff requested annual leave for December 22, 23, and 28, 1998. His leave request was approved by his supervisors. (Plaintiff's Memo. in Opp. to S.J. Exhibit A). However, plaintiff's leave request form was later voided and a note was written on the form stating that plaintiff should resubmit his request. (Plaintiff's Memo. in Opp. to S.J. Exhibit A). On October 7, 1998, Carole Grant, plaintiff's immediate supervisor, sent a memorandum to her employees in which she explained defendant's holiday leave requirements.[1] (Defendant's Memo. in Supp. of S.J. Exhibit 3). Pursuant to the leave policy, the employees were paired together and only one member of each pair could take leave at a time. (Defendant's Memo. in Supp. of S.J. Exhibit 3 at 1). Each employee was required to check with his or her partner *563 before requesting leave. Further, an employee could request leave either immediately before or after a holiday, but not both times. (Defendant's Memo. in Supp. of S.J. Exhibit 3 at 2). Finally, the memorandum established how conflicts between employees' schedules would be handled.
Looking at the facts in the light most favorable to plaintiff, it is undisputed that plaintiff's first leave request did not conform to defendant's leave policy. Plaintiff did not consult with Roberta Melton, the employee he was paired with, concerning her holiday leave, and he requested leave dates both before and after Christmas. (Plaintiff's Memo. in Opp. to S.J. Exhibit A). Plaintiff was asked to resubmit his leave request, and on October 29, 1998, he was granted leave for December 22 and 23, 1998. (Plaintiff's Memo. in Opp. to S.J. Exhibit A). In his Objections, plaintiff claimed that he was required to work on December 28, 1998, but was locked out of the building. (Plaintiff's Objections at 2). However, in his summary judgment memorandum, plaintiff admitted that December 28, 1998, was added as a county-wide holiday, and, although he did not have advance notice of the holiday, he was not required to work that day. (Plaintiff's Memo. in Opp. to S.J. at 22-23).
Looking at all of the evidence, plaintiff has not established that he was treated any differently than other employees with regard to obtaining annual leave. Although plaintiff claims that he was treated differently from Ms. Melton, he did not introduce evidence that Ms. Melton asked for and received holiday leave that conflicted with the leave guidelines set forth in Ms. Grant's memorandum. Further, because of the county holiday on December 28, plaintiff, in fact, received all of the leave days that he originally requested. At most, plaintiff seems unhappy that he was required to resubmit his request form and that he was required to work together with another employee in scheduling his leave. However, plaintiff's evidence is not sufficient to establish a prima facie case of discrimination.[2]
2. Sign-In/Out Board
Plaintiff also claims that the magistrate judge erred in concluding that he was not treated differently from other employees with regard to the use of the sign-in board. (Plaintiff's Objections at 12-13). However, because plaintiff has failed to show that defendant's requirement that he use the sign-in board was an adverse employment action, he has failed to establish a prima facie case of discrimination under Title VII.
Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin...." 42 U.S.C.A. § 2000e-2(a)(1) (West 2001). Based on this language, the Fourth Circuit has found that a person claiming discrimination under Title VII must show that he *564 or she suffered an adverse employment action. See Boone v. Goldin, 178 F.3d 253, 256 (4th Cir.1999). The court noted that it was certain "that Congress did not intend Title VII to provide redress for trivial discomforts endemic to employment...." Id.; see also Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir.2001).
In this case, plaintiff has failed to show that the terms, conditions, or benefits of his employment were affected by the requirement that he use a sign-in board to inform his supervisors of his whereabouts during the work day. Plaintiff has not alleged that, as a result of this requirement, he received less pay or fewer benefits or even that the requirement was especially onerous or humiliating. Further, plaintiff has not shown that he was subject to discipline when and if he failed to use the board. While plaintiff may have believed that use of the sign-in board was unnecessary or a hassle, he has not shown it to be an adverse employment action and has therefore not established a claim under Title VII.
Moreover, as the magistrate judge found, plaintiff has also failed to show that he was treated differently than other employees with regard to using the sign-in board. In his Objections, plaintiff stated that other employees in his department did not have their names on the board and were not required to sign in and out. (Plaintiff's Objections at 3). However, in his deposition, plaintiff admitted that other employees, apparently all of the computer programmers, had their names on the board. (Defendant's Memo. in Supp. of S.J. Exhibit 4 at 81, line 7-23; Plaintiff's Objections Exhibit A). Further, although plaintiff stated that he had never observed any of the other employees using the board, he admitted that he did not know whether other employees were told that they did not need to use the board. (Defendant's Memo. in Supp. of S.J. Exhibit 4 at 82, 84). At most, plaintiff has shown that other employees may not have complied with the office policy of using the sign-in board; however, he has not presented any evidence that he was the only employee required to use the sign-in board. As a result, plaintiff has failed to establish a prima facie case of discrimination because he has failed to show that he was treated differently than other similarly situated employees.
B. Retaliation
Plaintiff also claims that the magistrate judge erred in finding that he had not engaged in protected activity and therefore had not established a prima facie case of retaliation. In order to establish a prima facie case of retaliation, plaintiff must show (1) that he engaged in protected activity under Title VII; (2) that the employer thereafter took adverse employment action against him; and (3) a sufficient causal connection existed between his protected activity and the employer's adverse action. See Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 754 (4th Cir.1996). Protected activity includes opposition to any practice made an unlawful employment practice under Title VII. See 42 U.S.C.A. § 2000e-3(a) (West 2001).
Looking at the evidence in the light most favorable to plaintiff, he did complain of alleged discrimination in the workplace. Marie Wauben, the Director of Human Resources, stated that plaintiff had alleged discrimination several times during meetings she had with him.[3] (Defendant's Memo. in Supp. of S.J. Exhibit 7 at 2). Although it is unclear from the record *565 exactly when plaintiff made these allegations of discrimination, the last meeting between Ms. Wauben and plaintiff took place on January 12, 1999. (Defendant's Memo. in Supp. of S.J. Exhibit 7 at 2). By making these complaints to a supervisor, plaintiff engaged in protected activity. Further, the record indicates that subsequent to these complaints, on March 23, 1999, Ms. Grant took two disciplinary actions against plaintiff.[4] (Plaintiff's Memo. in Opp. to S.J. Exhibit O, 11). Plaintiff argues that because the disciplinary actions came after the discrimination complaints, he has shown a causal connection between the protected activity and the adverse employment actions.[5] (Plaintiff's Objections at 13-14). Aside from the temporal proximity, plaintiff has not offered any other evidence that the disciplinary actions were taken as a result of his complaints.
The Fourth Circuit has found that temporal proximity between protected activity and an adverse employment action is sufficient evidence to establish a causal connection between the protected action and the adverse employment action. See Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir.1989); see also Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 443 (4th Cir.1998) (finding that "[n]ormally, very little evidence of a causal connection is required to establish a prima facie case"). In Williams, the plaintiff argued that she was retaliated against in violation of Title VII when she was fired almost four months after she filed a discrimination claim with the state agency. See 871 F.2d at 454-55. The Fourth Circuit found that plaintiff had established a causal connection and had therefore established a prima facie case of discrimination. In this case, in the light most favorable to him, plaintiff has shown that an adverse employment action was taken against him approximately two months after he claimed discrimination. This evidence is sufficient to establish a casual connection between the adverse employment action and the protected activity, and therefore he has established a prima facie case of retaliation.
However, plaintiff cannot prevail on his retaliation claim because defendant proffered legitimate, non-discriminatory reasons for its disciplinary actions and plaintiff has failed to show pretext. In Ms. Grant's first disciplinary memorandum, she stated that plaintiff had refused to prepare a written explanation of an incident that occurred between plaintiff and a co-worker. (Plaintiff's Memo. in Opp. to S.J. Exhibit O). Further, Ms. Grant wrote that plaintiff had refused to adequately answer her questions about the incident. (Plaintiff's Memo. in Opp. to S.J. Exhibit O). In the second disciplinary memorandum, Ms. Grant wrote that plaintiff had been instructed three times to refer any Internet questions to the technical staff. Ms. Grant noted that plaintiff had once again failed to comply with these instructions. (Plaintiff's Memo. in Opp. to S.J. Exhibit 11). She also stated that the memorandum written by plaintiff to Judge *566 Kirk was inappropriate. (Plaintiff's Memo. in Opp. to S.J. Exhibit 11).
Once the defendant has proffered legitimate, non-discriminatory reasons for its actions, the plaintiff may establish pretext by showing that the reasons are false. See Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 147, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). In this case, plaintiff may establish pretext by showing that Ms. Grant's reasons for disciplining him are false or not the true reasons for the disciplinary actions. However, plaintiff cannot establish pretext by simply contesting the merits of the disciplinary actions. See Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir.2000).
While plaintiff attempted to justify his behavior, he did not provide evidence that Ms. Grant actually thought that he had handled both situations appropriately. Plaintiff's deposition testimony indicated that plaintiff did not provide either a written or verbal explanation of the incident that took place in the coroner's office, as requested by Ms. Grant.[6] (Defendant's Memo. in Supp. of S.J. Exhibit 4 at 88). Further, plaintiff has not disputed the fact that he sent Judge Kirk a memorandum informing him that he would be unable to provide the judge with Internet training. (Plaintiff's Memo. in Opp. to S.J. Exhibit 9). The undisputed evidence is that Ms. Grant believed, whether rightly or wrongly, that plaintiff had failed to follow her directions on two separate occasions and therefore merited disciplinary action.
C. Hostile Work Environment
Plaintiff also claims that Ms. Grant's memorandum concerning visitors was harassment in response to his filing of a claim with the South Carolina Human Affairs Commission ("SCHAC"). Plaintiff claims that the magistrate judge erred in failing to consider his many reasons for requesting that the switchboard contact him when he had visitors instead of letting them go directly to his office.[7] (Plaintiff's Objections at 9). To establish a claim for a hostile work environment, plaintiff must show (1) unwelcome conduct; (2) based on plaintiff's race or gender; (3) sufficiently pervasive or severe to alter the conditions of employment and to create a hostile work environment; and (4) some basis for imputing liability to the employer. See Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 266 (4th Cir.2001).
*567 While stating many reasons why he thought he should be contacted when he had visitors, plaintiff has not provided any evidence that defendant's policy concerning visitors was applied only to him because of his race or gender. The Fourth Circuit has consistently found that courts do "not sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination...." DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir.1998) (quoting Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir.1997)). As such, this court is not charged with determining whether defendant had reasonable policies or whether plaintiff had good reasons for asking the switchboard to call him when he had visitors. See id. This court must simply determine whether Ms. Grant's actions were harassment based on plaintiff's race or sex. Without evidence that he was treated differently than other employees with regard to the visitor policy, plaintiff cannot establish a prima facie case of a hostile work environment.
Further, even in the light most favorable to plaintiff, he cannot show harassment severe or pervasive enough to establish a hostile work environment. The Supreme Court has found that "[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment an environment that a reasonable person would find hostile or abusive is beyond Title VII's purview." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993). The Fourth Circuit has found that in determining whether harassment is "sufficiently severe or pervasive to bring it within Title VII's purview, [the court] must examine the totality of the circumstances, including `[t]he frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Hopkins v. Baltimore Gas and Elec. Co., 77 F.3d 745, 753 (4th Cir.1996) (quoting Harris, 510 U.S. at 23, 114 S. Ct. 367).
In this case, even if plaintiff could show that the visitor policy was applied to him because of his race or sex, defendant's conduct simply does not rise to the level of actionable harassment. In his deposition, plaintiff noted that he did not receive frequent visitors. (Defendant's Memo. in Supp. of S.J. Exhibit 4 at 115). Therefore, defendant's policy on personal visits would not have much of an affect on plaintiff's day to day working environment. Further, the only evidence of this "harassment" is one memorandum written by Ms. Grant. In this memorandum, all that Ms. Grant requested from plaintiff was that (1) he not make inappropriate requests to the switchboard personnel; (2) that his guests not be intoxicated; and (3) that he limit the number of guests that visit him while he is at work. (Plaintiff's Memo. in Opp. to S.J. Exhibit X). This is simply not the type of severe or widespread harassment that disrupts an employee's working environment and creates an objectively hostile work environment. Therefore, even in the light most favorable to plaintiff, he has failed to establish a prima facie case of harassment because he has failed to show (1) any unwanted conduct based on plaintiff's race or sex or (2) harassment severe or pervasive enough to affect the terms, conditions, or privileges of employment.
D. Wrongful Termination
Finally, plaintiff claims that the magistrate judge erred in concluding that he had not engaged in protected activity and therefore had not established a claim for retaliatory discharge. In his summary judgment memorandum, plaintiff stated *568 that he had been fired because he had been arrested and also because he had received two disciplinary actions. (Plaintiff's Memo. in Opp. to S.J. at 5, 7-8). As noted above, plaintiff has not established that the disciplinary actions were taken in retaliation for plaintiff's allegations of discrimination. Therefore, even if the disciplinary actions were a basis for plaintiff's termination, plaintiff has not shown discrimination. Further, as the magistrate judge noted, because an arrest is not protected activity under Title VII, plaintiff has not established a prima facie case of retaliatory termination.
In his Objections, plaintiff alleges for the first time that he was terminated because he filed a complaint with the SCHAC alleging retaliation and discrimination. (Plaintiff's Objections at 16). However, plaintiff did not make this allegation in either his Complaint or summary judgment memorandum, and he may not change his allegations throughout the proceedings in order to survive summary judgment.[8]
V. Conclusion
For the reasons stated above and those stated by the magistrate judge, it is therefore, ORDERED that defendant's Motion for Summary Judgment be GRANTED.
AND IT IS SO ORDERED.
NOTES
[1] In the memorandum, Ms. Grant noted that she would be applying the same leave policy used in previous years. (Defendant's Memo. in Supp. of S.J. Exhibit 3 at 1). Although plaintiff claimed that he had been unaware of defendant's leave policy before the memorandum was sent out, he has not presented any evidence that the memorandum did not accurately reflect defendant's policy.
[2] Plaintiff claims that defendant's statements in its summary judgment memorandum left many questions unanswered such as how much time passed before Ms. Grant realized that she had made a mistake in signing his first leave request form, on what date did she inform plaintiff that he needed to resubmit his request, and why had defendant not issued the leave policy earlier. (Plaintiff's Objections at 5). While the record does not set forth the exact dates of each event, the record is clear that some time between October 2, 1998, and October 29, 1998, plaintiff was informed of defendant's leave policy, that he was asked to resubmit his leave request, that he did, in fact, do so, and that he was granted holiday leave. Knowledge of the exact date that each event occurred would not add additional support to plaintiff's discrimination claim.
[3] The record is clear, however, that plaintiff's written complaint against Ms. Grant did not allege discrimination. (Defendant's Memo. in Supp. of S.J. Exhibit 4 at 105).
[4] The record is not clear whether Ms. Grant knew of the verbal complaints of discrimination. However, the record does indicate that Ms. Grant attended the January 12, 1999, meeting with Ms. Wauben and plaintiff. (Defendant's Memo. in Supp. of S.J. Exhibit 7 at 2). Therefore, in the light most favorable to plaintiff, Ms. Grant had knowledge of the complaints.
[5] In the light most favorable to plaintiff, these disciplinary actions were adverse employment actions because they were at least one reason for his termination. (Plaintiff's Memo. in Opp. to S.J. Exhibit H at 2).
[6] In his deposition and Objections, plaintiff claimed that he could not comply with Ms. Grant's request because he did not know what incident she was referring to. (Defendant's Memo. in Supp. of S.J. Exhibit 4 at 88; Plaintiff's Objections at 9). The record shows that Ms. Grant wrote plaintiff a memorandum immediately after the alleged incident between plaintiff and a co-worker. In that memorandum, Ms. Grant stated that she had been contacted at 10:40 that morning by the coroner and told that there had been an incident in his office between plaintiff and another employee. The other employee had been so upset that the coroner could not determine what plaintiff had said. (Plaintiff's Memo. in Opp. to S.J. Exhibit O). The undisputed evidence is that plaintiff knew when and where the alleged incident took place, which other employees were involved, and that plaintiff was accused of making an inappropriate comment to a co-worker. This information was sufficient to allow plaintiff to respond as requested by Ms. Grant.
[7] Plaintiff stated that the door to his department had a sign stating that only employees were allowed in that area. Further, in order to reach his work station, a visitor had to pass through a supervisor's office. Plaintiff stated that instead of having his visitor's wandering around the building looking for him, he preferred to have the switchboard simply contact him when a visitor arrived so he could go up front to meet his guest. (Plaintiff's Objections at 9-10).
[8] Further, even if plaintiff had made this allegation previously, defendant offered a legitimate, non-discriminatory reason for plaintiff's termination plaintiff's improper use of county equipment. (Plaintiff's Memo. in Opp. to S.J. Exhibit H). Plaintiff has attempted to explain why he should not have been terminated for using the county equipment for personal use. However, as noted above, this court does not sit as a judge of defendant's personnel decisions. The record indicates that plaintiff has had ample opportunity to contest his termination through county grievance procedures and through state court. (Plaintiff's Memo. in Opp. to S.J. Exhibit L, R). The only issue that this court must determine is whether the termination was a result of discrimination. Because plaintiff has not shown that defendant's legitimate, non-discriminatory reason was false or not the true reason for his termination, plaintiff has failed to show a retaliatory termination. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2439741/ | 214 F. Supp. 2d 348 (2002)
Ronald PURDY, Petitioner,
v.
Floyd G. BENNETT, Jr., Superintendent, Elmira Correctional Facility, Respondent.
No. 01 Civ.3636(LAP)(GWG).
United States District Court, S.D. New York.
July 31, 2002.
*349 Ronald F. Purdy, Elmira, NY, pro se.
Nisha M. Desai, Assistant District Attorney, Bronx, NY, for respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESKA, District Judge.
Petitioner Ronald Purdy ("Purdy") filed a Petition for a Writ of Habeas Corpus on April 30, 2001. On May 15, 2001, the case was referred to the Honorable Gabriel W. Gorenstein, United States Magistrate Judge. Judge Gorenstein ordered respondent Floyd G. Bennett, Jr. ("Bennett") to file an answer, other responsive pleading or a motion by July 16, 2001 a date subsequently extended until October 12, 2001.
On October 10, 2001, Nisha M. Desai, District Attorney, Bronx County, moved for an order on behalf of Bennett to dismiss Purdy's Petition pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to commence the proceeding within the period of limitations set forth in 28 U.S.C. § 2244(d)(1) and Ross v. Artuz, 150 F.3d 97 (2d Cir.1998). On November 14, 2001, Purdy filed a Traverse responding to the motion to dismiss. On January 31, 2001, Judge Gorenstein issued a Report and Recommendation (the "Report") dismissing Purdy's petition. On or about March 29, 2002, Purdy filed objections to the Report.
Having reviewed Judge Gorenstein's Report and Purdy's objections, I find the *350 objections to be without merit, and I find the Report to be well-reasoned and thoroughly grounded in the law. Accordingly, it is hereby
Ordered that the Report is adopted in its entirety, and petitioner's petition is dismissed.
The Clerk of the Court shall mark this action closed and all pending motions denied as moot.
SO ORDERED:
REPORT AND RECOMMENDATION
GORENSTEIN, United States Magistrate Judge.
Ronald Purdy, the pro se petitioner in this matter, is a prisoner at the Elmira Correctional Facility. Purdy has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent now moves to dismiss the petition as time barred pursuant to Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. § 2244(d)(1).
I. STATEMENT OF FACTS
On April 1, 1985, following a jury trial in New York State Supreme Court, Bronx County, a judgment was entered convicting Purdy of four counts of Robbery in the First Degree (N.Y. Penal Law § 160.15) and Possession of Marijuana (N.Y. Penal Law § 221.05). See Affidavit In Support of Motion to Dismiss Petition for Habeas Corpus, dated October 2001 ("Resp.Aff."), ¶ 3; Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus By A Person In State Custody, dated March 15, 2001 ("Habeas Petition") at 1. As a persistent violent felony offender, Purdy was sentenced to twenty-five years to life imprisonment. See Resp. Aff., ¶ 3; Habeas Petition at 1. Prior to sentencing, Purdy filed a petition for writ of habeas corpus under New York State law alleging that Purdy had suffered an unconstitutional arrest, had ineffective assistance of counsel, and was deprived of a fair trial. See Memorandum of Law in Support of Application for Writ of Habeas Corpus, dated March 7, 1985, reproduced as Resp. Aff., Ex. 1. This petition was dismissed. See Habeas Petition at 3; see also Resp. Aff., ¶ 4.
In his direct appeal to the Appellate Division, First Department, Purdy, through counsel, claimed that there had been a number of errors at trial, including improper admission of evidence, prejudicial comments by the prosecutor, an erroneous ruling by the trial judge allowing the prosecutor to inquire about Purdy's prior convictions, an erroneous sentence based on the conclusion that Purdy was a persistent violent felony offender, and an improper sentence due to the absence of a pretrial sentence report. He also claimed ineffective assistance of counsel. See Brief on Behalf of Appellant Ronald Purdy (undated), reproduced as Resp. Aff., Ex. 2. In a pro se supplemental brief, bearing a service date of April 18, 1986, Purdy argued that his guilt as to robbery was not proven beyond a reasonable doubt and that he was deprived of a fair trial and due process of law. See Appellant's Pro Se Supplemental Brief, reproduced as Resp. Aff., Ex. 4. On December 4, 1986, the Appellate Division, without opinion, unanimously affirmed the conviction. See People v. Purdy, 125 A.D.2d 1013, 508 N.Y.S.2d 359 (1st Dep't 1986). On February 16, 1987, the New York Court of Appeals denied Purdy's application for leave to appeal the Appellate Division's ruling. See People v. Purdy, 69 N.Y.2d 832, 513 N.Y.S.2d 1039, 506 N.E.2d 550 (1987). On February 27, 1987, and again on April 28, 1987, Purdy filed petitions with the Appellate Division to amend the remittitur to *351 include certain constitutional questions.[1]See Resp. Aff. at ¶¶ 7, 8. The Appellate Division denied these petitions. See id. On or about June 23, 1987, Purdy filed an Article 78 application in the New York Court of Appeals seeking to compel the Appellate Division to amend the remittitur. See id. at ¶ 9. The Court of Appeals rejected this application on jurisdictional grounds. See id.
On July 9, 1992, Purdy filed a petition for a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus By A Person In State Custody, dated June 2, 1992 ("1992 Petition") in Purdy v. Senkowski, No. 92 Civ. 5125(S.D.N.Y.), reproduced as Resp. Aff., Ex. 5. In the 1992 Petition, Purdy alleged that his arrest amounted to an unconstitutional search and seizure, his counsel was ineffective, his trial was unfairly conducted, and his due process rights were violated. See id. at 5-6. On January 24, 1995, the Court (per Leisure, J.) ruled that Purdy failed to exhaust his ineffective assistance of counsel claims. Because the petition contained unexhausted claims, the court dismissed the entire petition. The court dismissed the petition without prejudice, instructing Purdy to return to federal court when he had either submitted the petition without the unexhausted claims or had exhausted those claims through a post-judgment motion pursuant to New York Criminal Procedure Law § 440.10 (hereinafter, a "440 motion"). Purdy v. Senkowski, 1995 WL 16785 (S.D.N.Y. Jan.18, 1995) (reproduced as Resp. Aff., Ex. 7). Purdy did not appeal this order.
Rather than file a 440 motion, Purdy apparently took no action for two years. Then without having returned to State court to exhaust his claim Purdy filed a second federal habeas petition in April 1997, raising precisely the same claims he raised in the 1992 Petition. See Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus By A Person In State Custody, dated April 21, 1997 ("1997 Petition") in Purdy v. Senkowski, No. 97 Civ. 3877 (S.D.N.Y.), reproduced as Resp. Aff., Ex. 9. On September 15, 1997, Magistrate Judge Henry B. Pitman recommended that the petition be dismissed. See Report and Recommendation, reproduced as Resp. Aff., Ex. 11. Judge Pitman determined that the petition was untimely under the limitation period established by the 1996 Anti-Terrorism and Effective Death Penalty Act (the "AEDPA") because Purdy did not file the petition until after a "reasonable time" had elapsed. Id. at 4-8.[2] In an alternative holding, he ruled that because "Purdy has taken no steps whatsoever to remedy his failure to exhaust, his assertion of the same ineffective assistance [of counsel] claim a second time requires dismissal for the reasons stated by Judge *352 Leisure in 1995." Id. at 8. Finally, Judge Pitman recommended that certification under 28 U.S.C. § 1915(a)(3) be issued that any appeal would not be taken in good faith. Id. at 11. On October 14, 1997, District Judge Deborah A. Batts adopted Judge Pitman's Report and Recommendation in its entirety. See Order, filed October 14, 1997, reproduced as Resp. Aff., Ex. 12.
On November 13, 1997, Purdy moved in the Second Circuit for a certification of appealability of the judgment dismissing the 1997 Petition. See Notice of Appeal, dated November 13, 1997, reproduced as Resp. Aff., Ex. 13. On April 13, 2000, the Second Circuit denied this motion "solely because appellant's ineffective assistance of trial counsel claim is unexhausted." See Order, reproduced as Resp. Aff., Ex. 14. The Second Circuit instructed Purdy to exhaust this claim by filing a 440 motion or to file a habeas petition that does not contain this unexhausted claim. See id. This decision also specifically noted that "[t]his Court makes no ruling on the question of timeliness either after the claim has been exhausted or if appellant has abandoned the unexhausted claim." See id.
On May 23, 2000, over five years after he had first been instructed to do so, Purdy filed a 440 motion in the Bronx County Supreme Court, seeking to vacate his conviction on the ground that he had received ineffective assistance of counsel at trial. See Resp. Aff. at ¶ 15; Habeas Petition at 3. On June 29, 2000, the court denied his motion. See Resp. Aff. at ¶ 15; Habeas Petition at 3. On September 21, 2000, the Appellate Division denied Purdy leave to appeal the Supreme Court's denial of his motion. See Resp. Aff. at ¶ 15.
On March 15 2001[3], Purdy executed the instant Habeas Petition, which was received by the Court's Pro Se Office on March 19, 2001, and filed on April 30, 2001. In the petition, Purdy raises the same grounds for relief that were raised in his prior habeas petitions: that his arrest was unconstitutional, that he was denied his right to a fair trial, that his trial counsel was ineffective, and that he was denied due process of law. Habeas Petition at 4-4B. By Order filed May 15, 2001, District Judge Loretta A. Preska referred the petition to the undersigned for a Report and Recommendation. On May 17, 2001, the Court ordered the respondent to file an answer, other responsive pleading, or a motion by July 16, 2001 a date that was subsequently extended until October 12, 2001. The order also gave Purdy thirty days to file a response to any motion filed by the respondent.
By notice of motion, filed October 12, 2001, the respondent moved to dismiss the petition, pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted on the ground that Purdy failed to file the petition within the limitation period set forth in 28 U.S.C. § 2244(d)(1). See Notice of Motion To Dismiss Pursuant To Fed.R.Civ.P. Rule 12(b)(6) and 28 U.S.C. § 2244(d)(1), filed October 12, 2001. On November 14, 2001, Purdy's Traverse and Memorandum of Law ("Traverse") was filed in response to respondent's motion.
II. DISCUSSION
A. Applicability of Fed.R.Civ.P. 12(b)(6)
In his Traverse, Purdy claims that "dismissal pursuant to Fed.R.Civ.P. Rule *353 12(b)(6) is an inappropriate motion in a habeas corpus proceeding," Traverse at 1, citing to Browder v. Director, Dep't of Corr. of Illinois, 434 U.S. 257, 269 n. 14, 98 S. Ct. 556, 54 L. Ed. 2d 521 (1978). In Browder, the Supreme Court in dictum indeed stated that a motion to dismiss a habeas proceeding was "inappropriate." Id. That statement, however, was made with respect to a petition that had been filed prior to the enactment of the Rules Governing Section 2254 Cases In the United States District Courts ("2254 Rules"). The 2254 Rules provide that, rather than require the filing of an Answer (the normal process under Rule 5), the Court may "take such other action as the judge deems appropriate." The Advisory Committee Notes state that this provision is
designed to afford the judge flexibility in a case where either dismissal or an order to answer may be inappropriate. For example, the judge may want to authorize the respondent to make a motion to dismiss .... In these situations, a dismissal may be called for on procedural grounds, which may avoid burdening the respondent with the necessity of filing an answer on the merits of the petition.
In this case, the Court had issued an order specifically invoking Rule 4 and granting leave to "respondents .. to move with respect to the petition." Order, filed May 18, 2001, at ¶ 4. The Court's grant of permission to move with respect to the petition was "deem[ed] appropriate" because it avoided burdening the respondent with filing a formal answer in the event the respondent was able to raise a dispositive ground for dismissal. See White v. Lewis, 874 F.2d 599, 602-03 (9th Cir.1989) (motion to dismiss habeas petition on procedural grounds is authorized by 2254 Rules); Ukawabutu v. Morton, 997 F. Supp. 605, 608 (D.N.J.1998) ("The district court certainly has discretion to order or permit respondents, upon request, to file a motion to dismiss as one of the `other actions' which the court may allow, including the discretion to permit the filing of a motion to dismiss before a respondent files an answer.").[4] Accordingly, Purdy's challenge to the manner in which the respondent has raised the statute of limitations issue must be rejected.
B. The AEDPA Limitation Period
The AEDPA imposes a one-year limitation period on federal habeas corpus applications by a person in custody pursuant to a state court judgment. 28 U.S.C. 2244(d)(1). The one year limitation period runs from the latest of
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has *354 been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
The only subsection apparently applicable to this case and the only one to be argued by either of the parties is subsection (A): the date on which the petitioner's State court judgment of conviction became final.
Purdy was convicted in the Bronx County Supreme Court in 1986. The Court of Appeals denied leave to appeal on February 16, 1987. Therefore, including the 90 day period in which Purdy could have sought review in the U.S. Supreme Court, see, e.g., Smith v. McGinnis, 208 F.3d 13, 15 n. 1 (2d Cir.), cert. denied, 531 U.S. 840, 121 S. Ct. 104, 148 L. Ed. 2d 63 (2000), the judgment became final on May 16, 1987. Prisoners whose convictions became final prior to the effective date of the AEDPA, April 24, 1996, however, are afforded a one-year grace period following that date, or until April 24, 1997. Ross v. Artuz, 150 F.3d 97, 103 (2d Cir.1998). Therefore, Purdy had until April 24, 1997, to file a federal habeas petition. The present petition, however, was not filed until March 2001, and thus is untimely unless Purdy can show that the limitations period was sufficiently tolled.
28 U.S.C. 2244(d)(2) provides that the limitation period is tolled during the time that "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." During the one-year period between April 24, 1996, and April 24, 1997, however, Purdy had not filed, nor was there pending, any application for State post-conviction or other collateral review. While Purdy had arguably filed the 1997 federal habeas petition on April 21, 1997,[5] the filing of the 1997 petition is of no significance for the statute because a federal habeas petition is not an "application for State post-conviction or other collateral review" within the meaning of 28 U.S.C. 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 121 S. Ct. 2120, 2129, 150 L. Ed. 2d 251 (2001). Thus, the instant petition is untimely.
C. Equitable Tolling
Because the one-year deadline for filing a section 2254 petition is a statute of limitations and not a jurisdictional bar, however, equitable tolling is available. Smith v. McGinnis, 208 F.3d at 17. The Second Circuit has held that the AEDPA's one-year limitation period may be equitably tolled where a petitioner shows that "extraordinary circumstances prevented him from filing his petition on time." Smith, 208 F.3d at 17. In addition, the petitioner seeking equitable tolling must "have acted with reasonable diligence throughout the period he seeks to toll." Id. Equitable tolling may only be applied in "rare and exceptional circumstances." Id. (quoting Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir.), cert. denied, 528 U.S. 1007, 120 S. Ct. 504, 145 L. Ed. 2d 389 (1999)); accord Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir.2001).
As an initial matter, it is important to identify the periods requiring tolling in order for the instant petition to be timely. *355 The periods are: (1) from April 26, 1996 (the date on which the petition was considered "final" for purposes of 28 U.S.C. § 2244(d)(1)(A)) to May 23, 2000 (the date on which the 440 motion was filed); and (2) from September 21, 2000 (the date the Appellate Division denied Purdy leave to appeal the denial of the 440 motion) to March 15, 2001 (the presumed date of the delivery of the instant petition to prison authorities for mailing). These two periods total more than 4-1/2 years.
Purdy offers two bases for equitable tolling. First, he claims that during the first week of July 2000, he was transferred from the Clinton Correctional Facility to the Elmira Correctional Facility and "in the process of this transfer, most of petitioner's transcripts and research material were lost," which delayed his filing of the instant petition. See Brief of Fact & Law For Petitioner, received by the Court's Pro Se Office on March 19, 2001 ("Purdy Brief") at 5. Assuming without deciding that this was an extraordinary circumstance beyond Purdy's control and that he acted with reasonable diligence, it could serve to toll only some portion of the second period discussed above. To make a successful equitable tolling showing, however, a petitioner must demonstrate extraordinary circumstances that prevented the filing of the petition on time. Smith, 208 F.3d at 17. The alleged loss of papers occurred long after the limitation period expired and thus could not have prevented Purdy from filing the petition on time. Accordingly, this argument fails.
Purdy also argues that he abstained from complying with the clear direction of the Court in January 1995 to exhaust his claims through a 440 motion because he believed it would be "futile" to do so. Purdy Brief at 3. His basis for this belief is that he "had already presented all of his issues" to the state courts, "resulting in these courts completely ignoring the issues." Id. See also Traverse at 14 (exhausting state remedies would have been a "futile gesture"). A petitioner's personal view that a claim has already been presented to the state courts after a district court's ruling to the contrary is insufficient to meet the petitioner's burden that he act with "reasonable diligence," Smith, 208 F.3d at 17. See also Smaldone, 273 F.3d at 138 (habeas petitioners seeking equitable tolling are required to show they acted with "reasonable diligence" and that extraordinary circumstances beyond their control prevented them from filing the petition). Had Purdy been acting with reasonable diligence, he would have complied with the district court's ruling on the 1992 Petition and either excised his unexhausted claim from his petition or returned to the state court to exhaust it. Instead, he waited until after the 1997 Petition was denied and after the limitation period had run to exhaust his unexhausted claim. There are no allegations of extraordinary circumstances beyond Purdy's control that prevented him from either promptly exhausting this claim or filing a timely habeas petition.
D. Purdy's Other Arguments
Purdy spends the majority of his opposition to the respondent's motion arguing that his ineffective assistance of counsel claims in fact were properly exhausted, notwithstanding the 1995 decision of the district court to the contrary. Traverse at 5-12. Because this issue was previously and necessarily decided by a valid and final judgment to which Purdy was a party, collateral estoppel prevents Purdy from re-litigating this issue. See, e.g., Flaherty v. Lang, 199 F.3d 607, 613 (2d Cir.1999) (describing elements of collateral estoppel).
*356 Finally, Purdy also seems to argue that this Court should consider all of the federal petitions as one petition, thus deeming the present petition to have been filed when the 1992 Petition was filed. Traverse at 3-4. This argument, however, is foreclosed by Warren v. Garvin, 219 F.3d 111, 114 (2d Cir.), cert. denied, 531 U.S. 968, 121 S. Ct. 404, 148 L. Ed. 2d 312 (2000), which held that a habeas petition cannot relate back to a previously-filed and dismissed petition for purposes of meeting a statute of limitations.
III. CONCLUSION
The petition should be dismissed as barred by the applicable statute of limitations.
Notice of Procedure for Filing of Objections to this Report and Recommendation
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Loretta A. Preska, 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned at 40 Centre Street, New York, New York 10007. Any requests for an extension of time to file objections must be directed to Judge Preska. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 155, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985).
NOTES
[1] In New York State practice, a "remittitur" refers to the judgment or order of an appellate court. See Civil Practice Law and Rules 5524(b); cf. New York Court Rules § 500.15 (rule on issuance of remittitur). A motion to amend the remittitur is sometimes made to request that a court indicate that its decision has passed on a federal issue. See, e.g., United States ex rel. Knight v. Fay, 232 F. Supp. 910, 911-12 (S.D.N.Y.1964); see also David D. Siegel, Supplementary Practice Commentaries, § C5424:2 McKinney's Consol. Laws of N.Y. (1998) (motion to amend the remittitur used "to clarify the involvement of [a federal] issue so as to set the stage for a petition for certiorari to the U.S. Supreme Court, with the hope of obtaining further review of the federal issue").
[2] The Second Circuit subsequently held that for convictions that occurred prior to the establishment of the AEDPA's limitation period, a habeas petition is timely if filed within one year of the AEDPA's effective date, which was April 24, 1996. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir.1998).
[3] The petition is actually dated March 15, 2000, but because it was received by the Pro Se Office on March 19, 2001, and refers to events that took place after March 13, 2000, see, e.g., Habeas Petition at 3, the Court concludes that Purdy inadvertently wrote 2000 instead of 2001.
[4] In further support of this Court's grant of permission, Rule 11 of the 2254 Rules states that the "Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules." See also Fed.R.Civ.P. 81(a)(2) ("[t]hese rules are applicable to proceedings for ... habeas corpus ... to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice of civil actions"); Davis v. Artuz, 2001 WL 1006723, at *1 (S.D.N.Y. Aug.31, 2001) ("Rule 11 of the Rules Governing Section 2254 ... and Rule 81(a)(2) ... permit a court to apply the Federal Rules of Civil Procedure to habeas corpus proceedings.").
[5] The 1997 Petition is dated April 21, 1997, and was stamped "received" by this Court's Pro Se Office on April 28, 1997. Assuming without deciding that Purdy delivered the petition to prison authorities for mailing on April 21, 1997, he is entitled to have the petition deemed filed on that date. See Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir.), cert. denied, ___ U.S. ___, 122 S. Ct. 197, 151 L. Ed. 2d 139 (2001). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2439763/ | 214 F. Supp. 2d 443 (2002)
The BRONZE SHIELDS, et al., Plaintiffs,
v.
The CITY OF NEWARK, et al., Defendants.
No. Civ.A.2022-72(JWB).
United States District Court, D. New Jersey.
April 17, 2002.
*444 Lester J. Elliott, East Orange, NJ, Pro se.
Rutgers Constitutional Litigation Clinic by Jonathan M. Hyman, Newark, NJ, for plaintiff class.
Joanne Y. Watson, Corporation Counsel by Richard C. Gordon, Assistant Corporation Counsel, City of Newark, Department of Law, Newark, NJ, for Defendants.
OPINION
BISSELL, Chief Judge.
This matter comes before the Court on its Order to Show Cause, dated February 13, 2002, why Lester J. Elliott ("Mr.Elliott") should not be entitled to equitable relief, despite the City of Newark's ("the City") objection to his appointment as a police officer on the ground that he was not a resident of Newark in August 2000 when he reapplied for that position at the Court's direction. Argument on the Order *445 to Show Cause was held on March 20, 2002. This is the latest in a series of judicial interventions in this matter since Mr. Elliott began seeking this Court's assistance in securing an appointment to the City's police force. The Court has previously determined that Mr. Elliott is a class member in the above-referenced litigation, which was concluded pursuant to a court-approved Consent Decree ("the Consent Decree"), entered March, 4, 1987, and is entitled to certain rights thereunder.[1]
I. PRELIMINARY STATEMENT
Mr. Elliott is seeking appointment pursuant to a Consent Decree that concluded a civil rights class action based on allegations of the City's racial discrimination in hiring police officers. The Consent Decree mandates that class members be placed on a preferential hiring list for police officer positions as they open up; in essence, these individuals are given priority over other applicants. It may be fairly said that this priority scheme is the cornerstone of the settlement agreement, for it directly addresses the class members' principal grievance, that is, that they were denied appointment on the basis of unlawful discrimination. In exchange for Newark's promise to follow the consent Decree's priority scheme, the class members relinquished their right to pursue further their claims against the City. The City now seeks to deny a class member the benefits of this bargain on the basis of a purported residency "requirement."
II. LEGAL OVERVIEW
Questions concerning the validity and applicability of the City's purported requirement must be resolved in the context of certain New Jersey statutes that define the metes and bounds of the proper use of residence in initial police hiring. Since 1972, New Jersey has prohibited a municipality from making residency a requirement for appointment to its police force. N.J.S.A. 40A:14-122.1 (West 2002) (alternately, "Section 14- 122.1" or "the 1972 Statute").[2] The pivotal term employed in the 1972 Statute is "requirement." When used in an employment setting, this word, under its ordinary meaning, is synonymous with a qualification or sine qua non, an indispensable condition, in hiring for a particular position.
In sharp contrast to a qualification is the concept of priority in hiring. Priority denotes a preference, one that is accorded to one group over another. A somewhat elementary illustration underscores the difference between these terms. If a grocery list stated that priority among different kinds of fruit should be given to apples over oranges, this would mean that the list's writer would prefer to have apples and, also, that oranges are an acceptable alternative if no apples are available. Were the list to say that apples are a requirement, or a qualification, the purchase of oranges rather than apples would not be acceptable.
A grasp of the different meanings of these terms, i.e., qualification and priority, *446 is critical to a proper understanding of New Jersey Statute § 40A:14-123.1a, which became effective on December 21, 1976. N.J.S.A. 40A:14-123.1a (West 2002) (alternately, "§ 14.123.1a" or "the 1976 Statute"). Under the 1976 Statute, which is titled "Police departments; priority of eligibility in accordance with residence for initial appointment," the first paragraph reads: "In any municipality of this State, before any person shall be appointed as a member of the police department and force, the appointing authority may classify all the duly qualified applicants for the position or positions to be filled in the following classes...." 40A:14-123.1a (emphasis added). It then goes on to assign priority to residents of the municipality (Class I), other residents of the county in which the municipality is situated (Class II), other residents of the State (Class III); and all other "qualified applicants" (Class IV). 40A:123.1a.
Fundamentally, § 14-123.1a does not alter § 14-122.1's prohibition on making residency in the municipality a requirement in police hiring. This is manifest from the fact that the term "qualified" is used in the 1976 Statute to describe applicants in all Classes, not just the municipal residents in Class I. Thus, the plain meaning of the 1976 Statute's terms indicates that the 1972 Statute remains fully in force. Rather than abrogating the 1972 Statute's prohibition on making municipal residency a qualification, the later provision merely permits municipalities to prefer some qualified applicants over others. Furthermore, this priority system is not imposed on municipalities; it is voluntary.
Under this analysis of New Jersey law, it is abundantly clear that a municipality cannot impose a municipal residency requirement on initial police hiring. Rather, at most, a municipality's use of residency in the hiring of new police officers is limited to the specific tiered preference system set forth in § 14-123.1a.
Judging from its papers and argument on the February 13, 2002 Order to Show Cause, the City fails to recognize, in general, the relationship between the 1972 and 1976 Statutes as discussed above and, in particular, the underlying differences between the concepts of qualifications and preferences in hiring. Such is apparent from the first sentence of its memorandum of law, which reads: "Mr. Elliott is not qualify [sic] to become a police officer candidate of the City of Newark Police Department because he is [sic] not a bone [sic] fide resident of the city at the time he completed his application." (Newark's Br. at 5) (emphasis added).[3] That the City regards non-residence as a bar to police appointment was reinforced repeatedly at oral argument.
The City makes three arguments in support of its view that municipal residency may be considered as a requirement to initial police appointment. First, it argues that the policies underlying the 1976 Statute operate as an effective repeal of the 1972 Statute. This argument is singularly unpersuasive. Had the legislature thought it either wise or expedient to repeal the 1972 Statute, it would have done so, either through express repeal or by employing more expansive language in the 1976 Statute. Significantly, the City does not assert because it cannot that the language of the later statute invalidates the earlier one.[4]
*447 Second, the City argues that a Newarkwide referendum, held on November 2, 1976, should be taken as establishing a tiered preference system for police employment consistent with the 1976 Statute. This argument is also flawed. The referendum in question concerned whether the City's long-standing residency requirement for all municipal posts should apply prospectively. It did not seek to establish any sort of priority system for police hiring. Moreover, it is not reasonable to attach any greater significance to the referendum inasmuch as the 1976 Statute permitting a tiered system did not become effective until seven weeks after that referendum was held.
Third, the City maintains that it is entitled to assert that municipal residence is a requirement, a "condition precedent" to employment in the City's counsel's words, because experience has shown that the supply of Class I applicants for open positions is never exhausted, which means that residence is a de facto requirement in police hiring. Putting aside for now whether the City has adduced any facts to support this position, all that need be said on this point is that it is negated by the clear and plain language of the governing law. N.J.S.A. 40A:14-122.1 and 123.1a (West 2002). When pressed at argument to identify some principle or rationale that would entitle the City, in its effort to deny appointment to Mr. Elliot, to assert a position that was clearly precluded by the law, counsel proclaimed that the City was simply ignoring and abandoning the requirement of 122.1 and, like other municipalities, was "kind of doing their thing." (Tr. Mar. 20, 2002 at 24:14-19. See also, id. at 5: 1-6). The Court declines to depart from the unmistakable import of the governing statutes on such an infirm basis.
Stripped of all its erroneous assertions that municipal residence can serve as a qualification for police officer hiring, the City's position is, at best, that it may deny Mr. Elliott's appointment because it would rather follow the permissible priority scheme described in the 1976 Statute rather than the one mandated in the Consent Decree. The Court's discussion of the merits of this contention is organized around the following issues: (1) whether, as a threshold matter, the City is entitled to raise in these proceedings the 1976 Statute's priority scheme as a bar to Mr. Elliott's appointment; (2) assuming the City may assert the 1976 Statute's priority scheme, whether the Consent Order precludes its application to Mr. Elliott; and (3) even if that scheme is available and applicable, does it operate to prevent Mr. Elliott's appointment.
III. DISCUSSION
A. The City is Not Entitled to Raise the 1976 Statute in These Proceedings.
As a threshold issue, the Court questions whether, in the instant proceedings, the City should be permitted to rely on the 1976 Statute's provision of a limited use for residency as a preference in the hiring *448 of its police officers. Before resolving this question, a brief discussion of the pertinent procedural history of this matter is warranted.
1. Relevant Procedural History
As early as December 1997, Mr. Elliott began writing this Court, seeking its assistance in having the City process his request to be placed on the preferential hiring list for police officers as set forth in the Consent Decree. At the Court's request, the Constitutional Litigation Clinic of the Rutgers University School of Law, through Jonathan M. Hyman, Esquire, counsel for the plaintiff class herein, prepared and filed a report dated April 9, 1999. That report concluded that there had been violations by the City of Mr. Elliott's rights under the Consent Decree. Following arguments prompted by a February 7, 2000 Order to Show Cause, this Court determined, on June 6, 2000, that the City had violated Mr. Elliott's rights under the Consent Decree and ordered that it promptly and properly consider a renewed application by Mr. Elliott. (Order of June 6, 2000). In essence, this Court offered the City a second chance to correct its mistakes and avoid potentially harsh sanctions. It appears that, sometime in the middle part of 2000 and prior to reapplying, Mr. Elliott moved his residence from Newark to East Orange, New Jersey.
Mr. Elliott continued to write to the Court, indicating that little progress had been made along the road to securing his appointment as a Newark police officer. Following the City's counsel's failure to respond to a letter of inquiry, this Court was again compelled to order the City to appear to account for this lack of progress. (Order to Show Cause of Apr. 12, 2001).
In response to the April 12, 2001 Order to Show Cause, the City raised, for the first time in these proceedings, the issue of Mr. Elliott's change of residence, by its counsel's certification, which stated in pertinent part:
Mr. Elliott's qualifications do not meet the criteria required to become a police officer of the city of Newark. Various issues surrounding his application for employment served to disqualify him, including the following: He was not a resident of the city of Newark at the time he completed his application to become a City of Newark police officer.
(Gordon Cert., May 7, 2001, ¶ 4) (emphasis added). The City made no mention of a preference system in the nature of that which is authorized by the 1976 Statute. Moreover, counsel certified that this statement was true, based on his investigation.
The Court was dissatisfied with both the City's explanation and its lack of observance of the procedures of the Consent Decree, as well as this Court's June 6, 2000 Order. Therefore on May 14, 2001, the Court ordered sanctions to be assessed against the City unless prompt action was taken on Mr. Elliott's application. (Order of May 17, 2001).
By letter of May 24, 2001, the City informed Mr. Elliott that he was no longer being considered for employment as a police officer for failing to meet certain "Requirements for appointment." (Letter from Police Director Joseph J. Santiago to Lester J. Elliott, dated May 24, 2001). Of the three requirements cited in the letter, two have since become ineffective. As to the remaining "requirement," the letter informed that: An applicant "must be a resident of the City of Newark at the time of appointment." (Id.) Nothing in the letter remotely suggested that the City was following a tiered preference system, but instead treated the issue of residency as an indispensable condition of appointment.
*449 Similarly, in another letter, dated August 24, 2001, sent to Mr. Elliott after he supplemented his application, the City once more invoked a residency "requirement" in rejecting his application, though there was nothing said of a tiered preference system. (Letter from Lisa Alexander-Taylor to Lester J. Elliott, dated August 24, 2001).
Following these letters, on October 30, 2001, the Court wrote to the City's counsel inquiring into the nature of the purported residency requirement and the consistency with which it had been applied in recent years. In particular, the Court asked if there were any written or unwritten exceptions to the purported residency requirement for police officers. The City responded with sworn statements of a number of individuals who had presided over police hiring during the pertinent years, which uniformly stated that there were no written exceptions to the "requirement" and two unwritten exceptions, neither of which was applicable to Mr. Elliott. (See affidavits of Lt. James J. Dupont, Lt. Robert L. Barr, Lt. Robert M. Embrey and Sgt. Robert J. Freda). Not surprisingly none of the affiants cited, mentioned or alluded to the 1976 Statute's tiered system, under which Mr. Elliott, even in light of the City's assessment of his residency, would have been entitled to be classified as a Class II qualified applicant.
2. Judicial Estoppel
The foregoing establishes a basis for the application of judicial estoppel to bar the City from arguing in these proceedings that Newark treats municipal residency as a priority factor in police hiring, as is contemplated by § 14:123.1a, rather than as a qualification. The doctrine of judicial estoppel was summarized by the Third Circuit in the following manner:
Judicial estoppel, sometimes called the "doctrine against the assertion of inconsistent positions," is a judge-made doctrine that seeks to prevent a litigant from asserting a position inconsistent with one that she has previously asserted in the same or in a previous proceeding. It is not intended to eliminate all inconsistencies, however slight or inadvertent; rather, it is designed to prevent litigants from "playing `fast and loose with the court.'" "The basic principle ... is that absent any good explanation, a party should not be allowed to gain an advantage by litigation on one theory, and then seek an inconsistent advantage by pursuing an incompatible theory."
Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 358 (3d Cir.1996) (internal citations omitted). Three requirements must be met in order to apply judicial estoppel: (1) the party to be estopped must have taken two positions that are irreconcilably inconsistent; (2) that party must have changed positions in bad faith, i.e., with the "intent to play fast and loose with the court"; and (3) the remedy must be tailored to address the harm identified. Montrose Med. Group Participating Savings Plan v. Bulger, 243 F.3d 773, 779-80 (3d Cir.2001).
First, prior to the filing of its papers in opposition to the February 13, 2002 Order to Show Cause, the City never took the position that it administered its hiring of police officers under the type of scheme articulated in the 1976 Statute. To the contrary, throughout these proceedings, it argued that Mr. Elliott's residence outside of Newark was an absolute bar to his appointment as a police officer. Such a position is irreconcilably inconsistent with the existence of a tiered system that accords municipal residents a preference over nonresidents, but does not elevate municipal residency to the level of a qualification for police employment. Second, the surrounding circumstances persuade *450 the Court to find that this change was made only for tactical advantage, and, therefore, in bad faith. Finally, estoppel in this case is appropriately tailored to prevent the City from exploiting a position which, at no point in these proceedings, it had chosen to advance.
In addition, it cannot be questioned that the City has benefitted from taking its prior position that residency was a requirement of employment. Ryan Operations, 81 F.3d at 361 (stating that doctrine of judicial estoppel is particularly appropriate in situations in which the party benefitted from its original position) (citing cases). That position offered what appeared to be a "clean" ground on which to deny Mr. Elliott's appointment, one that the Court was prepared to accept on the representation from the City's counsel. (See Letter from Judge Bissell to Richard Gordon, dated Oct. 30, 2001). Only through the Court's own research were the controlling state statutes revealed. Simply put, if ever there were a case for judicial estoppel, it is this case.[5]
3. Factual Insufficiency
Even were the Court disinclined to impose estoppel on the City, it would, nonetheless, reject as factually unsupported the City's nascent assertion that its use of residence in police hiring is consonant with § 14-123.1a. The instant Order to Show Cause specifically identified the 1976 Statute as its point of interest in assessing whether Mr. Elliot should be entitled to relief. The City's papers and the argument of its counsel at the hearing, however, set forth nothing more than self-serving assertions in support of its reliance on the 1976 Statute. No example of a tiered list of candidates for the position of police officer has been produced by the City. No proofs were presented regarding the number of applicants who have fallen into the various tiered classes relative to the number of job openings. Stated bluntly, the City has expended the Court's willingness to accept on faith its representations. Therefore, on the facts, it is the determination of this Court that the City has not demonstrated that it has implemented a tiered priority system in the mold of the 1976 Statute.
B. The Consent Decree Precludes the City's Efforts to Disqualify or "DePrioritize" Mr. Elliott's Appointment on the Basis of Non-Residency in Newark.
For the sake of thoroughness, the Court will address alternative grounds that support its decision that the City cannot deny Mr. Elliott's appointment based on his current residency. Assuming both that the 1976 Statute is a viable part of the City's police hiring activities and that the City is entitled to take this position, it is considered whether the application of that provision to Mr. Elliott conflicts with and, in that event, supersedes the court-approved Consent Decree.
The Consent Decree vests the Court with the authority to interpret, enforce and implement the Decree. (Consent Decree, § II, ¶ C). Moreover, the Third Circuit has recognized that a court has "inherent power to enforce a consent decree in response to a party's non-compliance, and to modify a decree in response to changed circumstances." Holland v. *451 N.J. Dep't of Corr., 246 F.3d 267, 270 (3d Cir.2001). Also, the Court has broad equitable power to fashion a remedy in undertaking compliance enforcement. (Id.) Speaking to this point, the Supreme Court has stated that "[w]hen a district court's order is necessary to remedy past discrimination, the court has an additional basis for the exercise of broad equitable powers." Spallone v. United States, 493 U.S. 265, 276, 110 S. Ct. 625, 107 L. Ed. 2d 644 (1990).
As discussed above, the primary affirmative relief granted to class members in the Consent Decree was assigning them to a "preferential hiring list," (Consent Decree, § VII), which essentially gave them priority in being hired for open positions with the City's police department. As to the hiring of these preferred individuals, it is clear that the Consent Decree removed the City's discretion to deny them appointment so long as they were qualified. This was the cost the City was willing to pay to avoid the risk of an embarrassing and costly final judgment had the litigation proceeded.
Though it precluded specific factors as screening criteria, (see Consent Decree, § VI, ¶ C), the Consent Decree permitted the City flexibility in setting standards for a candidate's qualification to serve as a police officer: "The criteria to be used in screening class members and named plaintiffs shall be those used in screening police officer candidates after this Decree becomes effective; a class member or named plaintiff may be disapproved if he does not meet such criteria." (Consent Decree, § VII, ¶ G).
In light of terms employed and this paragraphs' function in the overall settlement plan, the Court construes that residency does not fall within this provision's allowance for "criteria to be used in screening class members." As discussed in preceding sections of this Opinion, the most the state law allows in regard to the use of municipal residency in hiring of police officers is the preference scheme described in the 1976 Statute. On the other hand, paragraph G of section VII of the Consent Decree essentially speaks to qualifications. Its use of the terms of "disapprove[]," "bar to employment," and "qualified to be a police officer" is more indicative of setting the requirements for the job of police officer than the priority in which qualified individuals are hired for that job. Were it otherwise, this provision would serve as a loophole through which a proverbial truck could be driven; it would undercut severely the Consent Decree's aim of elevating qualified class members to the top of the list, notwithstanding the individual's having or lacking certain preferential characteristics that did not rise to the level of job requirements.
In short, the Court determines that the City's purported application of the preferential hiring scheme set forth in § 14-123.1a runs afoul of the Consent Decree that terminated the class action in this matter. Though the City might have sought to apply the 1976 Statute's system in the normal course, this is not the usual situation. To permit the City to impose factors, such as municipal residence, on the hiring of Mr. Elliott that are not bona fide requirements for the position he seeks would vitiate the efficacy of the Consent Decree and disrupt the balance of interests reached therein.
C. Principles of Equity Direct that Mr. Elliott's Residency, Assuming its Applicability, be Determined as of the Date of His First Application to the Police Force.
Finally, were the Court inclined to find that the 1976 Statute's plan is applicable to Mr. Elliott, it would, nonetheless, conclude that he could properly be considered a Class I qualified applicant, entitling him to immediate hiring.
*452 It is undisputed that Mr. Elliott lived in Newark for many years and that, while a resident, he sought appointment as a police officer with the City. This appointment was delayed for a number of years through the course of the Bronze Shields litigation and these proceedings. His move to East Orange occurred only recently, relative to the date of his original efforts to secure appointment. Much of the recent delay in processing his candidacy is attributable to the City's asserting erroneous and unsupportable grounds to deny his appointment. Moreover, as determined previously by the Court, the City denied Mr. Elliott his procedural rights under the Consent Decree. Finally, the record is replete with instances of the City's inattention, or unwillingness, in moving this matter toward a speedy resolution, consistent with Mr. Elliott's legal rights. This pattern of behavior appears calculated to deny Mr. Elliott's rights under the Consent Decree, and, but for it, Mr. Elliott long ago would have been considered a Class I applicant. Now, having repeatedly evaded its legal obligations, the City claims that it is entitled to reject Mr. Elliott based on a recent change in his residence. To allow the City to prevail on this argument would be to permit a rigid principle of law to smother the factual realities to which it might be applied. Graziano v. Grant, 326 N.J.Super. 328, 342, 741 A.2d 156 (App.Div.1999). Principles of fairness and justice counsel that Mr. Elliott's residency be treated as that which he had at the time of his original application. (Id.) ("Equity will not permit a wrong to be suffered without affording the appropriate remedy.") ("[E]quity regards as done that which ought to be done.") (citing New Jersey cases).
Taking such an approach is neither unfair nor impractical. Such retrospective treatment is certainly consistent with provisions of the Consent Decree that mandate that class members, such as Mr. Elliott, be treated nunc pro tunc for a variety of purposes, for instance: maximum age limitation for police officers will not be a bar to employment of any class member who satisfied the age requirement at the time of his initial application, (Consent Decree, § VII, ¶ G); class member need not retake Civil Service physical performance test to be deemed qualified, (id., § VII, ¶ H); class member to be treated, once hired, for record and seniority (but not salary or benefits) purposes as if he had been hired when his name was first reached on a Civil Service Newark police officer eligibility list, (id., § VII, ¶ J). Only by taking such a flexible approach can the courts do justice when remedying years-old transgressions.
Furthermore, to allow the appointment of Mr. Elliott despite his current residency would not impair seriously the policy goals of preferring residents to nonresidents in the hiring of police officers. East Orange is geographically contiguous with Newark, which weakens any claim that Mr. Elliott's current residency would substantially affect his ability to respond quickly to local emergencies. Moreover, his many years of residence in Newark also eliminate any issue as to his special knowledge, vel non, of the City and its residents that is acquired only by living there.[6]
D. Remedies
At oral argument, discussions included potential remedies to be afforded to Mr. Elliott in light of the Court's rulings expressed above. Undoubtedly, the Order implementing this Opinion should provide *453 for steps calculated to promote Mr. Elliott's joining the Newark Police Department as promptly as possible. These should include directives that no considerations other than those expressly provided for by the Consent Decree can be brought to bear upon Mr. Elliott's application. The Court would also be very much inclined to direct that Mr. Elliott be admitted into a training class, even if one has to be initiated for him alone, within 20 days of the entry of any final order. Mr. Elliott has requested a nunc pro tunc hiring date, with all salary and benefits attendant thereto, to coincide with that of officers who have been sworn to duty after completion of a training class conducted in September 2001 from which Mr. Elliott was improperly excluded. The Court also raised the prospect of an award to Mr. Elliott of a reasonable attorney's fee reflecting his extensive, now ultimately successful, efforts to secure on the Newark Police Force a position that is rightfully his. Further research has revealed, however, that such awards are not allowed in cases where a litigant appears pro se. See Kay v. Ehrler, 499 U.S. 432, 435, 111 S. Ct. 1435, 113 L. Ed. 2d 486 (1991); Owens-El v. Robinson, 694 F.2d 941 (3d Cir.1982); Pitts v. Vaughn, 679 F.2d 311 (3d Cir. 1982).
Confirming the Court's request at oral argument, Mr. Hyman is to undertake the task of drafting a form of Order reflecting the decision set forth above and presenting remedies which appear to be appropriate in the present matter. That form of Order shall be presented on notice to both Mr. Elliott and counsel for the City of Newark, to which each may respond within 7 days of receipt thereof, pursuant to Local Civil Rule 58.1(b). If a dispute develops regarding the contents of the Order to be entered by the Court, it will probably be resolved upon the forms of Order and written arguments presented. Should the Court decide, however, to hold oral argument to settle the form of Order, all parties will be so advised.
CONCLUSION
In sum, the City's misguided effort to bar Mr. Elliott from appointment to its police force based on his residence is the latest in a line of insubstantial, baseless objections. The City must faithfully recognize Mr. Elliott's rights under the court-approved Consent Decree, not seek to undermine them in a systematic fashion. At each stage, it has taken this Court's intervention to ensure that Mr. Elliott is treated fairly and in accordance with the provisions of the Consent Decree. Therefore, it is not surprising that now, once again, the Court must exercise its powers to enforce those mandates. The Court will finalize and enter an order in the manner described in section 3.D above.
NOTES
[1] With respect to jurisdiction, the Consent Decree provides, in pertinent part, that "[t]he Court shall retain jurisdiction for the duration of this Decree to interpret, enforce and implement this Decree, including jurisdiction to grant such ancillary relief to enforce the Final Judgment as the Court finds just and proper." (Consent Decree, § II, ¶ C).
[2] A related provision, which also became effective in 1972, provides: "In any municipality wherein Title [11A] (Civil Service) of the Revised Statutes is operative, applicants for appointment to the police department and force who are not residents of the municipality shall be eligible for appointment thereto notwithstanding the provision of any statute, law, ordinance, rule or regulation to the contrary." N.J.S.A. 40A:14-122.2 (West 2002).
[3] At a number of further points, the brief goes on to characterize Mr. Elliott's non-residency in the City as a disqualification.
[4] Indeed, the City itself cites case law that confirms that, under the 1972 and 1976 Statutes, municipalities are prohibited from making residency a requirement in police hiring. In City of Newark v. PBA Local 3, 272 N.J.Super. 31, 639 A.2d 333 (App.Div.1994), the Court observed:
Until 1972, the City's residency ordinance required even police officers and firemen to reside in the City at the time of appointment and thereafter. This was changed by L.1972, c. 3, effective February 15, 1972, which was codified at N.J.S.A. 40A:14-122.1 and N.J.S.A. 40A:14-9.1, respectively. This new law invalidated that portion of the City's residency ordinance which was in existence on February 15, 1972 respecting continued residency of police officers and firemen. See N.J.S.A. 40A:14-122.1 and 9.1. But the residency requirement continued unabated for all who were not exempted from its requirement either by statute or the ordinance.
(Id. at 36).
[5] The Court's research did not reveal any Third Circuit rule that makes application of judicial estoppel against a public entity subject to additional considerations, as is the case when a party asserts equitable estoppel against the government. On this point, the Court finds persuasive the thorough discussion of the court in Czajkowski v. City of Chicago, No. 90 C 3201, 1993 WL 11896, at *2-3 (N.D.Ill., Jan. 19, 1993), concluding that special circumstances are not warranted when the party subject to judicial estoppel is the government.
[6] Finally, the Court notes (as acknowledged by all parties) that nothing prevents an officer from moving from Newark immediately following his appointment without losing his position. See, e.g., Tr. March 20, 2002 at 10:22-11:5. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1802572/ | 368 F. Supp. 387 (1973)
Christopher GREENWAY
v.
W. E. THOMPSON.
Civ. A. No. 17890.
United States District Court, N. D. Georgia, Atlanta Division.
December 28, 1973.
Thomas G. Sampson, Kennedy, Bussey & Sampson, Atlanta, Ga., for plaintiff.
Henry L. Bowden, City Atty., John E. Dougherty, Asst. City Atty., Atlanta, Ga., for defendant.
ORDER
EDENFIELD, District Judge.
This suit seeks damages from defendant, a police officer employed by the City of Atlanta, for gunshot wounds suffered by plaintiff. The basis for federal jurisdiction is 42 U.S.C. §§ 1983 and 1985. The case is before the court on plaintiff's motion to add the City of Atlanta as a party defendant and to *388 amend the pleadings to reflect this addition. The asserted basis for recovery is that the City is answerable in tort for its negligence in training defendant and that this negligence was a cause of plaintiff's injury. It is clear that Rules 18 and 20 of the Federal Rules of Civil Procedure encourage broad joinder and would allow joinder of plaintiff's claim against the City. However, these rules cannot by themselves confer jurisdiction on the federal court if it is otherwise lacking. Rule 82, Fed.R.Civ.P. In this case there is no diversity and plaintiff concedes that Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), forbids suit against the City under § 1983. Plaintiff thus advances only a state law claim against the City. This court has jurisdiction to allow joinder of the City as a defendant only if the doctrine of pendent jurisdiction allows the claim against the City to be brought into federal court as an adjunct of the federal law claim against the current defendant.
In 1966 the Supreme Court held that pendent jurisdiction allowed a federal court to rule on a state law claim before it even though plaintiff had lost on his only federal law claim. UMW v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). Although the case technically dealt only with a pendent claim, it introduced a new "common nucleus of operative fact" analysis, and it was not entirely clear to what extent, if any, the decision could be taken as broadening the availability of pendent jurisdiction. In particular it was unclear whether pendent jurisdiction allows joinder of a pendent party against whom only a state claim is asserted. The commentators split on the issue.[1] There have been a number of cases in the Fifth Circuit holding that pendent jurisdiction will not allow the addition of non-diverse parties if the original claim is in federal court by virtue of diversity. Lawes v. Nutter, 292 F. Supp. 890 (S.D.Tex.1968); Robison v. Castello, 331 F. Supp. 667 (E.D.La.1971). At least one court has allowed such a use of pendent jurisdiction in diversity cases. Jacobson v. Atlantic City Hospital, 392 F.2d 149, 155 (3d Cir. 1968). If, however, a federal cause of action is asserted against the original defendant, the Fifth Circuit has twice ruled that it is within the trial court's discretion to add a second defendant against whom only state claims will be prosecuted. Shannon v. United States, 417 F.2d 256 (5th Cir. 1969); Connecticut General Life Insurance Co. v. Craton, 405 F.2d 41 (5th Cir. 1968). This court, then, does have a discretionary power to take pendent jurisdiction over plaintiff's state law claim against the City. A number of factors are pertinent to the decision to exercise this discretion. These are perhaps best outlined in Connecticut General, supra, and in Eidschun v. Pierce, 335 F. Supp. 603 (S.D.Iowa 1971). One of the factors to be weighed in considering whether to exercise this discretion is whether issues of state or federal law would predominate on trial of the case. Latch v. Tennessee Valley Authority, 312 F. Supp. 1069 (N.D.Miss. 1970). In this case a consideration of the substantiality of the state law claim will be dispositive of the motion before the court and thereby render unnecessary any consideration of the other factors.
Given that the rule in the Fifth Circuit is that the trial court may, at its discretion, exercise pendent jurisdiction and allow the addition of a new defendant against whom plaintiff intends to prosecute a state cause of action arising from the same nucleus of operative facts as the federal claim brought against the original defendant, in order for plaintiff to prevail on the court to utilize this jurisdictional power, there must appear to be a cause of action which renders the defendant subject to suit in the state courts. Here the asserted cause of action is against a municipal *389 corporation, the City of Atlanta, for its negligence in training one of its police officers, which negligence resulted in the officer shooting and wounding plaintiff. Although there is some authority for the proposition that plaintiff could sue defendant's superiors personally for their negligence, if any, in training defendant,[2] the court can find no authority that supports the proposition that the City of Atlanta is amenable to suit in state court on this rationale.
The applicable Georgia statute states flatly and unequivocally:
"A municipal corporation shall not be liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law." Ga.Code Ann. § 69-307 (1967).
A survey of the decisions on this point reveals no judicial rending of the seamless prohibition of the statute. The classic statement of Georgia law is:
"Municipalities are liable for the acts of their officers, agents and servants only in instances as follows: (a) In the performance of any function where a statute specifically provides for such liability. (b) For neglect to perform or improper or unskillful performance of their ministerial duties. (c) For the performance of their governmental functions where the same amounts to the taking or damaging of private property for public purposes without first making adequate compensation therefor, or the creation of a nuisance dangerous to the life and health of persons because of its proximity to them in the enjoyment of their property." Stubbs v. Macon, 78 Ga.App. 237, 237-238, 50 S.E.2d 866, 867 (1948) (citations omitted).
In one of the more recent cases involving police officers, the plaintiff sought to base liability on a claim that the City was maintaining a public nuisance by retaining a vicious police officer on the force. After strongly reasserting the breadth of municipal immunity in Georgia, the court stated that "while counsel for the plaintiff may deserve credit for his ingenuity, the facts of the case as alleged in the petition show that, in the final analysis, the sole asserted basis of municipal liability is on the theory of respondeat superior, and the facts thus"[3] dictate dismissal of the suit. Any decision finding the City liable in this fact situation would require a deviation from settled Georgia law far greater than would be appropriate for a federal court.
The court finds that plaintiff has no cause of action against the City of Atlanta under current Georgia law and thus the motion to add the City as a new party defendant must be denied.
This decision renders the motion for permission to amend plaintiff's complaint moot and it is denied as well.
NOTES
[1] See, e. g., C. Wright, Federal Courts § 19, p. 65 (2d ed. 1970) (contra); Note, 81 Harv.L. Rev. 657, 662 (1968) (pro).
[2] Beverly v. Morris, 470 F.2d 1356 (5th Cir. 1972).
[3] Cumming v. Chastain, 97 Ga.App. 13, 15, 102 S.E.2d 97, 98 (1958). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2439732/ | 560 S.W.2d 177 (1977)
O. K. JONES and Ted Hunt, Jr., Appellants,
v.
R. L. McSPEDDEN, Paul Hamby and Charles C. Shaver, Appellees.
No. 19336.
Court of Civil Appeals of Texas, Dallas.
December 8, 1977.
Rehearing Denied January 5, 1978.
*178 David C. Lair, Dallas, for appellants.
B. J. Stephens, Stephens & Stephens, Dallas, for appellees.
GUITTARD, Chief Justice.
This appeal raises questions concerning waiver of defects in a motion for summary judgment and the affidavit supporting it and concerning the sufficiency of an opposing affidavit. The litigation began as a suit on a promissory note against a corporation and five of its stockholders as guarantors. *179 Three of the guarantors, R. L. McSpedden, Paul Hamby and Charles C. Shaver, filed a cross-claim against the other two guarantors, O. K. Jones and Ted Hunt, Jr., on an indemnity agreement. Before the main suit was tried, cross-plaintiffs filed a motion for summary judgment, which the court granted. After trial of the main cause before a jury, judgment was rendered for plaintiffs against all defendants, and the final judgment incorporated the summary judgment in favor of cross-plaintiffs. Cross-defendants filed a motion for new trial, which was overruled, and the only complaints on this appeal are directed to the judgment against cross-defendants on the indemnity agreement.
Two of cross-defendants' points attack the summary judgment for defects in the motion and the supporting proof. Cross-defendants point out that the motion does not state the specific grounds for summary judgment, as required by rule 166-A(c), Texas Rules of Civil Procedure, and they assert that there is no properly authenticated copy of the indemnity agreement attached to the motion, since the only purported copy of the agreement in the record is an unsworn photocopy attached to the cross-claim. Neither of these defects was pointed out to the trial court before the partial summary judgment was rendered, or even before the final judgment was signed, but both were assigned as error in cross-defendants' motion for new trial.
Cross-defendants concede that these defects are of the sort that cannot be raised for the first time on appeal under the holding in Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 234 (Tex.1963), but they argue that they were not waived because they were presented when the trial court still had power to grant a new trial. We conclude that these defects were matters of form that might easily have been cured if they had been pointed out in the response to the motion for summary judgment and, consequently, that they were waived by cross-defendants' failure to raise them before the interlocutory summary judgment was rendered.
Insofar as the motion for summary judgment failed to specify the grounds, we recognize that it did not comply with rule 166-A(c). Such a failure, however, is not in itself ground for reversal. If the opposing party files an exception to the motion stating that failure to specify the ground for summary judgment leaves him without adequate information for opposing the motion, and this exception is overruled, then he might have a valid complaint on appeal. Here, however, cross-defendants' response contained no such exception. If it had, the defect could easily have been cured by amending the motion. Since no such exception was filed, we hold that this defect was waived. Spray v. Stash, 523 S.W.2d 262, 263 (Tex.Civ.App.Eastland 1975, writ ref'd n. r. e.).
This holding is based on the same principle as that underlying rule 90, Texas Rules of Civil Procedure, which provides that defects in pleading are waived unless specifically pointed out by motion or exception in writing before the charge to the jury or rendition of judgment. Rule 166-A has been amended to require a special set of pleadings for summary judgment purposes. Subdivision (c) requires the motion for summary judgment to state specific grounds and has been further amended, effective January 1, 1978, to provide for an "answer or other response" by the opposing party. The function of these summary-judgment pleadings is to define the issues for the purpose of summary judgment, as the function of the principal pleadings is to define the issues for the purpose of trial. Consequently, although rule 90 does not specifically refer to summary-judgment pleadings, we hold that the same considerations apply and that defects in the motion are waived if not pointed out by timely exception.
Somewhat different considerations apply to the failure of cross-plaintiffs to support their motion for summary judgment with a properly authenticated copy of the indemnity agreement in question, but we conclude that the principle of waiver applies here also. The cross-claim alleges that the photocopy attached is a true copy *180 of the indemnity agreement, and McSpedden's affidavit filed in support of the motion states that the allegations in the cross-claim are true. Moreover, this affidavit states that the affiant saw all the parties sign the document attached to the cross-claim. Thus the record contains at least two sworn statements to the effect that the photocopy attached to the cross-claim is a true copy of the agreement on which the cross-claim is based. Technically, of course, the photocopy in this record is only a part of the pleading, and pleadings, even though sworn, are not proper summary-judgment proof under Hidalgo v. Surety Savings & Loan Ass'n, 462 S.W.2d 540, 545 (Tex.1971). Nevertheless, we regard this defect as one of form rather than of substance under the holding in Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 234 (Tex.1963). If cross-defendant had excepted to the affidavit because no properly authenticated copy of the indemnity agreement was attached, as did the complaining party in Texas Nat'l Corp. v. United Systems Internat'l Inc., 493 S.W.2d 738, 739 (Tex.1973), the defect could have easily been cured before the hearing on the motion for summary judgment by filing a properly authenticated copy of the agreement. The policy underlying the rules of civil procedure is that for most procedural errors to be corrected on appeal the complaining party must make his objection in the trial court, when practicable, at a time when the trial judge can correct the error without substantial interference with the judicial process. Applying this policy, the supreme court has held that an objection to rendition of judgment on an incomplete verdict comes too late because it should have been made before the verdict was received and the jury discharged. Lewis v. Texas Employers Ins. Ass'n, 151 Tex. 95, 246 S.W.2d 599, 601 (1952). On the same reasoning, we hold in the present case that since cross-defendants failed to point out the defect in the summary judgment proof in their response, or in any other manner, until long after the summary judgment was rendered, the defect was waived.
To permit the objection to be raised for the first time in the motion for new trial, as cross-defendants contend, would hinder the efficient administration of justice, as the present record demonstrates. The summary judgment in question was rendered on the cross-claim more than a year before the court rendered judgment on the main claim after trial before a jury. On hearing cross-defendant's motion for new trial, the judge could not simply have allowed cross-plaintiffs to cure the defect by amendment or additional filings, giving the cross-defendants additional time to respond, as he might have done at the hearing on the motion for summary judgment. If he had granted a new trial on this ground, he would have had to consider whether to grant a new trial in the main case also, since the posture of the parties at that trial might have been affected by the summary judgment. We are convinced, therefore, that the better rule is that defects of form, such as those in the present motion and its supporting proof, are waived if not pointed out to the court before summary judgment is rendered.
We turn now to cross-defendants' points asserting that they raised genuine issues of material fact by their affidavit in opposition to the motion for summary judgment. The main averments of this affidavit are the following:
The said agreement was without consideration for the following reasons:
1. The joint venture and Gar-Dal, Inc. were insolvent at the time of the purported conveyance of cross-plaintiffs' interest in the joint venture and transfer of cross-plaintiffs' stock in Gar-Dal, Inc. to cross-defendants, the interest and stock were worthless and of no value whatsoever, therefore, there was no consideration to support the purported agreement.
2. Cross-defendants were induced into signing the purported agreement by cross-plaintiffs, and in particular, cross-plaintiff, R. L. McSpedden, an attorney, at a time when cross-plaintiffs knew the interests and stock therein mentioned were of no value whatsoever and worthless.
*181 We hold that these conclusory statements are insufficient to raise a fact issue for several reasons. First, the indemnity agreement (which we have held to be properly before the court in absence of any objection to its lack of authentication) recites considerations other than the transfer of the stock, and the affidavit of cross-defendants does not negate such other considerations. Second, the statement that the corporation was insolvent and its stock worthless does not establish lack of consideration. The indemnity agreement in question shows on its face that it was made, at least in part, to facilitate an effort to raise capital for the continuing operations of the corporation. Thus, although the enterprise may have been in difficulty, the corporation was evidently still functioning, and cross-defendants, like other stockholders, could evaluate its prospects. If they agreed to give their indemnity to cross-plaintiffs in consideration of a transfer of cross-plaintiffs' stock, that agreement cannot be said to lack consideration because cross-defendants' evaluation of the corporation's prospects turned out to be inaccurate. Third, the assertion that cross-plaintiff McSpedden knew that the stock was worthless is not competent summary-judgment proof, since it states an opinion about McSpedden's state of mind, a matter on which the affiants could not have had direct personal knowledge. Fourth, even if McSpedden and the other cross-plaintiffs had regarded the stock as worthless at that time, there is no summary-judgment proof that the transaction was "tantamount to fraud," as cross-defendants assert in their brief, since there is no evidence that cross-defendants did not have the same information as cross-plaintiffs concerning the financial affairs of the corporation, of which they were all stockholders. The fact that McSpedden was a lawyer gives rise to no inference that he was in a superior position to determine the value of the stock or that he took an unconscionable advantage of cross-defendants in obtaining their signatures on the indemnity agreement. For all these reasons, we hold that the opposing affidavit is insufficient to raise any genuine issue of material fact.
Affirmed.
ROBERTSON, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2824078/ | 2015 IL App (1st) 143151
FIRST DIVISION
August 3, 2015
No. 1-14-3151
STEVEN TOUSHIN, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
GINA RUGGIERO, )
) No. 13 CH 10090
Defendant-Appellant, )
)
(First Merit Bank, a National Banking )
Institution, Trustee Under Trust Numbers )
78-03-2431 and 88-03-5438, ) Honorable
) Mary L. Mikva,
Defendant). ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Delort and Justice Cunningham concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Steven Toushin, brought a declaratory judgment action against defendants, First
Merit Bank (First Merit) 1 and Gina Ruggiero (defendant), in which he asked the circuit court to
declare that he had a 50% beneficial interest in two Illinois land trusts in which First Merit
served as trustee and defendant possessed the remaining beneficial interest. Plaintiff based his
claim on two assignments of beneficial interest, both dated February 16, 1994, in which he
claims defendant assigned 50% of the beneficial interest in each trust to him. First Merit
refused to lodge the assignments when plaintiff first presented them in April of 2013, citing the
1
Despite filing an appearance before the circuit court, First Merit Bank did not actively
participate in the proceedings and has not participated in this appeal. We will refer to defendant
Gina Ruggiero as defendant and defendant First Merit Bank as First Merit.
No. 1-14-3151
age of the assignments and noting that a dispute existed between plaintiff and defendant
regarding the validity of the assignments.
¶2 After a bench trial, the circuit court found in plaintiff's favor and entered a declaratory
judgment finding that plaintiff may lodge, and First Merit shall accept, the assignments of
beneficial interest. Defendant presented numerous affirmative defenses to plaintiff's action,
including that the cause of action was barred by the five-year statute of limitation period
provided for in section 13-205 of the Illinois Code of Civil Procedure (Code). 735 ILCS
5/13-205 (West 2012). In rejecting defendant's statute of limitation affirmative defense, the
circuit court found that no events adverse to plaintiff's interests occurred until he attempted to
lodge the assignments of beneficial interest in April of 2013, well within the five-year limitation
period of section 13-205.
¶3 Defendant raises the following issues for our review: (1) whether the circuit court erred in
entering a declaratory judgment against her; (2) whether plaintiff's claims are time-barred
pursuant to section 13-205 of the Code (Id.); (3) whether plaintiff's claims are barred by the
doctrine of res judicata; (4) whether the circuit court should have dismissed plaintiff's claim
pursuant to the doctrine of collateral estoppel; (5) whether the circuit court failed to apply the
doctrine of judicial estoppel; (6) whether plaintiff's evidence of a prior adjudication defeats his
claim; (7) whether the circuit court erred in denying defendant's motion to dismiss pursuant to
section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2012)); and (8) whether the circuit court
erred when it denied defendant's motion for summary judgment. Due to our conclusion in this
matter, however, we only need to address defendant's contention that plaintiff's claim is
time-barred pursuant to the statute of limitations period provided for in section 13-205 of the
Code. 735 ILCS 5/13-205 (West 2012). Accordingly, we hold plaintiff's cause of action in
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No. 1-14-3151
this case is time-barred because the evidence at trial showed that plaintiff knew, or at the very
least should have known, of the existence of his injuries outside of the five-year limitation period
provided for in section 13-205 of the Code.
¶4 JURISDICTION
¶5 On October 14, 2014, the circuit court entered a declaratory judgment in plaintiff's favor.
The court reserved ruling on defendant's counterclaims, and, regarding its entry of a declaratory
judgment, found "no just reason for delaying either enforcement or appeal or both" pursuant to
Illinois Supreme Court Rule 304(a). (eff. Feb. 26, 2010) (allowing this court to review
judgments as to fewer than all of the claims or parties when such a finding is made by the circuit
court). On October 15, 2014, defendant timely appealed. Accordingly, we have jurisdiction
pursuant to Illinois Supreme Court Rule 304(a). Id.
¶6 BACKGROUND
¶7 On April 15, 2013, plaintiff filed a verified complaint against defendants. Relevant to
this appeal, plaintiff asked for declaratory relief based on two assignments of beneficial interest
he possessed that he alleged assigned him 50% of the beneficial interest in two Illinois land trusts
that held title to property commonly known as 1349 and 1365 North Wells Street in Chicago,
Illinois. First Merit, as trustee, held title to the properties in the trusts as follows: in trust
number 78-03-2431, created March 16, 1978, it held title to 1349 North Wells Street; and in trust
number 88-03-5438, created March 5, 1988, it held title to 1365 North Wells Street. Plaintiff
alleged that defendant acquired 100% of the beneficial interest to the trusts in 1978 and 1988 "by
virtue of the [p]laintiff providing her and her husband, Angelo Ruggiero, with ownership of said
beneficial interests, in a fiduciary capacity since the [p]laintiff, for reasons well known to the
individual [d]efendant, were not intended to be made permanent." Plaintiff alleged that Angelo
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No. 1-14-3151
Ruggiero, in turn, transferred his interest in the trusts to defendant, Angelo's wife. Plaintiff
alleged that the transfer documents, as well as the trust documents creating the trusts, were lost
or misplaced.
¶8 In his complaint, plaintiff further alleged that "[f]rom their inception, [he] paid all the
expenses in connection with the properties held in the said [t]rusts, including the debt service on
the mortgage, real estate taxes, insurance and maintenance and/or improvements to the property."
Plaintiff and defendant own the Festival Theater Corporation which operates the Bijou Theater.
Plaintiff alleged defendant later assigned him 50% of the beneficial interest in the trusts as
consideration for plaintiff's expenditures, maintenance, and expenses related to the properties.
Plaintiff alleged that "[f]or reasons best known to the individual parties *** the [a]ssignments
were not submitted to the [t]rustee for acceptance until April 1, 2013." On that date, plaintiff's
attorney sent the assignments to First Merit for acceptance, which First Merit declined to honor
on April 5, 2013. Plaintiff alleged that "[o]n information and belief *** [defendant] has found
a prospective purchaser for the properties held in said [t]rusts; that she intends to convey the
property to said purchaser without disclosing or recognizing the [his] interest in said properties."
Accordingly, plaintiff asked that the circuit court enter a declaratory judgment pursuant to
section 2-701 of the Code (735 ILCS 5/2-701 (West 2012)) declaring the February 16, 1994,
assignments giving him a 50% beneficial interest in both trusts are valid, have full force and
effect, and were made with adequate consideration. Plaintiff asked that the circuit court direct
and order First Merit to recognize his interest, as well as for damages "as the Court may deem
appropriate."
¶9 In support of his complaint, plaintiff attached the two assignments, a letter from his
attorney to First Merit, and a letter in response from First Merit. The letter from plaintiff's
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No. 1-14-3151
attorney indicates that plaintiff attempted to lodge the assignments with First Merit on April 1,
2013. First Merit, however, refused to accept the assignments, stating the assignments "bear a
date from nearly 20 years ago and are the subject of a heated dispute between the original
beneficiary and your client." First Merit did indicate, however, that it would accept the
assignments "[u]pon provision of a court order resolving the legitimacy of the assignment or
consent from the current beneficiary."
¶ 10 The single page assignments of beneficial interest are both dated February 16, 1994, and
with the exception of the name of the individual trust involved, are nearly identical.
Specifically, the first assignment provides as follow:
"For value received I hereby sell, assign, transfer and set over unto
[plaintiff] Fifty (50%) per cent [of] my rights, powers, privileges and beneficial
interest in and under that certain trust agreement dated the 5th day of March ***
1988, and known as the The Midwest Trust Services, Inc. Trust Number
88-03-5438, including all interest of the undersigned in the property held subject
to said trust agreement.
The power of direction under this trust hereafter shall be exercised by
[plaintiff], [defendant]."
¶ 11 The second assignment is nearly identical to the first, except for that the trust listed is
"Trust Number 78-03-2431" and is from March 16, 1978. Defendant signed the assignments,
and plaintiff signed under a section titled "Acceptance." On both assignments, the section titled
"Trustee's Receipt" is blank.
¶ 12 On September 27, 2013, defendant filed a motion to strike and dismiss plaintiff's
complaint pursuant to section 2-619.1 of the Code. 735 ILCS 5/2-619.1 (West 2012).
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No. 1-14-3151
Relevant here, defendant sought dismissal of plaintiff's declaratory judgment action pursuant to
the five-year statute of limitations period provided for in section 13-205 of the Code. 735 ILCS
5/13-205 (West 2012). On January 16, 2014, the circuit court denied defendant's motion to
dismiss plaintiff's claim for declaratory relief.
¶ 13 Defendant filed a four-count counterclaim, seeking that her own declaratory judgment be
entered regarding her claim to possess 100% of the beneficial interest in both trusts. Defendant
also alleged slander of title, sought an action for possession, and asked the circuit court to order
an accounting be performed.
¶ 14 On March 7, 2013, defendant filed an answer to the complaint. Relevant here, she
argued, as an affirmative defense, that plaintiff's claim was time-barred pursuant to section
13-205 of the Code. Id.
¶ 15 On May 23, 2014, defendant filed a motion for summary judgment and a motion to
appoint a receiver. On July 3, 2014, the circuit court denied defendant's motion for summary
judgment and ordered that the motion for an appointment of a receiver be taken with the case.
¶ 16 Trial
¶ 17 At trial, plaintiff testified on his own behalf and called defendant, defendant's husband
Angelo Ruggiero, and Roseann Dupass, the vice president and trust officer at First Merit, as
witnesses.
¶ 18 Plaintiff testified that he gained ownership of the property at 1349 North Wells street as a
result of litigation against his business partners in the late 1970s. Angelo Ruggiero, defendant's
husband and a licensed attorney, represented plaintiff in the litigation. In 1983, plaintiff
received 11 subpoenas from the Internal Revenue Service. Angelo advised plaintiff that it
would be in his best interest to transfer some of his interest in the property located at 1349 North
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No. 1-14-3151
Wells Street to him. Angelo told plaintiff that in order to protect the property from the
imposition of a tax lien; he should transfer 50% of his beneficial interest in the land trust holding
title to 1349 North Wells Street. Accordingly, plaintiff assigned 50% of the beneficial interest
in the land trust holding title to 1349 North Wells Street to Angelo. Plaintiff successfully
entered into evidence an assignment dated April 4, 1983, which assigned a 50% interest in trust
78-03-2431 to Angelo.
¶ 19 Plaintiff testified that in January or February of 1984, Angelo told him that as his partner
in Festival Theatre Corporation, he would purchase the property located at 1365 North Wells
Street on his behalf because plaintiff could not obtain a mortgage. Plaintiff explained that
"Angelo said, you can't get a mortgage. I could help with you *** later on. I'll purchase the
building. It's your building. I'll purchase it. That's exactly what transpired." Angelo
purchased the building around April 1, 1984.
¶ 20 Plaintiff testified he moved his business into 1365 North Wells Street, where he has
remained since that time. Plaintiff testified that he and Angelo prepared leases for the property,
which "were drawn up for the bank's purposes because they held the mortgage and then they
were - moneys that paid the mortgages came through me." Specifically, they came "[t]hrough
the payments of corporation, tenants of the building."
¶ 21 Regarding the assignments at issue here, plaintiff testified that on February 16, 1994, he
spoke with defendant and Angelo in the kitchen of their home at around eight at night.
According to plaintiff, defendant handed him the assignments, and he observed defendant sign
the assignments. The assignments, however, were not dated, did not indicate the power of
direction, did not acknowledge the collateral assignee, or include his name, address, or social
security number. In 2013, plaintiff added the above information to the assignment, including
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No. 1-14-3151
the language indicated that he and defendant possessed the power of direction. Plaintiff
explained that when he went to lodge the assignments in 2013, the trustee, First Merit, refused to
accept them.
¶ 22 Plaintiff testified that Angelo represented him in numerous legal matters, including tax
disputes. He denied owing Angelo fees for his legal work. Plaintiff pled guilty to various tax
charges, and was incarcerated for a period of 18 months. Plaintiff also lost a civil tax case in
the 1990s, in which Angelo was involved in his representation, and was assessed a penalty of "7
or $800,000." The government never collected and did not try to levy his assets. Plaintiff
testified that in 1988, he faced a potential 45-year prison term when Angelo advised him that he
should transfer the remaining 50% beneficial interest in the land trust holding title to 1349 North
Wells Street to him. Plaintiff explained that Angelo told him "if you don’t get out of this alive,
if you don't get out of this, you have lost everything. If you turn the remaining 50% over to me
of what you owe, depending on the conviction, you get convicted, I could sell the assets and I
could set something up for your children." Plaintiff agreed to Angelo's arrangement to transfer
the remaining 50% of his interest in 1349 North Wells Street to Angelo for legal fees. Angelo
then drew up documents giving plaintiff back the property with defendant's signature on it. By
1988, he had given up 100% of the beneficial interest in 1349 North Wells. Plaintiff was also a
party to two divorce proceedings. Plaintiff explained that, based on Angelo's advice, he
testified during the divorce proceedings that he did not have an interest in either trust.
¶ 23 Plaintiff testified that he "sat down in 2006 with Angelo and just said here's money that is
owed us, what have you been doing for the building. Here are all these loans that have been
going on. Number one, I realized I was not in a good situation. I hadn't filed the [assignments
of beneficial interest]." Plaintiff testified that he had other assignments from defendant giving
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No. 1-14-3151
him 100% of the beneficial interest in the trusts, but, as a compromise, he was only going
forward on the 1994 assignments giving him a 50% beneficial interest in the trusts.
¶ 24 In 2013, plaintiff had a series of meetings with Angelo and defendant regarding selling
the property. He also had meetings with defendant's children who "indicated to me that the
paper that the [assignments of beneficial interest] was written on was not worth a penny, had no
value whatsoever." The children, however, did not deny the existence of the assignments or
indicate that the signatures were not legitimate.
¶ 25 On cross-examination, defense counsel asked plaintiff if he remembered being sued in a
2000 mortgage foreclosure matter, No. 2000 CH 07074, concerning both trusts, to which he first
responded "I didn't get sued." He later stated that he did not remember being sued. When
shown a document showing that a summons was returned with his name on it, plaintiff answered,
"If it says I got it, I got it." When shown that the return of service was filed on June 2, 2000,
plaintiff responded, "[t]hen I received it then." When asked "[w]ould you agree with me that if
that case were not successfully resolved, that you and your companies could have lost your
interest in the property?" to which he responded, "[e]veryone would have lost their properties,
yes."
¶ 26 Defendant successfully entered into evidence both the mortgage foreclosure summons
and the mortgage foreclosure complaint. The summons, dated May 9, 2000, lists plaintiff as a
defendant. The mortgage foreclosure complaint indicated that it was filed on May 9, 2000,
against the following defendants: Angelo Ruggiero; defendant; Midwest Bank and Trust
Company, as Trustee under Trust Agreement dated March 16, 1978 and known as Trust No.
78-032431; Midwest Bank and Trust Company, as Trustee under Trust Agreement dated March
5, 1988, and known as Trust No. 88-03-5438; plaintiff; Festival Theatre Corp.; Images of the
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No. 1-14-3151
World, Ltd.; unknown owners and non-record claimants. The mortgages and the notes are
attached to the complaint, and are dated June 22, 1999. The amount of original indebtedness
secured by each mortgage is listed as $725,000. The complaint lists the trusts as mortgagors
but Angelo and defendant as personally liable for a deficiency because they signed the notes
securing the mortgages. The mortgages were signed by the trustee.
¶ 27 Plaintiff also admitted that "between 2004, 2005" he learned about a new mortgage taken
out by defendant in 2003. He was "[a]nnoyed" by the mortgage. He explained, "I expressed
to them that I was annoyed. If you're going to take out a loan, why don't you come to me, why
don't you talk to me. Restructure it differently, instead of putting everything on mortgages and
keep paying a large sum of money over a long period of time. It's much easier way to pay back
loans than do that."
¶ 28 On redirect examination, plaintiff's counsel brought up the foreclosure action in the
following exchange:
"Q. what happened to the foreclosure action which is
defense exhibit Number 30?
A. I don't know because I wasn't involved in that. I must
have received it. I was not brought into the case.
After - when I looked at the document, my questioning was at a
certain point in time that the money was put into the account, so I
have no idea what happened to the money from that account or
whether there should be a foreclosure at that point in time."
Q. Were the properties foreclosed upon?
A. No, they were not."
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No. 1-14-3151
¶ 29 Defendant testified that plaintiff had been to her home five or six times and that he went
to her daughter's wedding. When asked whether the signatures on the February 16, 1994,
assignments were hers, she responded "I don't know. It looks like my signature, but, again, I
don't know." Defendant could not remember if plaintiff came to her home on February 16,
1994. She denied assigning any interest in the trusts to plaintiff, stating they were gifts from
her husband that she would never give to plaintiff. On cross-examination, she testified she is
not actively involved in the management of the buildings and Angelo did not tell her about his
clients. She both denied that the alleged February 16, 1994, meeting occurred and testified that
she could not remember if plaintiff came to her home on that date.
¶ 30 Roseann Dupass testified she worked at First Merit. In 2013, plaintiff presented her
with an assignment. The assignment, however, had "nothing filled in other than [plaintiff's]
signature." She informed plaintiff that all parties had to sign the document. Plaintiff later
brought her a signed assignment, but defendant's family had informed her that they disputed the
assignments. She testified that the blank assignment had defendant's signature on it.
¶ 31 Angelo Ruggiero, defendant's husband, testified that he represented plaintiff, who he
described as both a friend and a client, in a 1975 dispute. As a result of a settlement, plaintiff
received the real estate commonly known as 1349 Wells Street, $150,000 worth of film, and a
property in Indianapolis. Angelo placed the real estate at 1349 Wells Street in a land trust with
plaintiff owning 100% of the beneficial interest. Angelo denied meeting with plaintiff on
February 16, 1994. Subsequently, plaintiff assigned him half of the beneficial interest in the
property at 1349 Wells Street, half of the Indianapolis property, and half of $150,000 worth of
film. Angelo testified he bought the property located at 1365 North Wells Street himself.
Angelo testified that as a tenant, plaintiff's lease provided that he pay all mortgages, taxes, and
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No. 1-14-3151
maintenance. Angelo denied that he ever advised plaintiff to conceal his ownership interest in
the trusts. Angelo admitted that 10 years prior to trial, he had been suspended from the practice
of law for one year.
¶ 32 At the close of evidence, defendant moved for judgment as a matter of law. Relevant
here, defendant argued that plaintiff's claim was barred by the statute of limitations. The court
denied the motion, finding the statute of limitations did not run until First Merit refused to lodge
the assignments.
¶ 33 Defendant presented testimony from plaintiff, and her son Michael Ruggiero. During
defendant's case, plaintiff testified that he never tried to lodge the 1994 assignments at issue
"[b]ecause [he] never thought of it." He later testified both that he never thought "it was
necessary," and that he had an agreement with defendant and her husband. Regarding the
foreclosure action, plaintiff testified that "I got served with something, and then it went back to
Angelo, and he took care of it. No money was paid into those mortgages. What he did with the
money I don't know." He explained that "the Ruggieros *** were taking care of the problem."
In response to questioning from the court, plaintiff admitted that he knew about the mortgages
and he knew that he did not sign the mortgages. When the court asked if "the Ruggieros ha[d]
your permission to take out the mortgages," plaintiff answered, "[n]ot to refinance them, no."
He clarified that he and Angelo took out the original mortgage. Regarding the refinancing, he
testified he "was not privy to any information until 2004." He later testified that he did not file
his 1994 assignments because "I didn't feel I had to. I had it. I felt comfortable with it. I
didn't file it until I felt threatened, and that was now."
¶ 34 Michael Ruggiero testified he met with plaintiff who showed him blank assignment
forms.
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No. 1-14-3151
¶ 35 The circuit court found plaintiff to be a more credible witness than defendant and her
husband as to what occurred with the assignments of beneficial interest. Specifically, plaintiff's
testimony "matched better" with his documented divorce and tax litigation than the defendant's
claims regarding legal fees. The circuit court found defendant to be incredible. The court
found that it was her signature on the assignments, and noted that she did not dispute the validity
of her signature. Regarding the statute of limitations defense, the court found that it did "not
think that anything adverse to [plaintiff's] purported interest occurred until he tried to lodge the
assignments, the trustee refused and the Ruggieros apparently instructed the trustee not to accept
the assignments."
¶ 36 On October 14, 2014, the circuit court entered its judgment order finding in favor of
plaintiff and against defendant and First Merit. The court entered a declaratory judgment
finding that plaintiff may lodge the assignments of beneficial interest dated February 16, 1994,
and that First Merit shall permit the lodging. Pursuant to Illinois Supreme Court Rule 304(a),
the court found no just reason to delay enforcement or appeal of its declaratory judgment.
¶ 37 ANALYSIS
¶ 38 Defendant argues that plaintiff's claim for declaratory relief is barred by section 13-205
of the Code (735 ILCS 5/13-205 (West 2012)) because plaintiff knew, or should of known, of his
claim more than five years before he filed the present action in April of 2013. According to
defendant, plaintiff's cause of action can be characterized as either an action regarding personal
property or "civil actions not otherwise provided for" under section 13-205 of the Code. Id.
Defendant points to the following facts in the record in support of her argument: plaintiff was a
defendant in a 2000 mortgage foreclosure action; plaintiff testified he learned in 2004 that
defendant placed a mortgage on the property; and plaintiff met with defendant's husband in 2006
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No. 1-14-3151
in attempt to reconcile the parties' disagreement over the ownership of the property.
Accordingly, defendant argues that the five-year limitation period of section 13-205 of the Code
bars plaintiff's cause of action for declaratory relief. Id.
¶ 39 In response, plaintiff argues that any statute of limitation here could only begin to run
against him when he attempted to lodge the assignments of beneficial interest in the trusts with
the trustee in 2013, a time within the statute of limitations. Plaintiff disputes the relevance of
the 2000 mortgage foreclosure proceeding against him, arguing that no harm fell upon him, he
was only named in the proceedings because he resided at the property, and the mortgages at issue
were subsequently reinstated. Plaintiff stresses that defendant failed to cite any authority that
would require him to lodge his assignments of beneficial interest within a certain time frame.
In distinguishing authority relied upon by defendant, plaintiff maintains that "[t]he case at bar
involved neither tort issues [n]or breach of contract issues."
¶ 40 An Illinois land trust is a "unique" type of trust "created by the Illinois bar, with the aid
and acceptance of the Illinois bench, in the nineteenth and early twentieth centuries." Stable
Investments Partnership v. Vilsack, 775 F.3d 910, 912 (7th Cir. 2015). Land trust agreements
are widely used in real estate transactions and allow for both secrecy of ownership and ease of
transferability. People v. Chicago Title & Trust Co., 75 Ill. 2d 479, 488 (1979). Under such
an agreement, the true ownership of the land in question remains with the beneficiary despite the
trustee holding both legal and equitable title. Podvinec v. Popov, 168 Ill. 2d 130, 137 (1995).
A trustee of an Illinois land trust acts only as a representative of the beneficiary, and only when
directed to do so by the beneficiary, for the beneficiary's benefit. Id. Therefore, "[o]utside of
relationships based on legal title, the trustee's title has little significance." Id.
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No. 1-14-3151
¶ 41 It is well-established that a beneficiary of an Illinois land trust possesses an interest in
personal, not real property. In re Estate of Alpert, 95 Ill. 2d 377, 382 (1983). Therefore, "[a]n
assignment of a beneficial interest does not give the assignee a direct interest in the realty res of
the trust." Id. Outside of holding title, however, the beneficiary exercises and manages all
rights of ownership. 23-25 Building Partnership v. Testa Produce, Inc., 381 Ill. App. 3d 751,
755 (2008). Specifically, "[t]he 'owner of a beneficial interest in a land trust is accorded four
basic powers: (1) to possess, manage and physically control the real estate; (2) to receive all
income generated by the property; (3) to direct the trustee in dealing with title to the real estate;
and (4) to receive the proceeds of any sale of the property made pursuant to the power of
direction.' " LaSalle National Bank v. 53rd-Ellis Currency Exchange, Inc., 249 Ill. App. 3d
415, 429-430 (1993) (quoting Patrick v. Village Management, 129 Ill. App. 3d 936, 939 (1984)).
¶ 42 Statutes of limitation “discourage the presentation of stale claims and *** encourage
diligence in the bringing of actions.” Sundance Homes, Inc. v. County of Du Page, 195 Ill. 2d
257, 265-66 (2001). They “represent society’s recognition that predictability and finality are
desirable, indeed indispensible, elements of the orderly administration of justice.” Id. at 266.
A defendant, therefore, may invoke a particular statute of limitations as an affirmative defense to
a cause of action. John Doe A. v. Diocese of Dallas, 234 Ill. 2d 393, 413 (2009). The
appropriate statute of limitations to apply to a cause of action "is determined by the nature of the
plaintiff's injury rather than the nature of the facts from which the claim arises." Id. Stated
differently, the nature of the liability determines the appropriate statute of limitations.
Travelers Casualty & Surety Co. v. Bowman, 229 Ill. 2d 461, 469 (2008). Accordingly, we
must “look behind the allegations in a complaint to discover the true character of plaintiffs’
cause of action.” Armstrong v. Guigler, 174 Ill. 2d 281, 290 (1996). Therefore, type of injury,
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No. 1-14-3151
and not the pleader’s designation of the nature of the action, controls our determination. Id. at
286.
¶ 43 Illinois courts "have held that a statute of limitation begins to run when the party to be
barred has the right to invoke the aid of the court to enforce his remedy." Sundance Homes,
Inc., 195 Ill. 2d at 266. "Stated another way, a limitation period begins 'when facts exist which
authorize one party to maintain an action against another.' " Id. (quoting Davis v. Munie, 235 Ill.
620, 622 (1908)). Under the discovery rule, however, the commencement of the applicable
statute of limitations is delayed “ ‘until the plaintiff knows or reasonably should know that he has
been injured and that his injury was wrongfully caused.’ ” Hermitage Corp. v. Contractors
Adjustment Co., 166 Ill. 2d 72, 77 (1995) (quoting Jackson Jordan, Inc. v. Leydig Voit & Mayer,
158 Ill. 2d 240, 249 (1994). When a plaintiff knows, or should know, such information, "the
statute begins to run and the party is under an obligation to inquire further to determine whether
an actionable wrong was committed." (Internal quotation marks omitted.) Id. at 86. The
discovery rule developed in order to avoid harsh results due to the literal application of statutes
of limitation. Id. at 77. Whether a statute of limitations applies to a cause of action is a legal
question subject to de novo review. Travelers Casualty & Surety Co., 229 Ill. 2d at 466.
¶ 44 In this matter, plaintiff filed a declaratory judgment action pursuant to section 2-701 of
the Code, which allows the circuit court to, “in cases of actual controversy, make binding
declarations of rights, having the force of final judgments.” 735 ILCS 5/2-701 (West 2012).
“The essential requirements of a declaratory judgment action are: (1) a plaintiff with a legal
tangible interest; (2) a defendant having an opposing interest; and (3) an actual controversy
between the parties concerning such interests.” Beahringer v. Page, 204 Ill. 2d 363, 372
(2003). Section 2-701 “is strictly remedial” and “does not create substantive rights or duties,
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No. 1-14-3151
but merely affords a new, additional, and cumulative procedural method for the judicial
determination of the parties’ rights.” Id. at 373. Its purpose “is to allow the court to address a
controversy one step sooner than normal after a dispute has arisen, but before the parties take
steps that would give rise to a claim for damages or other relief.” Universal Underwriters
Insurance Co. v. Judge & James, Ltd., 372 Ill. App. 3d 372, 379 (2007). Plaintiff, therefore,
alleged that defendants’ failure to recognize his interest in the trusts “causes [him] irreparable
damage.” Accordingly, he asked the circuit court to declare that the February 16, 1994,
assignments giving him a 50% beneficial interest in each trust “are valid, are in full force and
effect and were made for a full and adequate consideration.” He further asked the court to order
First Merit to recognize his interest and for damages "as the Court may deem appropriate."
¶ 45 In response, defendant invoked section 13-205 of the Code as an affirmative defense to
plaintiff’s declaratory judgment action. 735 ILCS 5/13-205 (West 2012). Section 13-205
provides, in relevant part, that "actions on unwritten contracts, expressed or implied, or on
awards of arbitration, or to recover damages for an injury done to property, real or personal, or
to recover the possession of personal property or damages for the detention or conversion
thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next
after the cause of action accrued." (Emphasis added.) Id. Specifically, defendant argued that
plaintiff's action is barred because it is an action for personal property and because it is a civil
action "not otherwise provided for" as stated in section 13-205. Id.
¶ 46 Initially, we hold that section 13-205 of the Code is the appropriate statute of limitations
to apply in this matter based on the nature of plaintiff's alleged injury in this case. The nature
of plaintiff's alleged injury is that defendant's actions prevented him from receiving the benefits
of owning a percentage of the beneficial interests in the land trusts at issue here. As a
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No. 1-14-3151
beneficiary of the land trusts, plaintiff would be entitled to: " '(1) to possess, manage and
physically control the real estate; (2) to receive all income generated by the property; (3) to direct
the trustee in dealing with title to the real estate; and (4) to receive the proceeds of any sale of the
property made pursuant to the power of direction.' " LaSalle National Bank., 249 Ill. App. 3d at
429-30 (quoting Patrick,129 Ill. App. 3d at 939). Furthermore, plaintiff's beneficial interest is
personal property. In re Estate of Alpert, 95 Ill. 2d at 382. The evidence in the record shows
that defendant and her husband directed the trustee to enter into mortgage agreements, and later,
they attempted to sell the property. These actions infringe upon plaintiff's personal property
rights as an owner of 50% of the beneficial interest in the trusts because plaintiff's ownership
rights would allow him to share the power of direction with defendant in determining how to
direct the trustee actions regarding the mortgage agreements and potential sale of the properties.
Furthermore, the end result of both actions would be that plaintiff, as a beneficiary, would be
entitled to a percentage of either the mortgage proceeds or the proceeds of sale. Section 13-205
of the Code provides for a five-year statute of limitations in "actions *** to recover damages for
injury done to property, real or personal, or to recover possession of personal property or
damages for the detention or conversion thereof." 735 ILCS 5/13-205 (West 2012).
Accordingly, we hold that section 13-205 of the Code is the appropriate statute of limitations to
apply here based on the nature of plaintiff's alleged injury.
¶ 47 Applying section 13-205 of the Code to the evidence presented at trial, we hold that
plaintiff's claim for declaratory relief is barred because he knew, or at the very least should have
known, of the existence of his cause of action outside of the five-year limitation period. Id.
According to the assignments of beneficial interest possessed by plaintiff, he had a 50%
beneficial interest in both trusts, with a shared power of direction with defendant, since February
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No. 1-14-3151
16, 1994. He filed his complaint for declaratory relief in this matter in April of 2013. The
evidence at trial showed that in 2000, plaintiff was served as a defendant in a mortgage
foreclosure action based on mortgages entered into by the trustee with promissory notes signed
by defendant and her husband. Although plaintiff's testimony regarding the foreclosure suit
was initially evasive, he later admitted that he "got served with something." The foreclosure
suit threatened his ownership interest and put him on notice that defendant had directed the
trustee to enter into mortgages secured by the properties held in the trusts. Absent from the
record is any indication that plaintiff received any of the proceeds from the mortgages, despite
his ownership interest in the proceeds of the trust. Furthermore, it shows that plaintiff could
easily have filed his present declaratory action in 2000 in order to secure his share of any
potential proceeds from the impending foreclosure sale.
¶ 48 Regardless of the 2000 foreclosure suit, plaintiff provided further testimony showing that
he knew, or should have known, that his ownership interest in the land trusts were threatened by
defendant's actions outside of the five-year limitation period of section 13-205 of the Code. Id.
First, plaintiff testified that "between 2004, 2005" he learned about a new mortgage taken out by
defendant in 2003. This "[a]nnoyed" him. He testified that "I expressed to them that I was
annoyed. If you're going to take out a loan, why don't you come to me, why don't you talk to me.
Restructure it differently, instead of putting everything on mortgages and keep paying a large
sum of money over a long period of time. It's much easier way to pay back loans than do that."
As plaintiff's testimony shows, defendant's actions in taking out a mortgage in 2003 infringed
upon his ownership rights because plaintiff, as owner of 50% of the beneficial interest in both
trusts, had 50% of the power to direct the trustee to enter into the 2003 mortgage and had the
right to a portion of the proceeds of the mortgage. Most importantly for our purposes here,
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No. 1-14-3151
plaintiff knew of this information in a time period outside of the five-year statute of limitations
provided for in section 13-205 of the Code. Id.
¶ 49 Additionally, defendant testified at trial that in 2006, he met with defendant's husband
regarding the property. Plaintiff explained that he "sat down in 2006 with Angelo and just said
here's money that is owed us, what have you been doing for the building. Here are all these
loans that have been going on. Number one, I realized I was not in a good situation. I hadn't
filed the [assignments of beneficial interest]." Accordingly, the above testimony shows that
plaintiff knew as early as 2006, another time period outside of the five-year limitation period
provided for in section 13-205 of the Code, that he "was not in a good situation" because he had
not lodged the assignments of beneficial interest. Plaintiff's testimony regarding the time
period of 2004 to 2006 show that he knew, or should have known of his injury and its cause.
Therefore, he had an obligation of inquiring further into the situation. See Hermitage Corp.,
166 Ill. 2d at 86 ("We hold, therefore, that when a party knows or reasonably should know both
that an injury has occurred and that it was wrongfully caused, the statute begins to run and the
party is under an obligation to inquire further to determine whether an actionable wrong was
committed." (Internal quotation marks omitted.)). Plaintiff, however, did not do so.
Accordingly, his cause of action is barred pursuant to section 13-205 of the Code. 735 ILCS
5/13-205 (West 2012).
¶ 50 We disagree with plaintiff's contention, and the circuit court's finding, that the statute of
limitations did not begin to run until plaintiff attempted to lodge the assignments of beneficial
interest in 2013. The nature of a land trust agreement is that the trustee acts only when directed
to do so by the beneficiary and for the benefit of the beneficiary. Podvinec, 168 Ill. 2d at 137.
Accordingly, the trustee in this matter did not accept the assignment based on the dispute
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No. 1-14-3151
between the parties, as shown by Roseann Dupass's testimony. Plaintiff's theory of the case is
that defendant assigned him the beneficial interests on February 16, 1994. Based on the
assignments, plaintiff and defendant agreed that they would each have 50% of the beneficial
interest in each trust. In a dispute regarding ownership rights of beneficial interest holders, the
relevant parties are the beneficial interest holders, not the trustee who is merely a representative
of the beneficiaries. See Id. ("Outside of relationships based on legal title, the trustee's title has
little significance."). Therefore, the relevant parties to this dispute, plaintiff and defendant,
were allegedly in agreement in regard to sharing the power of direction of the trusts since 1994.
The 1994 assignment would then give the parties equal say in how to direct the trustee to act. It
follows that plaintiff was put on notice in 2000, and then later in 2004 or 2005, that defendant
was not sharing the power of direction when she entered into mortgages secured by the property.
Plaintiff testified further that, in 2006, he "realized [he] was not in a good situation" because he
had not lodged the assignments. A statute of limitations begins to run "when the party to be
barred has the right to invoke the aid of the court to enforce his remedy." Sundance Homes,
Inc., 195 Ill. 2d at 266. Plaintiff could have filed a similar declaratory judgment action in 2000,
or in 2004 or 2005, or even in 2006, to assert his ownership rights, but did not do so. As
previously discussed, the appropriate statute of limitations is determined by the nature of the
liability. Travelers Casualty & Surety Co., 229 Ill. 2d at 469. In this matter, the nature of the
liability is not that the trustee refused to accept the assignments. Rather, the nature of the
liability is that defendant's actions are not consistent with the parties alleged 1994 agreement to
each receive a 50% beneficial interest in the land trusts. That beneficial interest, in turn, would
give plaintiff a 50% interest in the powers and ownership rights accorded to the beneficiary of an
Illinois land trust.
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No. 1-14-3151
¶ 51 In conclusion, we stress that we do not intend this decision to be interpreted as placing a
time limitation for the lodging of assignments of beneficial interests in Illinois land trusts. We
hold that, under the facts of this case, and the nature of plaintiff's injury here, plaintiff knew, or
should have known of his injury outside the statute of limitations provided for in section 13-205
of the Code. 735 ILCS 5/13-205 (West 2012). The circuit court concluded that plaintiff had
indeed met his burden of proof regarding his right to a 50% beneficial interest in the property,
but the court's analysis could not end there. The statute of limitations as applied to the facts had
to be a factor in the court's analysis. Furthermore, although the circuit court clearly believed
that plaintiff had the better part of the argument and that defendant actively sought to take
plaintiff's 50% beneficial interest unjustly, we must accept the facts as we find them.
Specifically, in this case, regardless of the chicanery by defendant, plaintiff had many
opportunities to meet the statutory obligations in order to protect his interest and yet he failed to
do so within the time allowed by section 13-205 of the Code. Id. Indeed, defendant admits as
much and put the circuit court on notice by filing an affirmative defense. In short, the
defendant's affirmative defense essentially says, even if plaintiff had the 50% beneficial interest
that he claims, he has forfeited that interest. Understandably, the circuit court found this unjust
and sought to give plaintiff his rightful share. Accordingly, defendant's affirmative defense
presented sufficient evidence supporting our holding that plaintiff, knew, or at the very least
should have known, of his injury outside of the statute of limitations.
¶ 52 CONCLUSION
¶ 53 The judgment of the circuit court of Cook County is reversed, and the cause is remanded.
¶ 54 Reversed and remanded.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
STEVEN TOUSHIN,
Plaintiff-Appellee,
v.
GINA RUGGIERO,
Defendant-Appellant,
(First Merit Bank, a National Banking Institution,
Trustee Under Trust Numbers 78-03-2431 and 88-03-5438,
Defendant)
No. 1-14-3151
Appellate Court of Illinois
First District, First Division
August 3, 2015
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Delort and Justice Cunningham concurred in the judgment and opinion.
Appeal from the Circuit Court of Cook County.
The Honorable Mary L. Mikva, Judge Presiding.
Torshen, Slobig, Genden, Dragutinovich and Axel, Ltd., 105 West Adams Street, Suite 3200,
Chicago, IL 60603, (Robert J. Slobig, of counsel), for APPELLANT.
Goldwater & Associates, 30 North La Salle Street, Suite 3200, Chicago, IL 60602,
(Ben Goldwater, of counsel), for APPELLEE. | 01-03-2023 | 08-11-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2439813/ | 560 S.W.2d 505 (1977)
KROGER COMPANY, Appellant,
v.
Ellen CELLAN, Appellee.
No. 1061.
Court of Civil Appeals of Texas, Tyler.
December 22, 1977.
Rehearing Denied January 19, 1978.
*506 James S. Maxwell, Seay, Gwinn, Crawford, Mebux & Blakeney, Dallas, for appellant.
James R. Fry, Nance, Caston, Duncan, Green, Stagner, Fry & Pelley, Sherman, for appellee.
McKAY, Justice.
After consideration of appellant's motion for rehearing, we withdraw our earlier opinion delivered on November 17, 1977, and substitute this opinion in lieu thereof.
This is a personal injury case arising from a fall by appellee in appellant's parking lot. Trial was before a jury which found appellant guilty of negligence which proximately caused appellee's injuries, and judgment was rendered for appellee for damages for pain and suffering and medical expenses. Appellant appeals from that judgment.
Appellee filed suit against appellant alleging that appellant was negligent in (1) creating and maintaining a dangerous and hazardous condition by allowing large cracks to exist in the concrete parking lot when appellant, through its employees, knew or, in the exercise of ordinary care, should have known that customers would be placed in a position of peril in using the parking lot, (2) failing to provide a safe parking lot for customers, and (3) failing to warn appellee of the condition. Appellee asked for damages of $2,629.48 for past medical expenses, $15,000.00 for past pain and suffering, and $15,000.00 for future pain and suffering, all as a result of appellee's fall, which was caused by appellant's negligence.
Defendant answered that there was no defect in the parking lot. In the alternative, appellant alleged that appellee was contributorily negligent in failing to keep a proper lookout and in several other respects which are not before us on appeal. Appellant also alleged that if any defect existed, such defect was open and obvious as a *507 matter of law, that appellee assumed any risk by moving into the area, and that such occurrence was an unavoidable accident.
The evidence was submitted to a jury which found (1) at the time in question Kroger Company maintained the parking lot in a condition which involved an unreasonable risk of harm to persons upon its premises; (2) appellee's fall was proximately caused as a result of her contact with that condition; (3) Kroger Company knew or should have known of the dangerous condition; (4) Kroger Company was negligent in failing to warn appellee of the condition of the parking lot; (5) such negligence was a proximate cause of appellee's fall. The jury did not find that (1) appellee failed to keep a proper lookout, (2) failed to request help and assistance from employees of Kroger Company, (3) failed to wait for employees of Kroger Company to help and assist her, and (4) appellee's failure to release the grocery cart was negligence. The jury found damages in the amounts of $4,250.00 for past and future pain and suffering and $2,657.48 for medical expenses.
Based on these findings, judgment was rendered in favor of appellee in the amount of $6,907.48, from which appellant has perfected this appeal.
We affirm the judgment of the trial court.
On the morning of June 5, 1974, appellee, age 71, and her husband went to appellant Kroger's store at 815 West Crawford Street, Denison, Texas, to purchase certain items. She had been going to this particular store since 1972.
After appellee went through the check-out lane to pay for her groceries, she then proceeded to leave the store through the only available door, pushing her own cart to the car. Once outside the store, Mrs. Cellan made her way through the parking lot where she fell, the cart tumbling down on top of her. There is a dispute in the evidence as to the location of her fall. As a result of the fall, Mrs. Cellan sustained a broken hip. Store employees took appellant to her home and called an ambulance. Appellant later brought this suit to recover damages resulting from her fall.
Appellant brings six points of error. Point 1 complains that the trial court erred in failing to disregard the jury's answers to issues 1, 2, 3, 4 and 5 because there was no evidence to support these findings. Point 2 complains that such findings on these same issues were without sufficient evidentiary support, and contrary to the great weight and preponderance of the evidence. Point 4 says there was no evidence to support the answers of the jury to issues 6 and 7. A "Motion for Judgment Non-Obstante Veredicto or Motion to Disregard Certain Special Issues" was filed of record in the case, but nowhere does it appear of record that the court acted upon said motion. Appellant, therefore, complains of a nonexistent error of the trial court.
However, the liberal rebriefing procedures provided by the Rules of Civil Procedure would permit appellant Kroger Company to amend its brief and properly present its points of error. Texaco, Inc. v. Joffrion, 363 S.W.2d 827, 830 (Tex.Civ.App. Texarkana 1962, writ ref'd n. r. e.); Tex. R.Civ.P. 422, 429, 431 and 437. We will assume that appellant has properly preserved both his legal and factual insufficiency points of error by directing us to an alleged error of the trial court. Nevertheless, appellant's points of error are multifarious. A point of error which embraces more than one specific ground of error or which attempts to attack several distinct and separate rulings of the trial court will be considered multifarious, in violation of Rule 418, and not entitled to review. Pine v. Gibraltar Savings Assn., 519 S.W.2d 238, 244 (Tex.Civ.App.Houston [1st Dist.] 1974, writ ref'd n. r. e.); Blackmon & Associates, Inc. v. Palmer Buildings Supplies & Specialties, Inc., 463 S.W.2d 228, 231 (Tex. Civ.App.Corpus Christi 1971, writ ref'd n. r. e.); International Security Life Ins. Co. v. Howard, 456 S.W.2d 765, 766 (Tex.Civ.App. Waco 1970, writ ref'd n. r. e.). Appellate courts have given a liberal interpretation of the rules in favor of the sufficiency of an appellant's brief and frequently consider general and multifarious points of error *508 where, from the statements and arguments under the point, the nature of appellant's complaint can be determined. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943); Airport Coach Service, Inc. v. City of Fort Worth, 518 S.W.2d 566, 573 (Tex.Civ.App.Tyler 1974, writ ref'd n. r. e.). Therefore, giving appellant's points of error 1 and 2 a liberal interpretation, we will consider them.
In considering appellant's contention that there is no evidence to support the jury's findings to special issues 1, 2, 3, 4 and 5 we may consider only the evidence and inferences in support of the jury's finding, while disregarding all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We hold that there is evidence to support the jury's findings to special issues 1, 2, 3, 4 and 5. Appellant's point 1 is overruled.
In examining the factual sufficiency of the evidence to support the jury's findings to special issues 1, 2, 3, 4 and 5, we must consider the whole record to determine if the jury's answer is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). After a review of the entire record and after having weighed and balanced all the evidence, both that in favor of and against the verdict, we are of the opinion that we would not be justified in concluding that the findings of the jury in regard to special issues 1, 2, 3, 4 and 5 were so clearly against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. Point 2 is overruled.
In Point 3 appellant states that the trial court erred in failing to find that the cracks in the parking lot were "open and obvious" as a matter of law. We disagree.
An occupier has no duty to a business invitee if the condition is so patently open and obvious that the invitee will be charged with knowledge of the condition. Scott v. Liebman, 404 S.W.2d 288, 293 (Tex. 1966); Wesson v. Gillespie, 382 S.W.2d 921 (Tex.1964); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963). Appellant directs us to several cases which would attempt to bring the facts of this case within the above rule. See Marshall v. San Jacinto Building, Inc., 67 S.W.2d 372 (Tex.Civ.App. Beaumont 1933, writ ref'd); Beall Brothers, Inc. v. Benton, 478 S.W.2d 157 (Tex.Civ. App.Tyler 1972, no writ); H. E. Butt Grocery Co. v. Israel, 544 S.W.2d 769 (Tex. Civ.App.Waco 1976, no writ). However, none of the cases deal squarely with the facts with which we are confronted.
Although appellee had shopped at the particular store many times, there was no showing that she had been over the portion of the parking lot containing the defect on any previous occasion. The crack in the parking lot was not a static condition, such as a slab or a mat in an entrance to a building. Appellant's assistant manager, Mr. Blazek, testified that the crack could not be seen unless one were right upon it. In addition, appellee testified that she was watching for moving vehicles in the parking lot. Such actions are a necessity in any parking lot. We, therefore, hold that the cracks in the parking lot were not so open and obvious as to charge one with knowledge of their existence. The point is overruled.
Appellant's point 4 is defective in the same respects as were points 1 and 2. Therefore, as with points 1 and 2, we will consider it based on a liberal interpretation of the rules in favor of the sufficiency of an appellant's brief.
Appellant contends in point 4 that there is no evidence to support the jury's answers to special issues 6 and 7 that appellee did not fail to keep a proper lookout. A party with the burden of proof on an issue who receives an adverse jury finding should properly complain of the legal sufficiency of the evidence with "as a matter of law" terminology. Prunty v. Post Oak Bank, 493 S.W.2d 645 (Tex.Civ.App.Houston [14th Dist.] 1973, writ ref'd n. r. e.).
Considering only the evidence and inferences in support of the jury's answers *509 to special issues 6 and 7, while disregarding all evidence and inferences to the contrary, we hold that there is some evidence to support those answers. Appellant's point 4 is overruled.
Point 5 complains that the trial court erred in overruling appellant's motion for new trial because the jury's answers to special issues 6 and 7, concerning whether appellee failed to keep a proper lookout, were against the great weight and preponderance of the evidence. We must look at the whole record to determine if the jury's answer is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). After a review of the entire record and after having weighed and balanced all the evidence, both that in favor of and against the verdict and judgment, we are of the opinion that we would not be justified in concluding the findings of the jury in regard to special issues 6 and 7 were so clearly against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. Point 5 is overruled.
By Point 6 appellant complains that the trial court refused to grant its motion to reopen for the purpose of introducing further evidence.
At any time before completion of a trial the trial court may permit additional evidence to be offered where it clearly appears to be necessary to the due administration of justice. Rule 270, T.R.C.P. It is within the sound discretion of the court to allow a party to reopen his case after having rested it. Binford v. Snyder, 144 Tex. 134, 189 S.W.2d 471, 476 (1945); Wofford v. Miller, 381 S.W.2d 640 (Tex.Civ.App.Corpus Christi 1964, writ ref'd n. r. e.). Further, there must be a showing of diligence upon the part of the moving party in making such a request. Highlands Underwriters Insurance Company v. Martin, 442 S.W.2d 770, 772 (Tex.Civ.App.Beaumont 1969, no writ). Appellant made an attempt in its bill of exception to show diligence was used in timely obtaining evidence sought to be offered. The witness appellant sought to use if permitted to reopen was a Kroger checker who checked appellee's groceries on the day of her fall. The checker was an employee of appellant and apparently available to appellant's counsel at all times. We hold that appellant failed to demonstrate due diligence on its part in producing this evidence at the trial before the close of the evidence. It also appears that any additional testimony would have been merely cumulative of testimony already adduced.
We hold that the refusal of the trial court to reopen the testimony was not an abuse of its discretion and that the additional testimony was not necessary to the due administration of justice.
Appellant's motion for rehearing is overruled, and the judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2465268/ | 882 S.W.2d 219 (1994)
Roselyn and Dorvin GREEN, Appellants,
v.
Sheldon FLEISHMAN, D.P.M., Upjohn Healthcare Services, Inc., and Caremark, Inc., Respondents.
No. WD 48233.
Missouri Court of Appeals, Western District.
June 21, 1994.
Motion for Rehearing and/or Transfer Denied August 2, 1994.
Application to Transfer Denied September 20, 1994.
*220 Robert D. Kingsland, Thomas R. Davis, Dempsey & Kingsland, Kansas City, for appellants.
G. Keith Phoenix, Carolyn L. Trokey, Sandberg, Phoenix & von Gontard, St. Louis, for respondent-Caremark, Inc.
John W. Cowden, Mary C. O'Connell, Baker, Sterchi & Cowden, Kansas City, for respondent-Upjohn Healthcare Services.
Steven G. Emerson, Melody L. Nashan, Watson, Ess, Marshall & Enggas, Kansas City, for respondent Sheldon Fleishman, D.P.M.
Before LOWENSTEIN, P.J., and BERREY and SPINDEN, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied August 2, 1994.
LOWENSTEIN, Presiding Judge.
Roselyn Green and her husband, Dorvin Green, appeal from an order of the trial court granting a directed verdict in a medical negligence case, on behalf of defendants Sheldon Fleishman, D.P.M., Upjohn Healthcare Services, Inc., and Caremark, Inc. The Greens contend the trial court first erred by striking the testimony of their only expert witness on the issue of causation and then granting a directed verdict.
The core issue on appeal is the court's striking of plaintiffs' expert's trial testimony, which opined medical negligence by the defendants, which came without explanation over one year following the expert's deposition where, when asked the same question, he reached no opinion as to negligent treatment or care.
In April, 1988, Roselyn Green was hospitalized for a foot infection at the Medical Center of Independence, where her treatment was managed by Steven Gialde, D.O. and respondent, Dr. Fleishman, a podiatrist, who acted as a consultant. As part of her treatment, Mrs. Green was given periodic dosages of gentamicin, an antibiotic, the use of which may result in possible toxic side effects. During her hospitalization, Mrs. Green was monitored to ensure that the levels of the drug in her blood were safe.
After eleven days of hospitalization, Mrs. Green continued the intravenous gentamicin therapy at home under the supervision of home health care providers, Upjohn Healthcare Services, Inc. and Caremark Inc. The defendant, Caremark, acted as the pharmacy and compounded the medication; the defendant, Upjohn's role as home healthcare agency, was to visit the home 3 days per week and, as relevant here, help with out-patient administration of medication. Despite the fact that Mrs. Green was receiving gentamicin at the same dosage and frequency as she received at the hospital, Gialde did not order out-patient monitoring to ensure that the quantity of the drug in her system did not exceed safe levels. As stated in the previous paragraph, gentamicin is a powerful drug which may accumulate in the blood with toxic effects, which then outweigh its therapeutic effect.
On May 10, 1988, after seventeen days of unmonitored home gentamicin therapy, Mrs. Green suffered a spell of dizziness and a loss of balance. These problems persisted and the Greens filed this petition alleging medical negligence for Mrs. Green's permanent dizziness and disequilibrium, loss of consortium, and sought damages from Dr. Fleishman, Dr. Gialde, Upjohn Healthcare Services, Inc., and Caremark, Inc. The basic theory of the lawsuit was Mrs. Green should have been monitored for toxic side effects of gentamicin following her hospitalization and that all the defendants owed her a duty to monitor. Dr. Gialde subsequently settled with the Greens for $425,000.00.
Dr. Larry Rumans, the Greens' medical expert on the issue of causation, was deposed prior to trial. During his deposition, Dr. Rumans was asked numerous questions about the dosages of gentamicin and the relationship of the drug to Mrs. Green's condition:
Q. [DEFENSE COUNSEL]: And, in fact, sir, are you able to point to anything in the medical records that suggests that Mrs. Green's blood levels of this medication exceeded the maximum therapeutic level?
A. [DR. RUMANS]: Not during her hospitalization.
Q. Are you able to point to anything which would suggest that if those blood *221 levels were on the low side, given the certain dosage of Gentamicin during hospitalization, that they would have been expected to exceed therapeutic levels during out-patient therapy?
A. Well, the whole point is, Mr. Emerson, that we have no data as to what occurred as an outpatient, and so it is all speculation.
Q. That really is my point, I guess. You are not rendering an opinion, are you, that Mrs. Green's imbalance problems resulted from concentrations of Gentamicin in her blood that exceeded maximum therapeutic levels, are you?
A. Well, you see that is just it. We don't know.
Q. Well, that is my question, you are not suggesting that, are you?
A. I am not necessarily suggesting it, but I am saying that it could have happened.
Q. Okay. My question is whether or not you hold an opinion within a reasonable degree of medical certainty as to whether or not Mrs. Green's blood levels of Gentamicin exceeded the maximum therapeutic or the allowable therapeutic doses while she was an outpatient?
A. I have no opinion.
Q. Okay. My next question is whether you hold an opinion within a reasonable degree of medical certainty as to whether the ototoxic effects, which you believe Mrs. Green suffered, resulted from excessive blood levels of Gentamicin?
A. I believe that the ototoxicity that was experienced occurred as a result of excessive aminoglycosides, accumulation and concentration at the site where toxicity occurred, and that may have been related to excessive blood levels.
Q. Do you have any objective evidence whatsoever to support your speculation that there may have been excessive levels of Gentamicin?
A. Well, again, I have to go back. There is no data, Mr. Emerson.
Q. Okay.
A. So that my speculation it occurred is just as good as anyone's speculation that it didn't occur.
Q. And you wouldn't hold out that speculation as being an opinion with a reasonable degree of medical certainty, would you?
A. No, sir. (Emphasis added).
At trial, approximately fourteen months later, Dr. Rumans was asked whether Mrs. Green had toxic levels of gentamicin in her system:
Q. Given the data that you have, all the data with regard to Roselyn Green's tolerance of the drug in the hospital setting and the fact that no laboratory monitoring was done during the 17-day period and your testimony that Gentamicin levels increase in the body with time and with additional dosages, does that data provide you with an inferential basis which allows you to determine, within a reasonable degree of medical certainty, as to whether the levels of Gentamicin went into the toxic range during that 17-day period?
A. I believe that it's likely that the levels did increase to a toxic range.
After the Greens had presented their evidence on the issue of liability, the defendants moved to strike Dr. Rumans' trial testimony on the grounds that it differed from his deposition testimony and constituted an unfair surprise. The motion was granted by the trial court, which ordered that "the testimony of Larry Rumans, M.D. relating to whether the plaintiff's blood levels of gentamicin exceeded the maximum therapeutic or allowable levels be stricken." All the defendants then moved for a directed verdict which was granted.
On appeal, the Greens claim that the trial court erred by striking Dr. Rumans' trial testimony relating to excessive blood levels of gentamicin and by directing a verdict in favor of the defendants.
When an expert witness has been deposed and later changes that opinion before trial or bases that opinion on new or different facts from those disclosed in the deposition, "it is the duty of the party intending to use the expert witness to disclose that new information to his adversary, thereby updating the responses made in the deposition." *222 Gassen v. Woy, 785 S.W.2d 601, 604 (Mo.App.1990). The source for sanctions is within Rule 56.01(b)(4) which covers discovery of opinions of experts, and in (e)(2) to seasonably amend responses when appropriate. Id. at 603. A trial court is vested with broad discretion as to its choice of a course of action during trial when evidence has not been disclosed in response to appropriate discovery, and in the sound exercise of its discretion the trial court may reject such evidence or impose other appropriate sanctions. Id. at 604.
The Gassen suit was a medical malpractice case where an expert for the defendant who had not seen the critical X-rays prior to deposition, was called to testify at trial after having examined this evidence. The plaintiff correctly claimed surprise, but was given the opportunity by the court to interview the expert prior to the expert taking the stand. The plaintiff rejected this relief. The court then allowed the witness to testify, and this court held that ruling was not an abuse saying, "The very nature of the discretion vested in the trial court recognizes that each case must be determined on its own peculiar facts which bear on the question of whether that discretion has been abused." Id.
The case of State Ex Rel. State Highway. Com. v. Pfitzinger, 569 S.W.2d 335 (Mo.App.1978) points out the trial court's latitude in this area, and how the harsh sanctions of striking an expert's testimony may be upheld. The real estate expert for the condemnor had by deposition in 1976 relied on a method of valuation that had been disallowed by the Supreme Court in 1974. Id. at 336. Two days prior to trial, the expert reworded an opinion on value using an altogether different, but judicially sanctioned method, "comparable sales," and the trial court did not permit this evidence. The Eastern District, relying on Rule 56.01(b)(4)(b) concluded the landowner was entitled to discover the opinion, and under Rule 61.01(d)(1), the trial judge was justified in not allowing an opinion brought in at the last minute, "based on an entirely different method of appraisal...." Id. at 336.
Case law from other jurisdictions also deems it appropriate to exclude expert testimony in circumstances similar to those in the case at bar. In Bart v. Union Oil Co. of California, 185 Ill.App.3d 64, 132 Ill. Dec. 848, 540 N.E.2d 770 (1989), app. denied 128 Ill. 2d 661, 139 Ill. Dec. 510, 548 N.E.2d 1066 (1989) a woman filed suit to recover damages for her husband's death stemming from two explosions in an oil refinery. In his deposition, the plaintiff's expert witness stated that he could not determine within a reasonable degree of medical certainty whether the decedent had experienced any conscious pain and suffering. Then, at trial, the witness testified that the decedent may have survived the first explosion and suffered pain prior to his death. However, he also testified that it was equally probable that the decedent may not have sustained injury prior to the second explosion. The Illinois Court of Appeals determined that the witness' trial testimony was improperly admitted because it was inconsistent with his deposition testimony.[1] In another Illinois decision, the court in Mazur v. Lutheran General Hosp., 143 Ill.App.3d 528, 97 Ill. Dec. 580, 586-87, 493 N.E.2d 62, 68-69 (1986), the court did not allow a medical expert to testify on causation where in his deposition answers he said he could not reach a conclusion because "... there is virtually no information charted about the patient's medical condition, that the cause ... has to be a matter of conjecture." See also Lee v. Ingalls Memorial Hosp., 238 Ill.App.3d 154, 179 Ill. Dec. 328, 606 N.E.2d 160 (1992).
In the case at bar, this court is unable to conclude that the trial court abused its discretion by striking Dr. Rumans' trial testimony. On review, this court does not sit as a second trial judge on whether the same sanctions would have been imposed. The sole task is to determine whether the trial judge could have reasonably concluded as he did. Under the totality of the circumstances in this case, this court is not prepared to proclaim an abuse of discretion. Hurlock v. Park Lane Medical Center, Inc., 709 S.W.2d *223 872, 879 (Mo.App.1985). In this case, there was no new fact introduced which would have altered the deposition opinionthere was simply a 180 degree change from no opinion to one of negligence.
Judicial discretion is abused when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Anglim v. Missouri P.R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992) cert. denied ___ U.S. ___, 113 S. Ct. 831, 121 L. Ed. 2d 701 (1992); Meeker v. Shelter Mutual Ins. Co., 766 S.W.2d 733, 740 (Mo.App.1989). In the case at bar, the propriety of the trial court's decision, though harsh, is within the bounds of reasonable debate; accordingly, the trial court did not abuse its discretion.
With Dr. Rumans' testimony stricken from the record, the Greens failed to make a submissible case that Mrs. Green's injuries were the result of the defendants' failure to monitor her blood level of gentamicin. Because the record is left devoid of expert testimony establishing that Mrs. Green had excessive levels of gentamicin in her system, the Greens failed to prove that monitoring would have alerted the defendants to a potential toxicity problem so that they could have averted the onset of her disequilibrium condition. Thomas v. Myers, 655 S.W.2d 695, 699 (Mo.App.1983).
In order to make a submissible case in a medical malpractice action, the plaintiff must establish a causal connection between the act or omission of the defendant and the injury which the plaintiff received. Engelbert v. Flanders, 670 S.W.2d 19, 22 (Mo.App.1984). The Greens failed to do this in the case at bar. Even reviewed under the heightened scrutiny in reviewing the granting of a directed verdict, Baker v. Gordon, 759 S.W.2d 87, 91 (Mo.App.1988), the trial court did not err in granting a directed verdict in favor of the defendants.
In their final point, the Greens claim the trial court erred by granting a directed verdict because they Greens had made a submissible case of medical malpractice against Dr. Fleishman on the grounds that he had negligently concurred in the initial prescription of gentamicin even though less toxic alternatives were available.
It was incumbent on the plaintiffs to prove by expert testimony that Dr. Fleishman's conduct did not conform to the standards of his profession. Hurlock, 709 S.W.2d at 883. Because there was no expert testimony that Dr. Fleishman's concurrence in the prescription of gentamicin failed to meet the required standard of care, the Greens did not make a submissible case on this issue. Kinser v. Elkadi, 674 S.W.2d 226, 229-230 (Mo.App.1984). The point is denied.
The judgment of the trial court is affirmed.
All concur.
NOTES
[1] The holding in Bart relies upon an Illinois Supreme Court Rule which provides that an expert witness' trial testimony may not be inconsistent with the opinions disclosed in any previous deposition testimony. This rule is functionally equivalent to the rule of Gassen v. Woy, 785 S.W.2d 601 (Mo.App.1990). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2465275/ | 401 S.W.2d 361 (1966)
STATE of Texas, Appellant,
v.
W. H. DICKSON et al., Appellees.
No. 4425.
Court of Civil Appeals of Texas, Waco.
March 3, 1966.
Rehearing Denied March 24, 1966.
Second Motion for Rehearing Denied April 7, 1966.
Waggoner Carr, Atty. Gen., of State of Texas, Carroll Graham, Asst. Atty. Gen., Austin, for appellant.
McKool & McKool, Les King, Dallas, Martin & Martin, Hillsboro, for appellees.
McDONALD, Chief Justice.
This is a condemnation case wherein the State of Texas condemned 18.64 acres of land (together with a drainage easement of.92 of an acre), out of a 191 acre tract *362 owned by defendants. Trial to a jury resulted in a verdict of $5868 for the land taken, and $36,175 damage to the remainder. The trial court rendered judgment on the verdict for defendants for $7645 ($42,043 less $34,398 deposited by the State after award by the Commissioners).
Plaintiff appeals, contending:
1) The action of defendants' attorney in qualifying the witnesses Russell and Cypert, before the jury, was highly prejudicial and caused the rendition of an improper verdict.
2) The action of defendants' attorney in introducing the income of the property before the jury was highly prejudicial and caused the rendition of an improper verdict.
3) There is no evidence, or insufficient evidence, to support the jury's verdict; such verdict is against the great weight and preponderance of the evidence; and is excessive.
Plaintiff's first contention is that defendants' attorney's action in qualifying the witnesses Russell and Cypert before the jury was prejudicial and caused the rendition of an improper verdict. Both Russell and Cypert had acted as Special Commissioners in the commission phase of the instant case. Defendants called Russell and Cypert to testify as to their opinions of the value in the trial in County Court. Counsel for defendants asked the witness Russell if he was familiar with the Dickson property and Russell replied he had known it all his life. Counsel for defendants then asked Russell who he went on the property with in the latter part of 1961. Russell answered that it was with Mr. Dick Spencer; and in answer to a question as to who he was, answered that he was an engineer with the Highway Department. Substantially the same testimony was elicited from the witness Cypert. Plaintiff contends that this created an impression in the minds of the jurors that these witnesses had actually made an appraisal for the Highway Department.
Plaintiff did not object to the testimony of the witness Russell. Plaintiff did object to the testimony of the witness Cypert and the entire testimony of Cypert was struck by the trial court. The contention is without merit.
Plaintiff's 2nd contention is that defendants' attorney's action in introducing the income of the property before the jury was prejudicial and caused the rendition of an improper verdict. The witness Wilson testified that he had been appraising land for some thirty years; that he appraised the defendants' property; that he had valued the farm from the market data of comparable sales approach; that he used the income approach to check his conclusions. He then testified to the income of the farm for the years 1959, 1960 and 1961. Objection by plaintiff's counsel to the foregoing was overruled by the trial court. Thereafter the witness Wilson's written "Appraisal Report," which contained all of the income figures for 1959, 1960 and 1961 was introduced into evidence without objection. Under the record, we think the evidence as to the past income from the property admissible; but in any event plaintiff waived his objection to same by permitting the same evidence to be later introduced without objecting thereto.
Plaintiff's 3rd contention is that there is no evidence or insufficient evidence to support the verdict; that the verdict is against the great weight and preponderance of the evidence; and is excessive.
This case involves a taking of 18.64 acres out of a 191 acre tract; plus a drainage easement of .92 of an acre. The taking of the 18.64 acres split the tract diagonally, leaving 56 acres burdened by the .92 acre easement on the north side of the freeway, and 112 acres on the south side of the freeway. The farm was being used as a dairy farm at the time of the taking, which was its highest and best use. The jury found the value of the land taken to be $5868 (or approximately $300 per acre); and found the value of the remainder before the taking *363 to be $72,675; and the value after the taking $36,500, (making a $36,175 damage to the remainder). There is evidence that after the taking, the water through the channel easement caused a ditch to be washed out so the land could not be cultivated; that the grasses below the easement were covered and killed by silt; that after the taking, the unit became too small to operate as a dairy farm and that as a result the highest and best use changed to a row crop operation; that the severance left the barn and improvements on one side of the freeway, and the pasture on the other side; and that as a result the improvements depreciated in value. There is evidence of other sales in the area of up to $325 per acre.
Defendant testified the property taken had a value of $5,868; and that the remainder had a value of $81,900 before the taking; and a value of $40,015 after the taking. The expert appraiser Wilson testified the market value of the land taken to be $5600; and the value of the remainder before the taking $61,000; and $32,700 after the taking. The witness Russell valued the land taken at $5869; the remainder before the taking at $76,182; and after the taking at $47,656. The witness George Dickson valued the land taken at $5868; the remainder before the taking at $81,900; and after the taking at $40,015. The plaintiff's witness placed a value on the land taken of $3830; the remainder before the taking of $43,930; and after the taking of $36,550.
A jury in matters of this kind may weigh, consider and accept the opinions as to value, or it may form its own opinion from the evidence and by utilizing its own experience and matters of common knowledge. See McCarthy v. City of Amarillo, Tex.Civ.App., (n. r. e.), 307 S.W.2d 595; Roberts v. State, Tex.Civ.App., (n. w. h.) 350 S.W.2d 388.
We think the evidence ample to sustain the verdict, and that such is not against the great weight and preponderance of the evidence, or excessive.
All plaintiff's points and contentions are overruled.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440045/ | 427 S.W.2d 213 (1967)
COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant,
v.
M. W. THOMAS et ux., Appellees.
Court of Appeals of Kentucky.
December 15, 1967.
As Modified on Denial of Rehearing May 10, 1968.
Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort, Richard Weisenberger, Dept. of Highways, Paducah, for appellant.
Ben B. Wright, Hopkinsville, for appellees.
EDWARD P. HILL, Judge.
In this case the novel question is presented concerning the right of riparian or littoral landowners to recover for the destruction or impairment of their access to Barkley Lake by reason of the construction by appellant of a roadway, also by a fill across an inlet bordering on the landowners' property. The courts of the states are about equally divided in interpreting the law on this question.
*214 The judgment appealed from awarded appellees $18,000 damages, from which only the Commonwealth appeals. The award of the county court commissioners was $7500.
Appellees own an 18-acre "lakeside development" tract of land on Barkley Lake. Appellant is taking 1.87 acres for a road right of way. An additional 0.725-acre section is severed from the main tract and is left between the new road and the lake.
The west side of appellees' land fronts the main body of Barkley Lake. The north side fronts on a shallow inlet or cove known as Terrapin Creek Bay. A high earthen fill was planned across said Bay (which by now no doubt has been completed) so that the portion of appellees' land fronting on Terrapin Creek Inlet will have no access by water to Barkley Lake. The culvert at Terrapin Creek is too small for the passage of boats. So the small portion of land taken (less than two acres) has not grieved appellees nearly as much as the taking of their access from their lots adjoining Terrapin Creek Bay to the main body of the lake.
Appellants contend on this appeal that inasmuch as the land on which the fill across Terrapin Creek was constructed was not the land of appellees, they are in no position to complain; that appellees are not entitled to compensation for loss of access to Barkley Lake; and that the verdict is excessive.
On the first argument advanced by appellant, it may be said as a general proposition in highway condemnation cases that "recovery for diminution of value suffered by virtue of construction and operation of adjacent public works is usually not allowed when no part of the property is deemed to have been taken." Orgel on Valuation under Eminent Domain, vol. 1, 2d, § 54, p. 254. Appellant cites a number of cases involving the taking of land for highway purposes, which particularly refer to questions of rerouting of highways, loss of profits, inconvenience, rerouting of traffic, and loss of access. But these cases are of little assistance in determining the riparian rights of appellees herein.
We turn now to the question of the riparian or littoral rights, if any, of appellees. In doing so, our research leads us immediately to a jungle of confusion and inconsistencies. As proof of this statement, it is written in 93 C.J.S. Waters § 6, p. 606, that:
"The common-law rules as to riparian rights exist in a number of jurisdictions, but have been modified in some, while in others riparian rights have been abolished or do not exist."
In Nichols on Eminent Domain, 3d, vol. 2, Riparian Rights, § 5.79, p. 223, it is said: "There is very little uniformity in the decisions as to what constitutes a compensable interference with or destruction of the rights of a riparian proprietor."
Riparian rights in the various states of this Union have been further confused by public rights and regulations. 65 C.J.S. Navigable Waters § 61.
We now take a look at some of the decisions denying recovery to riparian proprietors. First in this category is United States v. Rands et ux., 389 U.S. 121, 88 S. Ct. 265, 19 L. Ed. 2d 329, decided November 13, 1967. Rands owned land on the Columbia River in the state of Oregon. It was taken by the United States in connection with the John Day Lock and Dam Project as a part of the comprehensive plain for the development of the Columbia River. The Supreme Court denied a recovery for the value of Rands' port site. His recovery was limited to the diminution in the value of his fast lands, disregarding the value of his port site. The U.S. Supreme Court said:
"But `just as the navigational privilege permits the Government to reduce the value of riparian lands by denying the riparian owner access to the stream without compensation for his loss, it also permits the Government to disregard the value arising from this same fact of *215 riparian location in compensating the owner when fast lands are appropriated.' United States v. Virginia Elec. & Power Co., 365 U.S. 624, 629, 81 S. Ct. 784, 788, 5 L. Ed. 2d 838 (1961)."
As recently as October 3, 1967, in Colberg, Inc. v. State ex rel. Department of Public Works, 62 Cal. Rptr. 401, 432 P.2d 3, California denied recovery to the riparian proprietors, Colberg and Stephens. For sixty years they had owned and conducted shipyards for the construction and repair of yachts and ocean-going vessels on the Stockton Deep Water Ship Channel, a navigable tidal waterway extending from the mouth of the San Joaquin River to the Port of Stockton.
It should be noted in this connection that while California has a constitution similar to our own, requiring "just compensation" for land taken for public use, yet the "State of California holds all of its navigable waterways and lands lying beneath them `as trustee of a public trust for the benefit of the people.'" The interference by the state, giving rise to the litigation, consisted of the construction of a bridge arching 45 feet above the water line so that most ocean-going vessels could not get to plaintiffs' shipyards.
In denying recovery, the California court said in Colberg, supra, 432 P.2d at page 11:
"As we have shown above, the power of the State of California to deal with its navigable waters, though subject to the superior federal power, is considerably wider in scope than that paramount power. The state, as owner of its navigable waterways subject to a trust for the benefit of the people, may act relative to those waterways in any manner consistent with the improvement of commercial traffic and intercourse. We are of the further view that the law of California burdens property riparian or littoral to navigable waters with a servitude commensurate with the power of the state over such navigable waters, and that `when the act [of the state] is done, if it does not embrace the actual taking of property, but results merely in some injurious effect upon the property, the property owner must, for the sake of the general welfare, yield uncompensated obedience.' (Gray v. Reclamation District No. 1500, supra, 174 Cal. 622, 636, 163 P. 1024, 1030)."
Taking its place along with the Supreme Court of the United States and the state of California, our own sister state of Ohio held in State ex rel. Anderson v. Masheter, 1 Ohio St. 2d 11, 203 N.E.2d 325 (1964), that a riparian proprietor operating a marine terminal on the Maumee River could not recover damages to his business occasioned by the construction of a low-level bridge several thousand feet downriver from his property. The court said on page 328 of 203 N.E.2d:
"Where the construction of a bridge across a navigable stream is properly authorized, riparian owners who have access to the navigable part of the stream but who are cut off from navigation to and from the outside world have no constitutional right to compensation."
To the short majority opinion in Masheter, supra, Judge Herbert wrote an exhaustive dissent, in which he took the position that Masheter was not founded upon Ohio case law precedent.
Other states, including the so-called arid midwestern states, have followed the line of authorities denying recovery to riparian proprietors in cases similar to the one at bar.
States that have taken the opposite view and allowed recovery for impairment of riparian rights include: Florida, Tennessee, Virginia, Ohio, Michigan, Oregon, Washington, our own state of Kentucky, and many others. See 65 C.J.S. Navigable Waters § 67, note 33.
All the authorities agree that riparian rights in navigable waters are held in subordination to the right of the public to *216 navigate such waters and to make improvements in aid of such navigation. Before the construction of Barkley Dam and the resulting formation of Barkley Lake, the Cumberland River in the vicinity of the property here involved was a navigable stream. Consequently, Barkley Lake is a navigable body of water, including all of its bays and inlets. But the fill in question in the present case is in no way or manner an "aid or improvement" of navigation.
We turn now to consider some of the authorities which recognize access rights of riparian owners. In 18 Am.Jur., Eminent Domain, § 166, pp. 798, 799, it is stated:
"The cases are almost unanimous in holding that, except when the rights of the government are involved, the riparian right of access to the navigable part of the river is property which cannot be taken or damaged for the public use without compensation, and that the destruction of access by the construction of a railroad, highway, or other public work in the submerged bed of the river between the channel and the upland is a taking of property in the constitutional sense, even though the bed belongs to the state and the work be done by legislative authority."
We find a factual situation practically identical to the case at bar in Webb v. Giddens, Fla., 82 So. 2d 743 (1955). The plaintiff in Webb owned a boat dock on a small arm of a navigable landlocked lake. The state road department constructed a fill and culvert across the arm of the lake, thereby preventing boats from going to the main body of the lake from plaintiff's boat dock. In the following language the Florida Supreme Court held that the fill constituted an impairment of plaintiff's riparian right of access to the lake proper:
"Obviously, he (plaintiff) has a right of ingress and egress from his lands into the water immediately adjacent thereto. But the record shows, in accordance with the findings in this case, that this right would be virtually meaningless unless he were allowed access to the main body of the lake."
The rule in Webb, supra, was reaffirmed in Moore v. State Road Department, Fla., 171 So. 2d 25 (1965).
While this court has never been presented with the exact delicate question involved in the present case, it did decide in Natcher v. City of Bowling Green, 264 Ky. 584, 95 S.W.2d 255, 260, that Natcher, a riparian owner of land upstream from the city of Bowling Green, could recover from the City as a result of the construction of a dam by the City that raised the water level over the gravel bar of Natcher. In Natcher this court said:
"We are therefore constrained to hold that the erection of the dam was not under the dominant proprietary power of the city in the stream `to improve or preserve navigation,' which had been conferred upon it by the state.
* * * * * *
"The flooding and submersion of appellant's gravel beds was a direct encroachment upon their land, and restricted, if it did not actually exclude, their dominion or control over it. This constituted a taking of private property by the city, and it must make compensation as required by sections 13 and 242 of the Constitution of Kentucky."
Let us keep in mind that the riparian rights of the land owned by appellees were created by the U. S. Government in the construction of Barkley Lake and the impounding of the water of the Cumberland River above the dam. It is simple logic that as soon as it became generally known that Barkley Dam was to be constructed and the high-water mark determined, appellee's property, like thousands of other acres of land adjoining artificial lakes in the Commonwealth, enjoyed a fantastic increase in value. The value is there; it is recognized by the buyer, the seller, and everyone else.
*217 It occurs to this court that the question in this case has weighty public policy considerations. This Commonwealth has more miles of navigable rivers than any other inland state in the Union (including the tortuous Cumberland, which raises its head in John Fox, Jr., country, the mountains of south-eastern Kentucky, snakes its way south into the state of Tennessee before becoming homesick for its native land and streaking north to entirely embrace its mother state before spending itself in the beautiful Ohio). The construction of numerous multipurpose dams has provided the fair state of Kentucky with more miles of lake shore line than any other state, with the possible exception of Minnesota. (Approximately 6,000 miles of shore line, containing 180,000 acres of surface water, and more dams are being built.) Industry is moving into our State at an accelerated rate. The population is increasing. Leisure time is also increasing with automation, resulting in greater demand for recreation. All of this tends to increase the value of land with access to our lakes. This court will not blindly disregard such obvious facts existing in this Commonwealth in regard to value of land suitable for camp sites fronting on public lakes with recreational facilities, and practically all of them enjoy such facilities.
We have concluded that riparian landowners have the right of a reasonable access to the entire body of water on which their land borders; that such right has value; and that before the State may take or impair such right, it must pay the owner just compensation therefor.
The recent Supreme Court decision in United States v. Rands, supra, states:
"And, in River Rouge, it was recognized that state law may give the riparian owner valuable rights of access to navigable waters good against other riparian owners or against the State itself."
Cf. United States v. River Rouge Improvement Co., 269 U.S. 411, 418, 419, 46 S. Ct. 144, 70 L. Ed. 339 (1926).
Having reached this conclusion, there remains the question of whether or not the amount of the verdict is excessive.
Appellees' maps indicate their property has been laid off into a subdivision containing 57 lots, 13 of which front on Terrapin Creek Bay. Appellees' seven witnesses were duly qualified according to accepted rules and they were experienced. Their differences in the before and after value ranged from $21,000 to $28,000. We cannot escape the feeling that the amount of the verdict is most liberal. Neither can we conclude at first blush that bias, passion, or prejudice influenced it.
On Petition for Rehearing
Since the foregoing opinion was rendered, the Commonwealth has petitioned the court for a rehearing. It now contends "that appellees were never riparian owners for two reasons: (1) the road was completed and no water had even reached the road at the time of the trial; and (2) this road project is a part of the overall Barkley Dam project which took into consideration that the existing road would be covered with water in places, and provision was made to raise the road out of the water. The official designation of this project is BD 24 (Barkley Dam 24), which is being constructed by the state and is being paid for totally out of Barkley Dam funds." These arguments are raised for the first time in the petition for rehearing. Therefore, they will not be considered. RCA 1.350(b).
The testimony appearing in the transcript of evidence, page 4 through 7, does not make this clear. There is only a reference to a map which the witnesses said indicated the area "that will be impounded when the water is brought in."
With respect to the second contention the "road project is part of the overall Barkley Dam project," we are not favored with a reference to the testimony that so indicates (RCA 1.210(a) 3 (b), and we have not observed any such testimony in *218 the evidence. The condemnation petition indicates that it is a typical road condemnation proceeding by the Commonwealth.
The third contention is that the special damage claimed was not pleaded, a requirement of CR 9.06. This issue also is raised for the first time in the petition for rehearing; therefore, we will not consider it. RCA 1.350(b).
Our opinion is not to be interpreted as an adjudication of the law if the contentions asserted in the petition for rehearing had been timely raised.
The judgment is affirmed and the petition for rehearing is overruled.
WILLIAMS, C. J., and MILLIKEN, OSBORNE, PALMORE and STEINFELD, JJ., concur.
MONTGOMERY, J., dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2912345/ | 11th
Court of Appeals
Eastland,
Texas
Opinion
Jeremy Clinton Bledsoe
Appellant
Vs. No.
11-01-00322-CR -- Appeal
from Rockwall County
State of Texas
Appellee
Appellant pleaded guilty on September 15, 1998, to the offense of
unlawful possession of a controlled substance pursuant to a plea agreement that
he made with the State. The trial court
assessed his punishment on October 6, 1998, pursuant to the terms of the plea
agreement at confinement in a state jail facility of the Texas Department of
Criminal Justice for a term of 2 years, probated for 5 years. The trial court additionally imposed a fine
of $1,000. Appellant remained on
probation until August 16, 2001, at which time the trial court revoked his
probation by ordering that appellant be confined in a state jail facility for
20 months. We affirm.
Appellant presents two issues on appeal. He contests the voluntariness of his guilty
plea in his first issue. Under the
recent holding of Cooper v. State, 45 S.W.3d 77 (Tex.Cr.App.2001), we do not
have jurisdiction to consider appellant=s
complaint. Citing the language of
TEX.R.APP.P. 25.2(b) and its history, Cooper held that an issue
concerning the voluntariness of a guilty plea cannot be raised on appeal from a
plea-bargained, felony conviction.
Cooper v. State, supra at 81.
Moreover, appellant=s
complaint regarding the voluntariness of his plea is not timely. Had he wished to raise an issue relating to
his conviction, appellant was required to perfect an appeal when the original
sentence was imposed rather than waiting until probation was revoked almost
three years later. See Manuel v. State,
994 S.W.2d 658, 661 (Tex.Cr.App.1999); Whetstone v. State, 786 S.W.2d 361, 363
(Tex.Cr.App.1990). Appellant=s first issue is overruled.
Appellant argues in his second issue that the
trial court abused its discretion in revoking his probation. We review a trial court's decision to revoke
an order of community supervision under the abuse of discretion standard.
Cardona v. State, 665 S.W.2d 492, 493 (Tex.Cr.App.1984). An abuse of discretion
occurs “only when the trial judge's decision was so clearly wrong as to lie
outside that zone within which reasonable persons might disagree.” Cantu v.
State, 842 S.W.2d 667, 682 (Tex.Cr.App.1992), cert. den’d, 509 U.S. 926
(1993). The State's burden of proof in
a revocation proceeding is by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873
(Tex.Cr.App.1993). In determining the
sufficiency of the evidence to sustain a probation revocation, we review the
evidence in the light most favorable to the trial court's ruling. See Garrett v. State, 619 S.W.2d 172, 174
(Tex.Cr.App.1981). The trial court is
the sole judge of the credibility of the witnesses and the weight to be given
their testimony. Garrett v. State,
supra at 174.
When the trial court has found several violations,
the order revoking probation will be affirmed if the proof of any allegation is
sufficient. See Moore v. State, 605 S.W.2d 924, 926 (Tex.Cr.App.1980); Moses v.
State, 590 S.W.2d 469, 470 (Tex.Cr.App.1979).
In other words, proof of any alleged violation is sufficient to support
an order revoking community supervision. See O'Neal v. State, 623 S.W.2d 660,
661 (Tex.Cr.App.1981). A plea of Atrue@ by the defendant to an allegation that he
violated terms of probation, standing alone, is sufficient to support
revocation of probation. Hays v. State,
933 S.W.2d 659, 661 (Tex.App. - San Antonio 1996, no pet=n).
The State alleged that appellant violated numerous
conditions of probation. Appellant
pleaded true to several of the alleged violations, including those alleging the
commission of subsequent offenses. The
State offered evidence in support of most of the alleged violations to which
appellant pleaded not true. The
appellate record, therefore, establishes that the trial court did not abuse its
discretion in revoking appellant=s
probation. Appellant=s second issue is
overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
JUSTICE
July 11, 2002
Do not publish. See
TEX.R.APP.P. 47.3(b).
Panel
consists of: Arnot, C.J., and
Wright,
J., and McCall, J. | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2440028/ | 427 S.W.2d 659 (1968)
UNDERWRITERS AT LLOYDS, LONDON et al., Appellants,
v.
T. I. HARKINS et al., Appellees.
No. 93.
Court of Civil Appeals of Texas, Houston (14th Dist.).
April 10, 1968.
Rehearing Denied May 8, 1968.
*660 Robert A. Hall, J. Eugene Clements, Baker, Botts, Shepherd & Coates, Houston, for appellants.
Tom Alexander, Jonathan Day, Butler, Binion, Rice, Cook & Knapp, Houston, for appellees.
SAM D. JOHNSON, Justice.
This was a suit on a livestock insurance policy brought by the assureds, T. I. Harkins and Tony Bellardi, who are appellees here. The suit was brought on a Lloyds' Livestock Policy under the provisions of which the insurer agreed to pay to the assureds the actual value of a race horse, Benedicto, provided the horse died while the policy was in force. The insurance policy in question characterizes the duration of insurance coverage as "from noon 1st November, 1961 to 31st October, 1962, both days inclusive." Benedicto became sick on October 14, 1962. He subsequently died four days after the recited policy expiration date, on November 4, 1962. Notification of death, the only notice of any kind given to the Underwriters, was given the next day, November 5, 1962.
The insurance policy contained a "Thirty Days Extension Clause" which recited as follows: "In consideration of the premium paid hereon, it is hereby agreed that this insurance is extended to cover the death of any animal hereby insured occurring within thirty days after the expiry date specified in this Insurance as a result of any accident occurring, or illness or disease manifesting itself, during the period of this Insurance, provided that the accident, illness or disease has been notified to the Underwriters in writing prior *661 to the said expiry date of this Insurance and subject otherwise to all the terms and conditions of this Insurance."
Benedicto was a race horse who had a highly successful career. While in transit from Kentucky to Houston, Benedicto manifested symptoms of shipping fever, which is a respiratory infection. The driver of Benedicto's van phoned Benedicto's trainer, Mr. Garrison on October 14, 1962, and notified him that the horse was not shipping well, and that Benedicto was being examined by a veterinarian in Nacogdoches. The driver also gave T. I. Harkins, one of the appellees, this same information. On October 15, 1962, the date of Benedicto's arrival in Houston, he was again seen by a veterinarian, Dr. E. H. Williams. Between the first date, October 14, 1962, and November 5, 1962, the date of death, Benedicto was examined and treated by veterinarians on some seventeen occasions. During this period, Dr. Williams, a Houston veterinarian, felt that Benedicto was improving and would do all right. Those that had occasion to see Benedicto seemed to have confidence that he was improving and would recover.
It wasn't until two or three days before Benedicto died that he became dull and listless, went off his feed, and though he improved the next day, relapsed and died rather quickly. From the time of Benedicto's arrival in Houston until after his death, appellee, T. I. Harkins, was in Louisiana where his mother was in critical condition. Harkins was generally informed of Benedicto's condition as he stayed in contact with his Houston office by phone. It was not shown, however, that the appellee, Tony Bellardi, was unavailable during this time. Other employees apparently were in daily contact with Benedicto during all of this period.
A post-mortem examination was conducted by Dr. Paul H. Kramer, a Houston veterinarian, which revealed that Benedicto died of pneumonia. Both Dr. Kramer and Dr. Williams testified that the condition which led to Benedicto's death manifested itself before the expiration date of the policy and that, regardless of treatment, Benedicto's condition was probably irreversible a number of days before his death.
In response to special issues the jury found, in substance, that the illness or disease which caused Benedicto's death on November 4, 1962, had manifested itself prior to October 31, 1962; the illness or disease contracted by Benedicto on or before October 14, 1962, was reported to appellants within a reasonable time; the failure of appellees to notify the insurance company of the illness or disease contracted by Benedicto on or before October 14, 1962, did not result in actual harm, detriment and prejudice to the appellants; the illness or disease which actually caused Benedicto's death was reported to the insurance company within a reasonable time after it manifested itself; the failure of appellees to notify the insurance company prior to October 31, 1962, of the illness or disease which caused Benedicto's death did not result in actual harm, detriment and prejudice to the appellants; the failure of appellees to notify the insurance company after October 31, 1962, of the illness or disease which caused the death of Benedicto did not result in actual harm, detriment and prejudice to the appellants; and that the actual value of Benedicto at the time of the first manifestation of the disease or illness which caused his death was $5,000.00.
The trial court entered judgment on the verdict for the appellees and against the appellants in the sum of $5,000.00 and appeal is duly perfected to this court. Appellants present some 25 points of error, but we believe there are four basic contentions.
First, that appellees are precluded from recovery since Benedicto died four days after the livestock policy expired, the thirty day extension clause never having become operative. By its terms, the policy of insurance was to expire at noon, October *662 31, 1962. There was thus no insurance coverage on the date of Benedicto's death four days later unless there was an extension of the duration of the policy. Appellees' position is that their notice of Benedicto's death was effective to render operative the "Thirty Days Extension Clause" thus extending the contract beyond the date on which it would otherwise have expired and that their notice of death on November 5, 1962, satisfied the contractual requirement of notification of accident, illness or disease in writing prior to the expiry date of the policy of insurance. We do not agree.
The policy stated, "* * * this insurance is extended to cover the death * * * occurring within thirty days after the expiry date * * * as a result of any * * * illness or disease manifesting itself, during the period of this insurance, provided that the accident, illness or disease has been notified to the Underwriters in writing prior to the expiry date * * *." (Emphasis added). It required notice to the Underwriters of illness, not death, prior, not after, the expiration date of the policy. The extension requirement is plain, definite, certain and unambiguous. By the policy terms, affirmative action on the part of the appellees was necessary to prevent the automatic termination of the policy on October 31, 1962, and it was uncontested that appellees failed to give such notification.
"Where the terms of an insurance policy are plain, definite and unambiguous, the courts cannot vary these terms * * * courts will not so construe plain language as to make a contract embrace that which it was intended not to include." Royal Indem. Co. v. Marshall (Tex.Sup.Ct.), 388 S.W.2d 176. We cannot make a new contract for the parties but must give effect to the agreement that is theirs. "* * * a contract is to be construed in accordance with its plain language * * * terms used in an insurance contract, like any other contract, are to be given their plain, ordinary and generally accepted meaning unless the policy itself shows them to have been meant in a technical or different sense." General Am. Indem. Co. v. Pepper, 161 Tex. 263, 339 S.W.2d 660.
Similar interpretation is applied to expiration dates of policies of insurance. "Courts cannot disregard a plain unambiguous statement in the policy as to the expiration date, in the absence of an allegation of accident, mistake, or fraud." Appleman, Insurance, Sec. 7175. "In the absence of an allegation of accident, mistake, or fraud, the court could not disregard the plain and unambiguous statement in the policy that the expiration date thereof was at noon, March 19, 1932." Dillon v. General Exchange Ins. Corp., Tex.Civ.App., 60 S.W.2d 331, no writ hist. In the case at bar, there were no allegations of fraud, accident or mistake. The parties are therefore bound by the clearly expressed terms of the policy.
By its unambiguous terms the thirty day extension clause never became operative in the absence of the required notification that was necessary to activate the extension. Recovery is therefore precluded as a matter of law, since Benedicto died four days after the expiration date of the policy in question.
Appellants' second contention is that plaintiffs are precluded from recovery because they failed to give notice of Benedicto's illness, such notice being a condition precedent to recovery. This "immediate notice" provision, it should be noted, is altogether separate from the previously discussed notice provision required to keep the policy in force after its expiration date.
Condition number six of the policy provided, "It is a condition precedent to any liability of the Underwriters hereunder that * * * (b) * * * In the event of any illness, disease, lameness, injury, accident or physical disability, the Assured shall immediately, at his own expense, employ a qualified Veterinary Surgeon and *663 shall, if required by the Underwriters, allow removal for treatment, and (c) in the event of death of an insured animal, the Assured shall immediately, at his own expense, arrange for a post-mortem examination to be made by a qualified Veterinary Surgeon, and (d) in either event, the Assured shall immediately give notice by telephone or telegram to the person or persons specified for the purpose in the Schedule, who will instruct a Veterinary Surgeon on the Underwriter's behalf if deemed necessary; and any failure by the Assured to do so shall render the Assured's claim null and void and release the Underwriters from all liability in connection therewith, whether the Assured has personal knowledge of such events or such knowledge is confined to the representatives of the Assured or other persons who have care, custody or control of the animal(s)." (Emphasis added).
Here Benedicto's illness was first evidenced on October 14, 1962. The illness was shipping fever, which is a form of pneumonia. Pneumonia was identified as the cause of death. Though Benedicto's condition, which proved to be terminal, required treatment and examination by a veterinarian on seventeen occasions immediately following, no notice of any nature was given by the appellees during the ensuing twenty-three days.
A somewhat similar situation was presented in Hartford Livestock Ins. Co. v. Henning, 206 Ky. 9, 266 S.W. 912, where the plaintiff sued to recover on a livestock policy for the death of a Jersey cow. The policy provided that in the event of sickness of the cow, it was the duty of the assured to give notice at once by telegraph to the insurance company. It further provided that the insurance would not cover any loss where the assured failed to comply with this condition. The cow became ill on August 20, 1921 and died on September 3. The plaintiff was absent from her home and did not know of either the illness or the subsequent death of the cow until September 17, 1921, however, a veterinarian was in daily attendance on the cow during the period of her illness. The court said, "The conditions set forth in the policy are reasonable, and they are material and important parts of the contract, and should not be deliberately set aside as of no moment. The general rule is that, where a policy contains a stipulation to the effect that notice of illness and death must be given within a specified time, such stipulation is valid and must be complied with before recovery can be had on the policy, except where not made a condition precedent to such right of recovery, or where it is made to appear that the party whose duty it was to give the notice was prevented by casualty or misfortune of some kind from giving it * * *." In Alston v. Northwestern Livestock Ins. Co., 7 Kan. App. 179, 53 P. 784, a suit was brought on a livestock policy for the death of a horse. The policy required notification of sickness or accident at once, otherwise the policy should be void. The horse became ill on November 9, 1894 and died six days later, notice never having been given. The court there stated, "There is no question but that under the terms of this clause in this policy it was the duty of the plaintiff, in any event, to notify the company of the sickness of the animal. In case of a failure to do so, it is expressly provided that the policy shall become void absolutely. There is no room for construction or interpretation. This provision is clear and emphatic. It is immaterial whether the receipt of the notice would have been of advantage to the company. The contract provided that a forfeiture should follow a failure, and it became a material matter, and the plaintiff is bound thereby." See also National Livestock Ins. Co. v. Bartlow, 60 Ind.App. 233, 110 N.E. 224 (1915).
In Hensel v. Capital Livestock Ins. Co., 219 Ill.App. 77, 84 (1920), confronted with a similar situation involving an insured hog, the court stated, "By failing to give the required notice of this injury, plaintiff elected himself to carry the risk that the hog would die of this injury and to absolve *664 defendant from liability for death from that particular injury." In Travelers' Ins. Co. v. Myers & Co., 62 Ohio St. 529, 57 N.E. 458, the court said, "The insured undertook at their own peril to decide whether there was or would be a liability or not, and whether the injury received was severe enough to require the stipulated notice to be given. Having assumed that hazard and realized their mistake, they have no one to blame but themselves and they are left without a remedy."
The policy in question here again is clear and unambiguous. It requires as a condition precedent to liability, that appellees give notice of illness which they wholly failed to give. The method by which such notice is to be given, telephone or telegraph, immediately, emphasizes the importance attached to the condition. Only through immediate notice can the insurer investigate the causes of illness or death that are certainly unique to livestock policies. Only through immediate notice can the insurer know, or have an opportunity to know, that the animal will receive proper attention and treatment. Only through immediate notice can the insurer protect itself from the unusual hazards that accompany the insuring of animal life, as contrasted to the insuring of human life.
For the foregoing second reason we believe that appellees are precluded from recovery as a matter of law since they failed to give the required notice of illness, such notice being a condition precedent to recovery.
Appellants' third condition is that appellees are precluded from recovery because the notice of Benedicto's death, even if construed as a notice of illness, was given only after a twenty-three day delay which was unreasonable as a matter of law. It is appellant's position here that the notice given was unreasonable as a matter of law and that the question of harm was irrelevant and should never have been submitted to the jury.
We find only one Texas case involving the notice provision of a livestock policy, National Livestock Ins. Co. v. Henderson, 164 S.W. 852 (Tex.Civ.App.1914), no writ hist. There the plaintiff sued on a policy of insurance which included the following clause: "This company will not be liable for losses occurring if the assured, in case of sickness or accident to the animal or animals hereby insured, shall fail to report forthwith by registered mail or telegraph notice to the company at its home office * * *." The assured failed to report forthwith by registered mail or telegraph notice to the company at its home office; however, immediately upon the animal having been reported sick to the owner thereof, the owner gave notice to appellant's local agent. The horse died the next day. The court held that the transmittal of notice by mail or telegraph under these circumstances was unnecessary and that the notice provided for in the contract could be given: "* * * as well after the death of the animal as before, provided it is done `forthwith' after the injury or after the sickness assumes a form which may reasonably be regarded as sufficiently serious to require medical treatment or the attention of a skilled veterinarian." The court continued, "The trial court had a right to conclude that as soon as the animal's condition indicated the need of skilled attention the appellee endeavored to procure the services of a veterinarian, and failed through no fault of his own, and that the animal's death so soon thereafter (one day) prevented the transmission of the notice (by the Company's agent to the Company) before it died. Under such circumstances, the notice which was thereafter sent of the death of the animal by the agent might well be regarded as sufficient compliance with this clause of the policy." The Henderson case therefore presents a situation where a delay of one day in the prescribed notification was held to be reasonable. Even this limited delay was qualified by the fact that immediate notice had been given to the insurer's local agent.
*665 In Hough v. Kaskaskia Livestock Ins. Co., 230 Ill.App. 341, no notice of the insured horse's ailment was given until ten days after the assured's first observation that the horse was suffering from some ailment. The assured testified, "`I thought there was nothing that would be fatal' * * *. `Well, if I had to notify the Company, I think the horse had to be real sick.'" The court stated, "The evidence discloses that appellee was undertaking to determine for himself the propriety of giving appellant notice of the horse's sickness * * *. It was not for appellee to determine the seriousness of the sickness. Under the provisions of the policy it was his duty to notify the company, unless he was willing to undertake to carry his own insurance so far as that sickness was concerned." For cases in which delays have been held unreasonable as a matter of law, see also Hartford Livestock Ins. Co. v. Henning, supra; Green v. Northwestern Live-Stock Ins. Co., 87 Iowa 358, 54 N.W. 349; Alston v. Northwestern Live Stock Ins. Co., 7 Kan. App. 179, 53 P. 784; Swain v. Security Live-Stock Ins. Co., 165 Mass. 321, 43 N.E. 105.
If the Henderson case establishes a Texas "rule of reasonableness," can the delay here presented be said to be reasonable? Here the sickness was known by the appellees at the outset. This same illness continued and occasioned death twenty-three days later. The continued sickness of Benedicto justified the personal attention of a veterinarian on October 14, 15, 16, 17, 18, 19, 20, 23, 25, 26, 27, 28, 29, 30, 31, and November 1, 2 and 3. On none of these occasions was notice given by the appellees even though the requirement to do so was known to them. When asked what was the reason for not informing the Underwriters, one of the appellees, Harkins, testified, "I wasn't aware it was necessary to give that notice because I didn't think the horse was quite that sick. I thought he would get over it, a week for shipping fever, maybe a week or ten days, they are all right after shipping fever. They have to convalesce." Question: "You knew he was sick, but you thought he would get okay?" Answer: "Right." The appellees knew of the sickness and made their own estimate of its seriousness which proved to be wrong. They had the opportunity of notifying the insurer and determined not to do so. Such a determination, in the face of the expressed policy provisions, must be held to be made at their own peril.
Closely tied to appellees' "reasonable notice" position is their contention that the delay in giving such notice as was ultimately given, was not harmful to the insurer. Special issues submitted by the trial court inquired whether plaintiffs' failure to give the two notices involved herein resulted in actual harm, detriment and prejudice to the defendant. No such showing of harm is necessary, rendering these issues irrelevant. New Amsterdam Cas. Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56. See also Klein v. Century Lloyds, Tex.Civ.App., 275 S.W.2d 91, affirmed, 154 Tex. 160, 275 S.W.2d 95.
For the reasons stated previously, we have not concluded that the insurance was still in effect on November 4, 1962. Even had a contrary determination been made, however, we believe that appellees are precluded from recovery herein by their failure to comply with the notice requirement. The notice of death that was given after a twenty-three day terminal illness is not "reasonable notice" and there was no showing of any waiver of the notice requirement. See Swain v. Security Live Stock Ins. Co., supra.
Having concluded that for the foregoing three reasons that this cause must be reversed and rendered, we do not give detailed consideration to appellants' fourth contention concerning the evidence that *666 was given to justify the actual value of Benedicto.
The judgment of the trial court for damages is here reversed and judgment rendered that appellees take nothing.
Reversed and rendered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440039/ | 427 S.W.2d 636 (1968)
Betty CARVER et al., Appellants,
v.
CITY OF WICHITA FALLS et al., Appellees.
No. 16894.
Court of Civil Appeals of Texas, Fort Worth.
February 16, 1968.
Rehearing Denied March 22, 1968.
*637 Johnson & Browning, and William V. Browning, Wichita Falls, for appellants.
H. P. Hodge, Jr., Wichita Falls, for appellees.
OPINION
RENFRO, Justice.
Although there were numerous plaintiffs and defendants in the trial court, the real suit is by three policewomen of the City of Wichita Falls asking for a mandatory injunction against the City of Wichita Falls requiring the City to give them full Civil Service Protection and classification as "Policewomen" with the same classification as that of "Patrolmen" and therefore entitled to the same pay and seniority as "Patrolmen."
The court, after full hearing, denied the relief for which plaintiffs prayed.
The appeal is before us without a statement of facts, appellants having tendered the statement of facts forty days after time for filing motion for extension of time had expired. Rule 386, Texas Rules of Civil Procedure.
In a non-jury trial the court found that the appellants occupied the status of civil service employees in the classification of "Policewoman," but that the "civil service classification of `Policewoman' is a different classification from the old civil service classification `Patrolman' and is a different classification from the civil service classification `Police Officer,' and the defendants (City) are not required to pay a person in the classification of `Policewoman' the same salary as a person in the classification `Police Officer.'"
The judgment recites the court considered the pleadings, the evidence and the argument of counsel.
Appellants state that the cause was submitted to the court on an agreed statement of facts and oral testimony. Unfortunately for appellants, the agreed statement of facts does not appear in the record. Having no statement of facts, the testimony adduced at the trial is not before us.
All that the record before us contains are the pleadings and the judgment.
Appellants have presented six points of error. The nature of the points are such that it would require an examination of the evidence to determine whether reversible error is present.
In appellants' brief reference is made to ordinances, facts, evidence, etc. We, of course, without a statement of facts, cannot determine whether such ordinances were introduced into evidence, and cannot refer to the facts or evidence to be found only in a statement of facts.
The City in its answer pleaded certain City ordinances. There is nothing in said ordinances which would of themselves show that the court had entered an erroneous judgment.
Inasmuch as the court's judgment recited that evidence was heard, we must assume, in the absence of a statement of facts, there was evidence to support the judgment entered. Mays v. Pierce, 154 Tex. 489, 281 S.W.2d 79 (1955); Exchange Estates, Inc. v. Donaldson, 412 S.W.2d 780 (Tex.Civ.App., 1966, no writ hist.), and cases cited in paragraph 5, page 782.
*638 We realize the importance of the questions raised in the trial court to appellants, to the City of Wichita Falls, and to other municipalities in the State; however, we feel bound, under the record presented, to affirm the judgment of the trial court without attempting to say what we would hold if a full and complete record were before us.
Affirmed.
ON MOTION FOR REHEARING
PER CURIAM.
In their motion for rehearing plaintiffs insist we erred in holding that their points of error could not properly be considered without a statement of facts.
They contend they are entitled to judgment on (1) the recitation of facts contained in the trial court's judgment; (2) ordinances of the City pleaded by the City; (3) the pleadings of the City and facts recited therein; (4) the charter of the City; (5) the prior judgment of this court (City of Wichita Falls v. Cox et al., Tex.Civ. App., 300 S.W.2d 317); (6) Constitutions of the United States and of Texas; (7) public laws of this State; (8) prior decisions of various courts of the land.
We have given consideration to all the matters urged by plaintiffs.
In event we were in error in regard to the necessity of a statement of facts to determine if reversible error is present, we would hold the court was correct as a matter of law in rendering judgment for the City. The ordinances in question were enacted in compliance with Art. 1269m, Vernon's Ann.Tex.Civ.St. The judgment entered was authorized by State law and said City ordinances, and was not in violation of State or United States Constitutions.
Motion for rehearing is overruled.
Overruled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440489/ | 641 S.W.2d 558 (1982)
Ignacio CUEVAS, Appellant,
v.
The STATE of Texas, Appellee.
No. 68888.
Court of Criminal Appeals of Texas, En Banc.
November 24, 1982.
Will Gray, court appointed, Houston, for appellant.
Mark Ward, Dist. Atty., Huntsville, John B. Holmes, Jr., Dist. Atty. & Patricia Saum & Bert Graham, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. and Alfred *559 Walker, Asst. State's Atty., Austin, for the State.
Before the court en banc.
OPINION
TOM G. DAVIS, Judge.
Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(4). After finding appellant guilty, the jury returned affirmative findings to the first two special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death.
Appellant was convicted of murdering Julia Standley by shooting her with a gun in the course of attempting to escape from the Texas Department of Corrections. A previous conviction and sentence of death in this cause were reversed by this Court due to error in the jury selection. Cuevas v. State, 575 S.W.2d 543.
In his sole ground of error, appellant contends that the trial court erred in excusing five jurors under V.T.C.A. Penal Code, Sec. 12.31(b), in violation of Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581, and Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776.
In Witherspoon, the United States Supreme Court held, "that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." 391 U.S. at 522, 523, 88 S. Ct. at 1776, 1777.
The Court stated further that:
"... [N]othing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt ..." 391 U.S. at 522, 523 n. 21, 88 S. Ct. at 1776, 1777 n. 21.
In Adams, the Supreme Court held that the State of Texas could not use V.T.C.A. Penal Code, Sec. 12.31(b), to exclude veniremen whose exclusion would not otherwise be valid under the doctrine set out in Witherspoon.
Sec. 12.31(b), supra, reads as follows:
"Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact." (Emphasis added).
In Adams, the Supreme Court discussed the manner in which Sec. 12.31(b), supra, had been improperly utilized:
"Based on our own examination of the record, we have concluded that § 12.31(b) was applied in this case to exclude prospective jurors on grounds impermissible under Witherspoon and related cases. As employed here, the touchstone of the inquiry under § 12.31(b) was not whether putative jurors could and would follow their instructions and answer the posited questions in the affirmative if they honestly believed the evidence warranted it beyond reasonable doubt. Rather, the touchstone was whether the fact that the imposition of the death penalty would follow automatically from affirmative answers to the question would have any effect at all on the jurors' performance of their duties. Such a test could, and did, exclude jurors who stated that they would be `affected' by the possibility of the death penalty, but who apparently meant only that the potentially lethal consequences of their decision would invest their deliberations with greater seriousness and gravity or would involve them emotionally. Others were excluded only because they were unable positively to state whether or not their deliberations *560 would in any way be `affected.' But neither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court's instructions and obey their oaths, regardless of their feelings about the death penalty. The grounds for excluding these jurors were consequently insufficient under the Sixth and Fourteenth Amendments. Nor in our view would the Constitution permit the exclusion of jurors from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law." 448 U.S. at 49, 50, 100 S. Ct. at 2528, 2529.
The Adams decision in effect overturned several of our cases holding that Sec. 12.31(b), supra, could, independently of Witherspoon, be used to exclude prospective jurors as it had been used in Adams. See Hughes v. State, 563 S.W.2d 581, cert. denied, 440 U.S. 950, 99 S. Ct. 1432, 59 L. Ed. 2d 640; Freeman v. State, 556 S.W.2d 287, cert. denied, 434 U.S. 1088, 98 S. Ct. 1284, 55 L. Ed. 2d 794; Moore v. State, 542 S.W.2d 664, cert. denied, 431 U.S. 949, 97 S. Ct. 2666, 53 L. Ed. 2d 266.
The voir dire of venireman Joseph A. Ward, Jr., a Professor of English at Rice University, took place on February 22, 1979, over a year before Adams was decided.
Ward initially told the court that he had conscientious scruples against the death penalty and that under no circumstances could he participate as a juror in returning a verdict that would require the court to assess the death penalty. The State challenged for cause.
The court continued to question Ward. After carefully explaining to Ward the bifurcated system in Texas for assessing guilt and punishment in capital murder cases, the court asked:
"Q....
"Now, you have expressed an objection to the death penalty. Would you feel that your conscientious objection to the death penalty as such, that it would affect your deliberation upon his guilt in the first instance or on either of the questions of fact, on those questions that I asked?
"A. No.
"Q. Well, now you have answered me two different ways.
"A. Maybe I misunderstood you.
"Q. I asked you at the outset whether you could participate as a juror in returning a verdict that would require the infliction of death as a punishment for crime.
"A. Oh, I see.
"Q. And you expressed an opinion that you could not.
"A. May I ask a question? You say it's the Court and not the jury that imposes the penalty, is that right?
"Q. That's right, but the Court is obligated to assess punishment based on the answers to those special issues ... Would your attitude and your objection to that form of punishment interfere with the way you deliberated upon the facts of the case?
"A. No, it wouldn't.
"Q. You believe you can successfully set that aside and base your answers solely and exclusively upon the evidence you hear in the trial of the case?
"A. Yes, sir."
*561 The court then allowed the State and appellant to question Ward, denying the State's challenge for cause.
During questioning by the State, Ward averred that, "There are numerous laws that I don't agree with, but I try to obey them and I accept the system of justice as it is." Later, Ward stated:
"A.... I didn't make the laws. I don't approve of that particular penalty, but I think I could make a discrimination between the two.
"Q. Between your conscience and what the Court told you to do or the legislature?
"A. That is correct."
On three more occasions, Ward was challenged for cause by the State and each time the challenge was specifically denied.
In the first such instance Ward stated that he did not see how the State could prove that a person would commit criminal acts of violence in the future. Art. 37.071(b)(2), V.A.C.C.P.
Appellant posited a hypothetical involving a cold-blooded killing of girl scouts by a person who had already gone to prison four or five times for similar offenses:
"Q.... Under those circumstances, don't you think, if you believed all that beyond a reasonable doubt, you could conclude that there is a probability that he would commit future acts of violence?
"A. Yes.
"Q. So you could answer that question yes if the facts required it and warranted it, couldn't you?
"A. Yes."
The State's challenge was then overruled.
In the second instance, Ward initially had trouble understanding that a non-triggerman who did not intend for a murder to occur, but who anticipated it or should have anticipated it, could be assessed the death penalty.
Appellant explained to Ward that he was not required to answer the punishment questions affirmatively in the case of a non-triggerman and that he could consider mitigating circumstances such as lack of intent to kill. Ward stated that he could answer the punishment questions and consider any mitigating circumstances. At this point, the State's challenge was overruled.
In the third instance the State asked Ward:
"Q. So you are saying the fact that the death penalty is a possible punishment, that fact would influence you in your decision as to how you answer these two punishment questions, right?
"A. It probably would. Yes.
"Q. Could you say yes or no?
"A. Yes. Of course, it would certainly be in my mind, surely, it would influence me.
"...
"A.... I would try to be as fair as possible, but I do have
"Q. If you were that opposed to the death penalty, I could understand how it would affect you, and you just told me it would.
"A. Sure it would.
"...
"MR. GRAHAM: Your Honor, we challenge under 1231."
Appellant was allowed to question Ward:
"Q. Mr. Ward, of course, anybody that's considering whether another individual lives or dies is going to be somewhat affected by that decision unless they are an executioner or something like that, don't you agree?
"A. Yes, I hope so.
"Q. Even though a juror feels that way, and I think it's proper that they should certainly be concerned about this life or death issue, but if you could answer yes to those questions if the State convinced you beyond a reasonable doubt that the answers should be yes, then you should serve and do your duty as a juror.
*562 "A. That's right.
"Q. Can you do that?
"A. Yes.
"Q. So it would depend on the evidence that you heard?
"A. Yes.
"Q. And if you were convinced beyond a reasonable doubt, it wouldn't affect your feelings on the death penalty, you'd answer those questions yes or no and let the chips fall where they may?
"A. Yes.
"Q. Is that correct?
"A. That is true. It will be very unpleasant, but I will do it.
"...
"Questions by the Court:
"Q. Mr. Ward, could the State ever prove to you beyond a reasonable doubt that your answers should be yes to both questions?
"A. Surely.
"Q. You realize you have answered the lawyers' questions in an opposite manner?
"A. No, I haven't. The question was whether I would be influenced and the answer is certainly true.
"...
"A. I didn't say influence my verdict. I say influencing my feelings. I would have to be very strongly convinced of the guilt.
"...
"Q. So that if you are convinced beyond a reasonable doubt that the answer to both questions should be yes, after these other matters in the hypothet has been satisfied his guilt is proven, and you will answer then yes?
"A. Yes.
"THE COURT: Overrule the challenge."
Finally, the following colloquy between the State and Ward resulted in his exclusion: "Q. Then that feeling, I assume, when you say that, it makes me feel like that your feeling against the death penalty would affect your deliberation how to answer those questions.
"A. Yes.
"Q. It would?
"A. Yes.
"Q. See, that's what to me any issue of fact means.
"A. I thought you meant the facts of the given case.
"Q. Not on the guilt or innocence. I'm talking about any issue of fact, meaning facts of whether or not you think this man is probably going to commit criminal acts in the future.
Those punishment questions. Do you follow me. Those are also facts that are involved in the case as well as the first part, when you are trying to decide whether he's guilty or not. So the fact you know death is a possible punishment, would that affect your deliberations on issue of fact in deciding the punishment question?
"A. Yes.
"Q. It would for sure?
"A. Yes.
"Q. If that's the case, I take it that you could not state under oath that the mandatory penalty of death would not affect your deliberations in the punishment part.
"A. Now, I understand what you are saying. I could not take that.
"Q. You couldn't take that oath?
"A. No. I couldn't do that.
"MR. GRAHAM: Your Honor, we challenge for cause under 12.31.
"...
"THE COURT: Challenge is sustained at this time."
The State contends that there was no Adams violation in the exclusion of Ward, because he "was not qualified under Witherspoon ab initio," and the trial court's *563 granting of the State's challenge was based on the entire voir dire.
Both arguments are without merit. Ward could not have been excluded consistently with Witherspoon. He repeatedly stated that he could follow the law and convict upon proper evidence of guilt beyond a reasonable doubt, despite his opposition to the death penalty.
Further, the trial court properly overruled the State's challenges four times. Only when Ward admitted that he could not take the oath because he would be "affected" by his views on capital punishment did the State successfully challenge him, and the challenge was based specifically on Art. 12.31, supra.
This exclusion of Ward was precisely the kind of exclusion forbidden by the Supreme Court in Adams. If even one juror is improperly excluded under the Witherspoon line of cases, the State cannot execute an appellant. Davis v. Georgia, 429 U.S. 122, 97 S. Ct. 399, 50 L. Ed. 2d 339.
The State asserts that appellant's ground of error is multifarious. We have no problem identifying and understanding appellant's point of objection. See Art. 40.09, Sec. 9, V.A.C.C.P.
The State additionally contends that appellant did not properly object to the exclusion of Ward. As noted earlier, at the time of this trial our case law made it abundantly clear that an objection to a Sec. 12.31(b) exclusion on Witherspoon grounds would be futile.
Where a defect of constitutional magnitude has not been established at the time of trial, the failure of counsel to object does not constitute waiver. Ex parte Sanders, 588 S.W.2d 383.
There are exceptions to this general rule, Crawford v. State, 617 S.W.2d 925, but this case is not one of them.
An examination of the voir dire shows that the State, appellant, and the trial court were fully aware of Witherspoon issues. Appellant made a sustained and vigorous effort to keep Ward from being excluded. Appellant objected to the successful exclusion of Ward on the grounds that, inter alia, "it would deprive this Defendant of a jury comprised of a fair cross-section of the citizens of this community, and we submit further that he's qualified by his answers." The error was preserved.
Unquestionably, at the time of trial, the court was correct in sustaining the State's challenge to prospective juror Ward under this Court's holding construing V.T. C.A. Penal Code, Sec. 12.31(b). The subsequent decision of the United States Supreme Court in Adams mandates that such action by the trial court constitutes reversible error.
When a Witherspoon type error has occurred, though the error is to penalty alone, the case must be reversed for an entirely new trial. Evans v. State, 614 S.W.2d 414. This Court is without authority to direct a new trial before a different jury on the issue of punishment only. Ellison v. State, 432 S.W.2d 955. See also Art. 44.24(b), V.A.C.C.P.
The judgment is reversed and the cause is remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440501/ | 968 N.E.2d 1068 (2012)
360 Ill. Dec. 315
PEOPLE
v.
DeJESUS.
No. 114017.
Supreme Court of Illinois.
May 1, 2012.
Petition for leave to appeal denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2824125/ | IN THE COURT OF APPEALS OF IOWA
No. 15-0243
Filed August 5, 2015
TAYLOR INDUSTRIES, INC., a/k/a
HUSSMANN CORPORATION, and
INDEMNITY INSURANCE COMPANY
OF NORTH AMERICA,
Petitioners-Appellants,
vs.
BRENT LEPLEY,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Dennis J. Stovall,
Judge.
An employer appeals the district court’s denial of its petition for judicial
review. AFFIRMED.
Timothy W. Wegman and Joseph M. Barron of Peddicord, Wharton,
Spencer, Hook, Barron & Wegman, L.L.P. West Des Moines, for appellants.
Tom L. Drew of Drew Law Firm, P.C., Des Moines, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
2
MULLINS, J.
Taylor Industries, Inc., a/k/a Hussmann Corporation, and Indemnity
Insurance Company of North America (the employer) appeal the district court’s
judicial review ruling arising out of Brent Lepley’s workers’ compensation claim.
Lepley sustained an injury on July 31, 2012, while working for the employer. The
initial treatment was to Lepley’s left shoulder; however, several weeks later,
Lepley began complaining of pain in his right shoulder as well. The employer
denied liability for the right shoulder injury, and the matter proceeded to a
workers’ compensation hearing. The deputy commissioner determined Lepley’s
right shoulder condition was not work related. On intraagency appeal, another
deputy commissioner, hearing the appeal by designation of the commissioner,
reversed this decision, concluding Lepley carried his burden to prove his right
shoulder injury was causally related to the work injury, either through an acute
injury on July 31, 2012, or through overuse as a result of the left shoulder injury.
Because Lepley was not at maximum medical improvement for either shoulder
injury, the employer was ordered to pay for past and future treatment for both
shoulders.
The employer filed a petition for judicial review with the district court,
challenging the evidence supporting the finding of causation for the right shoulder
injury. The district court upheld the agency’s decision under a substantial
evidence review pursuant to Iowa Code section 17A.19(10)(f) (2011). On appeal
from the district court’s decision, the employer again challenges the substantial
3
evidence supporting the causation decision of the agency with respect to
Lepley’s right shoulder injury.
The district court correctly analyzed both the applicable law on judicial
review and the facts of this case. See Neal v. Annett Holdings, Inc., 814 N.W.2d
512, 518 (Iowa 2012) (“A district court acts in an appellate capacity when it
exercises its judicial review power. When reviewing a district court’s decision ‘we
apply the standards of chapter 17A to determine whether the conclusions we
reach are the same as those of the district court. If they are the same, we affirm;
otherwise, we reverse.’” (citation omitted)). Because we reach the same result
as the district court—that substantial evidence supports the agency’s finding of
causation with respect to the right shoulder injury—we affirm the district court’s
judicial review decision by summary opinion pursuant to Iowa Court Rule
21.26(1)(b), (d), and (e).
AFFIRMED. | 01-03-2023 | 08-11-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2824134/ | IN THE COURT OF APPEALS OF IOWA
No. 14-1581
Filed August 5, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JAMES HARLEY SCHILDBERG,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark R. Lawson
(plea) and Mark D. Cleve (sentencing), Judges.
Following an Alford plea, a defendant appeals alleging ineffective
assistance of counsel. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney
General, Michael Walton, County Attorney, and Patrick A. McElyea, Assistant
County Attorney, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
2
VAITHESWARAN, J.
James Schildberg entered an Alford plea to third-degree kidnapping.1 On
appeal, he contends the plea lacked a factual basis and his attorney was
ineffective in failing to challenge the plea on that ground. See Iowa R. Crim. P.
2.8(2)(b); State v. Ortiz, 789 N.W.2d 761, 764-65 (Iowa 2010) (“Defense counsel
violates an essential duty when counsel permits defendant to plead guilty and
waive his right to file a motion in arrest of judgment when there is no factual basis
to support defendant’s guilty plea.” “Prejudice is presumed under these
circumstances.” (internal citations omitted)).
Schildberg specifically challenges the confinement element of the
kidnapping charge. See Iowa Code § 710.1 (2013) (providing a person commits
kidnapping “when the person either confines a person or removes a person from
one place to another, knowing that the person who confines or removes the other
person has neither the authority nor the consent of the other to do so” and the
person has “[t]he intent to inflict serious injury upon such person, or to subject the
person to a sexual abuse”). The Iowa Supreme Court recently addressed this
element in State v. Robinson, 859 N.W.2d 464, 479-82 (Iowa 2015). The court
reaffirmed the following “oft quoted language” from its prior opinion, State v. Rich,
305 N.W.2d 739, 745 (Iowa 1981):
[O]ur legislature, in enacting section 710.1, intended the terms
“confines” and “removes” to require more than the confinement or
removal that is an inherent incident of commission of the crime of
sexual abuse. Although no minimum period of confinement or
1
An Alford plea is a variation of a guilty plea in which the defendant does not admit to
participation in the acts constituting the crime but consents to the imposition of a
sentence. North Carolina v. Alford, 400 U.S. 25, 37 (1970). Schildberg also entered
Alford pleas to two other crimes, which are not at issue on appeal.
3
distance of removal is required for conviction of kidnapping, the
confinement or removal must definitely exceed that normally
incidental to the commission of sexual abuse. Such confinement or
removal must be more than slight, inconsequential, or an incident
inherent in the crime of sexual abuse so that it has a significance
independent from sexual abuse. Such confinement or removal may
exist because it substantially increases the risk of harm to the
victim, significantly lessens the risk of detection, or significantly
facilitates escape following the consummation of the offense.
Applying this “tripartite test,” the court concluded the evidence against Robinson
was insufficient to find that the confinement “substantially” increased the risk of
harm, “significantly” lessened the risk of detection, or “significantly” facilitated
escape following the consummation of the offense. Robinson, 859 N.W.2d at
478, 481-82.
In our application of the Rich test, we examine the “entire record before
the district court” to determine whether Schildberg’s plea is supported by a
factual basis. State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013). The record
includes the minutes of evidence. Ortiz, 789 N.W.2d at 768.
According to the minutes, Schildberg’s girlfriend would testify that, around
1:30 a.m. one morning, Schildberg pulled her out of bed by her hair, ripping
chunks of hair as he did so. He hit and kicked her and broke one of her ribs. He
also put his legs around her head and neck and choked her until she was
gasping for air. The girlfriend thought she was going to die.
Schildberg forced her to have sex with him several times “throughout the
morning.” Around noon, Schildberg made her drive him to a gas station to get
more beer. He “would not allow her to remain in the vehicle telling her she had to
come in because he thought she might escape or call the police.” He shoved
and directed her into the store. When they returned to the home, Schildberg
4
“would only sleep with his arm around her telling her she was not allowed to
leave.” He “kept her phone and purse away from her so she could not call
anyone.” He did not allow her to leave the residence. He told her he wanted to
keep her in the house to have sex with her because he knew she would be
breaking up with him. She called the police after Schildberg passed out.
Based on these minutes, we have no trouble concluding the confinement
was more than incidental to the commission of sexual abuse. Rich, 305 N.W.2d
at 745. Schildberg forcibly kept his girlfriend in the house for ten-and-a-half
hours, insisted she accompany him to the gas station and into the store so she
would not escape or call police, restricted her movement on their return to the
house, and prevented her from using her phone or from leaving the house.
Because Schildberg’s acts substantially increased the risk of harm to his
girlfriend and significantly lessened the risk of detection, his attorney did not
breach an essential duty in failing to challenge the factual basis for the
confinement element of the crime.
We affirm Schildberg’s judgment and sentence for third-degree
kidnapping.
AFFIRMED. | 01-03-2023 | 08-11-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2440584/ | 242 F. Supp. 2d 791 (2002)
James HOLMAN dba Holman Property Investments, Plaintiff,
v.
CITY OF WARRENTON, Alan Johansson, and Dick Pearson, Defendants.
No. CV 01-1310-BR.
United States District Court, D. Oregon.
September 25, 2002.
*795 Blair J. Henningsgaard, Astoria, for Plaintiff.
Michael A. Lehner, Lehner, Mitchell, Rodrigues & Sears, Portland, for Defendants.
OPINION AND ORDER
BROWN, District Judge.
This matter comes before the Court on Defendants' Motion for Summary Judgment (# 8) and Plaintiffs Motion for Summary Judgment (# 12) as to certain claims.
Plaintiff asserts a civil rights claim under 42 U.S.C. § 1983 arising from Defendants' conduct in responding to Plaintiffs efforts to obtain a building permit to develop certain property within the City of Warrenton. Plaintiff alleges Defendants' conduct violated Plaintiffs procedural due process and substantive due process rights under the Fourteenth Amendment to the United States Constitution. Plaintiff also alleges Defendants' conduct was an uncompensated taking of Plaintiffs private property in violation of the Fifth Amendment to the United States Constitution and Article I, Section 18 of the Oregon Constitution.
Defendants move the Court to enter summary judgment in their favor on all of Plaintiffs claims. Plaintiff, in turn, moves the Court to grant summary judgment in his favor on his substantive and procedural due process claims. On August 12, 2002, the Court heard oral argument on the parties' cross-motions for summary judgment.
For the reasons that follow, the Court GRANTS Defendants' Motion for Summary Judgment as to the portion of Plaintiffs claims that seek damages for attorneys' fees incurred in the mandamus proceeding in state court. The Court also GRANTS Defendants' Motion for Summary Judgment on Plaintiffs substantive due process claim and DISMISSES that claim with prejudice. In addition, the Court DENIES as moot Defendants' Motion for Summary Judgment as to Plaintiffs Fifth Amendment claim because Plaintiff voluntarily withdrew that claim and DENIES the remainder of Defendants' Motion.
The Court also GRANTS Plaintiffs Motion for Summary Judgment as to the procedural due process claim against Defendants Johansson and Pearson and awards Plaintiff $30,408 in damages. The Court DENIES the remainder of Plaintiffs Motion.
FACTUAL BACKGROUND
The following facts are undisputed:
Plaintiff is the owner of approximately.84 acres of real property (Property) within the City of Warrenton, Oregon (City). The Property is located in the middle of the downtown area of the City and is classified as General Commercial (C-l) pursuant to City Planning Ordinances. The operation of a mini-storage facility is a "conditional use" within a C-l zone. A conditional use of property zoned as C-l is not approved automatically, but it may be allowed if the City Planning Commission determines certain criteria and all City ordinances would be met by a proposed plan.
In the fall of 1999, Plaintiff applied to the Planning Commission for a conditional use permit to construct a mini-storage facility. The facility consisted of three separate buildings, one of which fronted Market Street. Plaintiff submitted drawings with the application that showed access through garage doors to the storage units along Market Street. The application, however, indicated Plaintiff was not requesting vehicular access to the units from Market Street. In particular, Plaintiff stated in the application:
*796 The site layout has been designed with access from the North end of Water Street only. No access is requested from Harbor Street, Skipanon Drive, or Market Street. This layout should eliminate any potential bottlenecks created by vehicles slowing or stopping for the purposes of ingress to or egress from the proposed use.
Defendant Dick Pearson was a City Planner when Plaintiff submitted his application for a conditional use permit. Pearson reviewed the application and drafted a Staff Report to the Planning Commission regarding the proposed use. Pearson concluded the proposed use would not generate excessive traffic, especially compared to the amount of traffic generated by uses permitted outright in a C-l zone. He noted the adjacent streets had the capacity to accommodate the traffic that would be generated by the mini-storage facility. Pearson also stated in the Staff Report that "[m]ini-storage units must comply with access and parking standards in Section 7.080 through 7.083." These ordinances required 17 off-street parking spaces for the Property. The proposed plan, however, failed to show any off-street parking spaces for the storage units. Nonetheless, Pearson concluded:
The site has an adequate area to accommodate the proposed use. The site layout has been designed to provide for appropriate access points, on-site drives, public areas, loading areas and other facilities required by city ordinances.
Pearson recommended the Planning Commission approve Plaintiffs application for a conditional use permit.
On November 10, 1999, the Planning Commission held a public hearing on Plaintiffs application. During the hearing, one of the commissioners questioned Plaintiff about access to the units on Market Street. Plaintiff informed the Planning Commission that the garage doors to those units would face Market Street. Plaintiff explained customers would access those units by parking on Market Street and using a sidewalk between the street and the units to unload their belongings. Plaintiff stated he would not build a ramp, and, therefore, no vehicles would be able to drive into the units from Market Street. Plaintiff acknowledged, however, he was "sure some of those people will park on Market Street."
The Planning Commission approved the motion to grant Plaintiffs application for a conditional use permit by oral vote after the public hearing. On November 15, 1999, the Planning Commission recorded a written Notice and Order formally approving Plaintiffs request for a conditional use permit. The Planning Commission's decision was not appealed within the time allotted for such an appeal, and the decision became final.
The Mayor of Warrenton, the Warrenton City Commission, and many citizens were unhappy with Plaintiffs plans to build mini-storage units on the Property, which was one of the last undeveloped pieces of land in the core downtown area. Members of the City Commission publicly criticized the Planning Commission's approval of the use.
On February 22, 2000, Plaintiff submitted an application to the City Building Code Department for a building permit to construct the mini-storage facility. Plaintiff attached to the application more detailed building plans for the project. There were no material differences between the plans Plaintiff originally submitted to the Planning Commission for the conditional use permit and the plans Plaintiff submitted to the Building Code Department for the building permit. In particular, both plans showed storage units that fronted Market Street with a sidewalk between the building and the street.
*797 Building plans must comply with the state building and specialty codes and all City ordinances before a building permit may be issued. To determine whether building plans comply with City ordinances, the application is sent to various department heads who indicate compliance on a routing slip. Pearson received the routing slip on behalf of the Planning Department. Pearson initially indicated on the slip that Plaintiffs request for "conditional use [was] approved by Planning Commission 11-10-99 in the layout and design as shown."
At some later date, however, Defendant Alan Johansson, the City Engineer and head of the Public Works Department, reviewed the routing slip and Plaintiffs application for a building permit. Johansson was concerned that access to the units from Market Street might violate general City ordinances regarding safe use of streets. Johansson contacted Pearson to discuss Plaintiffs proposed use of the Property. Johansson told Pearson that Pearson could not approve the use because the plan enabled Plaintiffs customers to access some of the units directly from Market Street. Johansson did not refer to any particular provision of the City ordinances that the proposed use might violate. At that point, Pearson realized for the first time that there might be an "offstreet parking, loading, maneuvering room problem" with the proposed use. Although Pearson had attended the hearing before the Planning Commission on Plaintiffs application for a conditional use permit and heard the discussion regarding access to units along the Market Street side of the Property, he did not make the appropriate "connections" at that time. After talking to Johansson, Pearson reviewed the parking lot standards and offstreet parking sections of the City ordinances. On March 23, 2000, Pearson sent Plaintiff a letter that indicated Plaintiff would have to redesign his project to comply with the City's off-street parking ordinances. Pearson stated:
It is my opinion that access to serve commercial uses must be off-street and that the City does not permit maneuvering and loading to occur on the public road right of way.
As a result of Pearson's refusal to "sign off on Plaintiffs application for a building permit, the Building Department could not and did not approve Plaintiffs application.
On March 28, 2000, Pearson sent a letter to the City Attorney requesting her opinion as to whether the Planning Commission's earlier approval of Plaintiffs application for a conditional use permit prohibited the City from requiring Plaintiff to comply with the City's zoning ordinances. On March 30, 2000, the City Attorney advised Pearson that the Planning Commission did not waive its right to require compliance with zoning ordinances when it approved Plaintiffs application for the conditional use permit. The City Attorney also advised Pearson that Plaintiff could proceed with the proposed use only if he requested and received from the Planning Commission a variance from the zoning requirement.
In response to Defendants' failure to issue the building permit, Plaintiff met with Pearson to discuss the project. Plaintiff proposed changes to the plan that included redesigning the facility so that only smaller units faced Market Street. Pearson still refused to approve the building permit. Eventually Plaintiff met with Johansson to discuss the project. The parties discussed the possibility of constructing a fence around the property to prevent access from Market Street. At that point, Johansson informed Plaintiff that he would not receive a building permit even if he fenced the property.
Based on this conversation, Plaintiff believed the City would not issue a building *798 permit to him under any circumstances. Plaintiff, therefore, filed a Petition for Writ of Mandamus in Clatsop County Circuit Court. The court held a bench trial on June 23, 2000. On July 9, 2000, the court issued a letter opinion in which it determined the City could not change its original approval of a conditional use permit after it had completed the land use process and issued its Notice and Order. In particular, the court held after the land use process was completed, the City's land use review of the building permit changed from a "discretionary decision to a ministerial function" of confirming the final plans complied with the plans previously approved by the City. The court, therefore, ordered the City to approve Plaintiffs building permit to the extent it complied with the land use permit previously granted by the Planning Commission.
Plaintiff did not file an administrative appeal of the City's decision to withhold his building permit because he believed his state court mandamus proceeding constituted an appeal of the City's decision. In any event, Plaintiff would not have appealed the decision administratively even if he had believed he could do so.
As a result of Defendants' failure to grant Plaintiff a building permit, construction of Plaintiffs mini-storage facility was delayed for four months, and Plaintiff suffered lost profits of $30,208. In addition, Plaintiff incurred attorneys' fees in the amount of $4,600 during the pendency of the mandamus proceedings.
STANDARDS
Fed.R.Civ.P. 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show the absence of an issue of material fact. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir.2001). In response to a properly-supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine issue of material fact for trial. Fed.R.Civ.P. 56(e).
An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Guidroz-Brault v. Mo. Pac. R.R. Co., 254 F.3d 825, 829 (9th Cir.2001) (internal quotation and citation omitted). All reasonable inferences from the facts in the record must be drawn in favor of the nonmoving party. Hensley v. Northwest Permanente P.C Ret. Plan & Trust, 258 F.3d 986, 999 (9th Cir.2001), cert. denied, 534 U.S. 1082, 122 S. Ct. 815, 151 L. Ed. 2d 699 (2002). A mere disagreement about a material issue of fact, however, does not preclude summary judgment. Jackson v. Bank of Haw., 902 F.2d 1385, 1389 (9th Cir.1990). When the nonmoving party's claims are factually implausible, that party must come forward with more persuasive evidence than otherwise would be required. Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1147 (9th Cir.1998) (citation omitted).
The substantive law governing a claim or a defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Arpin, 261 F.3d at 919.
DISCUSSION
As noted, Defendants move the Court to enter summary judgment in their favor on all of Plaintiffs claims. Plaintiff moves the Court to enter summary judgment in his favor on his substantive and procedural due process claims.
*799 I. Defendants' Motion for Summary Judgment on Plaintiffs Fifth Amendment Takings Claim
Defendants move for summary judgment on Plaintiffs claim for alleged violations of his Fifth Amendment rights on the ground that the federal takings claim is not ripe for adjudication. During oral argument, Plaintiff withdrew his Fifth Amendment takings claim. The Court, therefore, denies as moot Defendants' Motion for Summary Judgment on Plaintiffs Fifth Amendment claim.
II. Defendants' Motion for Summary Judgment on All Remaining Claims on Res Judicata /Claim Preclusion Grounds
28 U.S.C. § 1738 requires federal courts to give the same preclusive effect to state court judgments as they would be given in the state in which they were rendered. Miller v. County of Santa Cruz, 39 F.3d 1030, 1032 (9th Cir.1994), cert. denied, 515 U.S. 1160, 115 S. Ct. 2613, 132 L. Ed. 2d 856 (1995). The Oregon Supreme Court has described its claim preclusion doctrine as follows:
We start with the general rule, well established in this state, that a plaintiff who has prosecuted one action against a defendant through to final judgment binding on the parties is barred on res judicata grounds from prosecuting another action against the same defendant where the claim in the second action is one which is based on the same factual transaction that was at issue in the first, seeks a remedy additional or alternative to the one sought earlier, and is of such a nature as could have been joined in the first action.
Rennie v. Freeway Transport, 294 Or. 319, 323, 656 P.2d 919 (1982). Claim preclusion bars both the relitigation of claims and the prosecution of claims that could have been, but were not, litigated in the previous action. Dean v. Exotic Veneers, Inc., 271 Or. 188, 194, 531 P.2d 266 (1975). Thus, a "plaintiff must seek and exhaust all alternative theories for recovery in one action" in order to avoid the risk of subsequent claim preclusion. Id.
Plaintiff apparently concedes his claims in this action are based on the same factual transaction at issue in the mandamus proceeding and he seeks an additional or alternative remedy to the writ of mandamus that he previously obtained. Plaintiff, however, contends claim preclusion does not bar his § 1983 claims because he could not have raised those claims during the mandamus proceeding.
Defendants assert Plaintiff could have brought his constitutional claims for damages in the mandamus proceeding because Or.Rev.Stat. § 34.210 explicitly provides a damages remedy to a relator in a mandamus proceeding. That statute provides in part:
If the court orders issuance of a peremptory writ of mandamus, the relator shall recover from the defendant damages which the relator has sustained from a false return, to be ascertained in the same manner as in an action.
In addition, Defendants argue Plaintiff could have joined his constitutional claims for damages in the mandamus proceeding pursuant to the permissive joinder rules of the Oregon Rules of Civil Procedure. The relationship between § 34.210 and the Oregon Rules of Civil Procedure is, however, a complex one.
In State ex rel. The Kashmir Corp. v. Schmidt, the Oregon Supreme Court interpreted the meaning of a prior version of Or.Rev.Stat. § 34.210. 291 Or. 603, 633 P.2d 791 (1981). The plaintiff, a corporation engaged in the business of developing subdivision housing projects, brought an action against the City of Salem and the Street Inspector and Construction Manager *800 for the City of Salem. Id. at 605, 633 P.2d 791. The City of Salem initially approved plaintiffs construction plans for the subdivision. Id. After construction was underway, defendants issued a stop work order, and plaintiff halted construction. Id. The plaintiff petitioned the Circuit Court for Marion County for a writ of mandamus. Id. In its petition, the plaintiff also asked for a judgment of damages pursuant to former § 34.210. Id. At that time, § 34.210 provided in part, "If judgement [sic] is given for the plaintiff, he shall recover damages which he has sustained by reason of the premises...." The trial court ruled the City of Salem's former approval of the plaintiffs construction plans gave the plaintiff a vested right to proceed with construction pursuant to those plans. Id. at 606, 633 P.2d 791. The court, therefore, issued a peremptory writ ordering the defendants to allow the plaintiff to resume construction. Id. The court continued trial on the damages issue until a later date. Id. In a supplemental pleading, the plaintiff alleged its work was delayed for 39 days by the stop work order. Id. After a trial on the merits, the court found the defendants were protected by governmental immunity and denied plaintiffs damages claim. Id, at 606-07, 633 P.2d 791. The plaintiff appealed.
On appeal, the plaintiff argued the trial court necessarily concluded the plaintiff had established its substantive right to recover damages for the delay under § 34.210 by deciding to issue the peremptory writ. Id. at 607, 633 P.2d 791. The defendants, on the other hand, argued § 34.210 was merely a procedural statute that allowed a trial court to combine trial on the mandamus question with trial on the question of damages rather than forcing plaintiff to initiate a separate action for damages. Id.
After examining the history of mandamus proceedings, the Oregon Supreme Court rejected both arguments. Id. at 608-15, 633 P.2d 791. The court first noted mandamus was a completely independent proceeding under English common law with no connection to actions for damages. Id. at 608-10, 633 P.2d 791. A mandamus proceeding involved only two documents: the plaintiff/relator's alternative writ and the defendant's return of the writ. Id. at 609, 633 P.2d 791. A plaintiff/relator, therefore, could challenge a defendant's factually false return of the alternative writ by filing an independent action on the basis of the false return only after the court rendered judgment against him. Id. This common law rule later was amended in England by the Statute of Anne. Id. at 609-10, 633 P.2d 791.
The Statute of Anne provided a plaintiff/relator could combine his action for a false return of the writ with the original mandamus proceeding. Id. at 611, 633 P.2d 791. The Oregon Supreme Court noted the only effect of the Statute of Anne was "the procedural consolidation" of these two particular actions, but the statute did not allow the relator to join other causes of action with the mandamus proceeding. Id. at 612, 633 P.2d 791. The court then pointed out the Oregon mandamus statutes mirrored the language of the Statute of Anne. Id. at 612-13, 633 P.2d 791. The court, therefore, concluded a plaintiff/relator could "recover as damages in a proceeding for a writ of mandamus only those damages which he could have recovered in his common law action for false return" and could not recover other damages such as those "that stem from the defendant's actions which gave rise to the action for mandamus." Id. at 614-15, 633 P.2d 791. Accordingly, the Oregon Supreme Court held the plaintiffs claim for damages for the 39-day delay in its construction of the subdivision did not lie in a mandamus proceeding and affirmed the *801 circuit court's denial of those damages. Id. at 616, 633 P.2d 791.
The Oregon legislature has amended Or. Rev.Stat. § 34.210 only once since the Schmidt decision. The amendment, which provides the plaintiff/relator "shall recover from the defendant damages which the relator has sustained from a false return," does not affect the Oregon Supreme Court's holding in Schmidt. In fact, the amendment seems to confirm the Schmidt court's earlier interpretation of the statute: that is, the legislature intended a relator to recover only damages for a false return of the writ in a mandamus proceeding rather than all damages arising from the underlying cause of action.
Nonetheless, Defendants here contend Oregon Rule of Civil Procedure 24A allowed Plaintiff to join his damages claim to the mandamus proceeding notwithstanding the limitations of the mandamus statute and the Oregon Supreme Court's holding in Schmidt. ORCP 24A provides a "plaintiff may join in a complaint, either as independent or as alternate claims, as many claims, legal or equitable, as the plaintiff has against an opposing party." The Schmidt court could not have addressed the effect of the Oregon Rules of Civil Procedure on the joinder of damages claims in a mandamus proceeding because the underlying mandamus proceeding took place in 1979 before the rules became effective on January 1, 1980. ORCP 1A provides the rules govern procedure and practice for all civil actions and special proceedings except when "a different procedure is specified by statute or rule." Under Oregon law, when the Oregon Supreme Court interprets a statute, "that interpretation becomes a part of the statute as if written into it at the time of its enactment." Walther v. SAIF Corp., 312 Or. 147, 149, 817 P.2d 292 (1991). This Court finds § 34.210 as interpreted by the Oregon Supreme Court in Schmidt specifies a different procedure for mandamus proceedings than Rule 24A and provides an exception to the general rule of permissive joinder of claims.
Plaintiff here asserts claims for two types of damages: lost profits of $30,208 as a result of the four-month delay in Plaintiffs construction of the mini-storage facility and $4,600 in attorneys' fees incurred during the mandamus proceeding. Plaintiffs claims for attorneys' fees could have been brought in the mandamus proceeding. Or.Rev.Stat. § 34.210(2) provides the court "in its discretion may designate a prevailing party and award attorney fees, costs and disbursements to the prevailing party." In fact, Plaintiffs counsel admitted during oral argument that Plaintiff sought an award of attorneys' fees during the mandamus proceeding, but the court denied that request. This Court, therefore, concludes Plaintiffs claim for attorneys' fees incurred during the mandamus proceeding is barred by the claim preclusion doctrine.
Pursuant to § 34.210 and the Oregon Supreme Court's holding in Schmidt, however, this Court finds Plaintiff could not have pursued his claim for lost profits during the mandamus proceeding under any theory because those damages arose from the conduct of Defendants that gave rise to the mandamus proceeding rather than from a false return of the writ during the mandamus proceeding. Accordingly, the Court concludes Plaintiffs claim for lost profits is not barred by the claim preclusion doctrine.
III. Parties' Cross-Motions for Summary Judgment on Plaintiffs Fourteenth Amendment Substantive Due Process Claim
The Fourteenth Amendment protects persons from government action that is "clearly arbitrary and unreasonable, *802 having no substantial relation to the public health, safety, morals, or general welfare." Patel v. Penman, 103 F.3d 868, 874 (9th Cir.1996), cert, denied, 520 U.S. 1240, 117 S. Ct. 1845, 137 L. Ed. 2d 1048 (1997). The Fourteenth Amendment's substantive due process requirements, however, are preempted when "a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior." Albright v. Oliver, 510 U.S. 266, 273-74, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994). In other words, if a particular amendment places limits on the type of government conduct challenged by a plaintiff, that amendment rather than "the more generalized notion of substantive due process" must guide the court's analysis of the plaintiffs claim. Armendariz v. Penman, 75 F.3d 1311, 1319-20 (9th Cir.1996). A court "may not expand the constitutional protections afforded by the Bill of Rights in those areas specifically addressed by the first eight amendments" through application of the substantive due process clause. Id. at 1325. Substantive due process analysis "has no place in conteaxts already addressed by explicit textual provisions of constitutional protection, regardless of whether the plaintiffs claims under those amendments have merit." Id. at 1325-26.
Defendants contend Plaintiffs substantive due process claim is preempted because his allegations are addressed specifically by the Fifth Amendment's prohibition on the taking of real property without just compensation. Defendants rely on Patel to support their argument.
In Patel, the plaintiffs were motel owners who alleged the defendants City of San Bernardino and various city officials violated the plaintiffs' substantive due process rights by engaging in a course of conduct aimed at driving them out of business. 103 F.3d at 874. In particular, the defendants closed the plaintiffs' motel and refused to grant the building permits that plaintiffs needed to make repairs to cure certain code violations and to enable the plaintiffs to reopen the motel. Id. The Ninth Circuit held the challenged government conduct was encompassed by the Fifth Amendment's Takings Clause, and, therefore, the plaintiffs' substantive due process claims were preempted by that provision. Id. at 875. See also Armendariz, 75 F.3d at 1320-24 (allegations that defendants engaged in a scheme to drive down the market value of the properties or to cause foreclosures so that a shoppingcenter developer could buy the property at a lower price by evicting tenants, depriving plaintiffs of rental income, preventing owners from learning which repairs were necessary to comply with city ordinances, and inventing new violations after plaintiffs made repairs could not form the basis of a substantive due process claim because the type of government conduct challenged gave rise to potential claims under the more specific provision of the Takings Clause).
Plaintiff argues Patel is distinguishable because Plaintiffs business was not closed due to code violations and he was always in full compliance with the City planning ordinances. The Court, however, finds this is a distinction without a substantive difference. Like the plaintiffs in Patel, Plaintiff asserts the City refused to grant his building permit without just cause even though he had a valid conditional use permit to operate the facility in the manner proposed. In both cases, it is the denial of a building permit without just cause and the concomitant interference with the plaintiffs' use of their property that is at the heart of the actions. The Court finds, therefore, the constitutionality of Defendants' conduct, which deprived Plaintiff of the previously-approved use of his real property, must be analyzed under the specific provision that pertains to this type of *803 deprivation: the Fifth Amendment Takings Clause.
Based on the foregoing, the Court concludes the Fifth Amendment Takings Clause provides specific limitations on the type of government conduct that Plaintiff challenges. Plaintiffs substantive due process claim, therefore, is preempted by the Takings Clause. Accordingly, the Court grants Defendants' Motion for Summary Judgment on Plaintiffs substantive due process claim. The Court also denies Plaintiffs Motion for Summary Judgment on the substantive due process claim and dismisses the claim with prejudice.
IV. Cross-Motions for Summary Judgment on Plaintiffs Fourteenth Amendment Procedural Due Process Claim
A. Plaintiffs Claims Against Defendants Pearson and Johansson
The parties do not dispute the material facts. Each party, however, argues the undisputed facts establish he is entitled to summary judgment on Plaintiffs procedural due process claim as a matter of law. In the alternative, Defendants Pearson and Johansson contend they are entitled to summary judgment on Plaintiffs procedural due process claim because they are shielded by qualified immunity.
1. Violation of Plaintiffs Fourteenth Amendment right to procedural due process
The Fourteenth Amendment protects individuals against governmental deprivations of property without due process of law. To prevail on a claim for a procedural due process violation, the party must prove three elements: 1) a protectible liberty or property interest, 2) government deprivation of that interest, and 3) a denial of adequate procedural protections. Foss v. Nat'l Marine Fisheries Serv., 161 F.3d 584, 588 (9th Cir.1998). Defendants contend Plaintiffs procedural due process claim fails because Plaintiff cannot establish any of these elements.[1] Plaintiff, on the other hand, contends he has established each element of this claim as a matter of law.
a. A Constitutionally-Protectible Property Interest
[11] The property interests that the Fourteenth Amendment's procedural requirements protect " `are not created by the Constitution^] ... they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.'" Newman v. Sathyavaglswaran, 287 F.3d 786, 790 (9th Cir.2002) (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)). The procedural due process clause protects only those property interests that a person has already acquired. Id. (quoting Roth, 408 U.S. at 576, 92 S. Ct. 2701). A person, however, may have a constitutionally-protectible interest in acquiring property not currently held if the person has a " `legitimate claim of entitlement' " to the property. Foss, 161 F.3d *804 at 588 (quoting Both, 408 U.S. at 577, 92 S. Ct. 2701). A " `unilateral expectation' or an `abstract need or desire' " for the property is insufficient to confer a protectible property interest. Id.
During oral argument, Plaintiff explained his procedural due process claim is based on his constitutional right to develop the Property in a manner that is consistent with the already-approved conditional use permit. In other words, Plaintiff argues Defendants' actions constituted a de facto revocation of Plaintiffs previously-approved conditional use permit. Plaintiff also argues the previously-approved conditional use permit gave him a vested right in the issuance of a building permit that complied with the terms of the conditional use permit. Plaintiff contends Defendants' refusal to issue a building permit deprived him of that property interest.
Defendants have not addressed whether Plaintiff had a constitutionally-protectible property interest in the conditional use permit or a right to use his land in a manner consistent with that permit. Defendants argue, however, Plaintiff did not have an absolute right to the issuance of the building permit because Plaintiffs project did not meet the City's planning and zoning code requirements with respect to off-street parking. Defendants contend § 9.01.100.010 of the City Building Code required the "local building official with authority to withhold a permit" if it did not meet the requirements of any portion of the City Code. Defendants assert, therefore, Plaintiff did not have a constitutionally-protectible property interest in that permit.
Section 9.01.100.010 of the Warrenton Municipal Code provides:
The application, plans, specifications, computations and other data filed by an applicant for a [building] permit shall be reviewable by the building official. Such plans may be reviewed by other departments of this jurisdiction to verify compliance with any applicable laws under their jurisdiction. If the building official finds that the work described in application for a permit and the plans, specifications and other data filed therewith conform to the requirements of this code and other pertinent laws and ordinances, and that the fees have been paid, the building official shall issue a permit therefor to the applicant.
(Emphasis added.) Defendants argue this provision enabled the City to reexamine whether Plaintiffs project complied with local planning and zoning ordinances and to deny the permit for failure to meet those standards even though the Planning Commission previously determined the project complied with those standards. Defendants acknowledge the Clatsop County Circuit Court rejected their argument during the mandamus proceeding. The court concluded the City's land use planning process for conditional use permits required the Planning Commission to review all of the zoning issues presented in a given project, including issues such as the off-street parking requirements. The court concluded the Planning Commission determined the project met all zoning and land use requirements when it approved Plaintiffs application for a conditional use permit, and that decision was binding on the City after the period for appeal of the Planning Commission's decision passed without objection. See § 15.045(6)(c) (the written order of the Planning Commission is the final decision on the matter unless an appeal has been filed). See also Doney v. Clatsop County, 142 Or.App. 497, 503, 921 P.2d 1346 (1996) (a party who had the opportunity to participate in a land use decision may not collaterally attack that final decision in a later proceeding). The court, therefore, concluded the City was precluded from reexamining the zoning issue when Plaintiff filed his application for *805 a building permit that complied with his conditional use permit.
This Court agrees. During the land use hearing, Plaintiff litigated the issue whether the proposed use complied with all City planning and zoning ordinances. The Planning Commission determined the proposed use complied, and the time for appeal of that decision passed without objection. The parties agree Plaintiff's building permit application and the attached plans and specifications were wholly consistent with the conditional use permit. In fact, the City approved Plaintiffs building permit application immediately after the state court ordered it to do so to the extent the building permit application complied with the conditional use permit. This Court, therefore, finds Plaintiff had a legitimate entitlement to develop his property in a manner consistent with the conditional use permit previously granted by the City after notice and public hearing and a legitimate entitlement to the issuance of a building permit that allowed him to develop his property in a manner consistent with the conditional use permit. Accordingly, Plaintiff has established as a matter of law that he had a constitutionally-protectible property interest to develop his property in a manner consistent with the conditional use permit and in the issuance of a building permit consistent with that conditional use permit.
b. Deprivation of Protected Property Interest
Even if Plaintiff had a protectible property interest, Defendants contend they did not deprive Plaintiff of that interest in a constitutionally significant manner. Defendants stress they did not deny Plaintiffs building permit application but merely delayed the issuance of that permit. Defendants seem to argue this temporary interference with Plaintiffs use of his real property did not constitute a taking under the Fifth Amendment and, therefore, was not an unconstitutional deprivation of Plaintiffs property in violation of the Fourteenth Amendment. The Court finds Defendants' argument without merit.
Defendants rely on Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S. Ct. 1465, 152 L. Ed. 2d 517 (2002). In that case, the Supreme Court held a temporary moratorium on development that was imposed during the normal process of devising a land-use plan did not constitute a per se taking of property that required compensation under the Fifth Amendment Takings Clause. Id. at 1488. Contrary to Defendants' argument, the Supreme Court did not hold that delays in obtaining permits are "inappropriate occasions for a taking claim." (Defendant's Memorandum in Support of Summary Judgment, pg. 7). The Supreme Court simply declined to establish a categorical rule regarding temporary takings. Id. at 1486. In any event, the issue here is not whether a temporary regulatory taking triggers a requirement for just compensation under the Fifth Amendment. Even "a temporary, nonfinal deprivation of property is nonetheless a `deprivation' in the terms of the Fourteenth Amendment.'" Perkins v. City of West Covina, 113 F.3d 1004, 1010 (9th Cir.1997), overruled on other grounds, 525 U.S. 234, 119 S. Ct. 678, 142 L. Ed. 2d 636 (1999) (quoting Fuentes v. Shevin, 407 U.S. 67, 85, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972)). The Court, therefore, concludes the temporary nature of the deprivation here does not preclude a finding of a constitutionally significant deprivation of Plaintiffs property under the Fourteenth Amendment.
Moreover, a careful review of the record shows Defendants did not merely delay temporarily Plaintiffs building permit while they made a land use decision. Instead, each individual Defendant unequivocally *806 told Plaintiff that he would not receive a building permit even if his plans complied with the previously issued conditional use permit and that he must redesign his project to meet additional requirements. As noted earlier, the record reveals Johansson reviewed Plaintiff's application for a building permit as City Engineer. Johansson determined Plaintiff's building permit could not be approved as submitted and communicated his concerns to Pearson. As City Planner, Pearson was the City official charged with "signing off on the building permit application with respect to its compliance with land use laws. Johansson unequivocally told Pearson that he could not approve the building permit. Although Pearson initially signed off on the application, he apparently changed his mind after his conversation with Johansson. Pearson then wrote a letter to Plaintiff and explained the City would not issue the building permit unless Plaintiff redesigned his project to comply with the City's off-street parking ordinances. After receiving the letter, Plaintiff attempted to satisfy the City's concerns and offered to redesign the project even though the City had previously determined the original project met all zoning ordinances. Eventually, Johansson told Plaintiff he would not receive a building permit even if he redesigned the project to meet the newly-cited off-street parking ordinances.
Defendants each unequivocally told Plaintiff they would not approve his application for a building permit as submitted. Based on the foregoing, the Court finds Defendants effectively denied Plaintiffs application as originally submitted and as previously approved by the Planning Commission and, in effect, retroactively revoked the conditional use permit the City previously issued to Plaintiff. The Court, therefore, concludes Defendants' actions deprived Plaintiff as a matter of law of his protected interest in developing his property in a manner that complied with the conditional use permit previously granted by the City.
c. Adequacy of Process Provided
To determine the extent of process that is due under given circumstances, a court must weigh several factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). "At the core of the due process clause is the right to notice and a hearing `at a meaningful time and in a meaningful manner.'" Sinaloa Lake Owners Assoc. v. City of Simi Valley, 882 F.2d 1398, 1405 (9th Cir. 1989), cert. denied, 494 U.S. 1016, 110 S. Ct. 1317, 108 L. Ed. 2d 493 (1990) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965)). When applying the Mathews test, courts generally hold "the Constitution requires some kind of a hearing before the State deprives a person of liberty or property." Weinberg v. Whatcom County, 241 F.3d 746, 753 (9th Cir.2001) (internal quotations and citations omitted) (emphasis in original). Only under "extraordinary circumstances" may the government deprive a person of property without a prior hearing. Id. at 865-66 (quoting Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982)). Thus, "[s]ummary govermental action taken in emergencies and designed *807 to protect the public health, safety and general welfare does not violate due process." Armendariz, 31 F.3d at 866. Similarly, no pre-deprivation process is required if the government action was the result of the random, unforeseeable act of a public employee, it was impracticable for the government to provide pre-deprivation process, and the government offered adequate post-deprivation procedures. Id. (citing Parratt v. Taylor, 451 U.S. 527, 541, 543, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981)).
Defendants contend state law provided Plaintiff with adequate procedures to satisfy the demands of procedural due process. In particular, Defendants point to the existence of a state claim for inverse condemnation, the right to appeal the denial of a building permit to the City Commission, and the mandamus proceeding. Plaintiff, on the other hand, argues Defendants violated his procedural due process rights because they failed to give him any notice or an opportunity to be heard before making their decision to withhold the building permit and before their de facto revocation of the previously-issued conditional use permit.
Defendants have not articulated any "extraordinary circumstances" in this case that justify their failure to provide Plaintiff with any pre-deprivation process. The record also does not suggest Defendants reasonably believed an emergency existed or it was impossible or impracticable to hold a hearing before revoking Plaintiffs conditional use permit or deciding not to grant his building permit. Plaintiff had not begun construction of the ministorage units. He merely was awaiting the issuance of his building permit. The Court, therefore, concludes extraordinary circumstances to justify the deprivation of Plaintiffs property without a prior hearing did not exist in this case.
Moreover, the Court finds the Mathews balancing factors weigh in favor of a pre-deprivation hearing under these circumstances. Plaintiffs private interest in the previously-approved conditional use permit and his entitlement to a building permit in compliance with that use was "considerable." See Weinberg, 241 F.3d at 753 (landowner's private property interest in previously-approved short plats and permits to clear, to fill, and to grade the property was considerable). Plaintiff already had run the gauntlet of Oregon's land use laws during the conditional use process: Plaintiff had submitted an application for a conditional use permit; Pearson had reviewed the application and recommended approval by the Planning Commission; the Planning Commission held a public hearing on the application after giving proper notice; the Planning Commission had questioned Plaintiff about the proposed use and, in particular, the parking requirements; the Planning Commission had determined Plaintiffs proposed use met the City's zoning requirements; and the Planning Commission had issued the conditional use permit. The time for appellate review of the Planning Commission's decision passed without objection. Plaintiff then spent considerable resources to prepare an application for a building permit that complied with the approved use, including detailed plans and specifications, and he reasonably expected approval of the application would be simple and uncomplicated. By withholding the building permit and requiring Plaintiff to redesign his project in a manner inconsistent with the previously-approved conditional use permit, Defendants deprived Plaintiff of the lawful use of his property and his legitimate entitlement to a building permit without first giving him the opportunity to be heard.
The government interest in effectively denying the building permit and revoking *808 the conditional use permit without a prior hearing was minimal. As previously noted, there is no evidence in the record to show exigent circumstances existed. In addition, there is no evidence to show a predeprivation hearing would have placed undue fiscal or administrative burdens on the City. The City easily, quickly, and cheaply could have provided Plaintiff with an opportunity to be heard at another public hearing before the Planning Commission.
Finally, the Court must consider the risk of erroneous deprivation presented by the procedural safeguards in place in this matter. The record shows no predeprivation procedural safeguards were in place to ensure Defendants properly decided whether to grant Plaintiffs application for a building permit. Even after Defendants' decision to withhold the permit was made, Plaintiff was not given the opportunity to be heard by the Planning Commission, the body that initially determined Plaintiffs use met all zoning requirements. Nonetheless, Defendants seem to argue the risk of erroneous deprivation was negligible because Plaintiff had adequate postdeprivation remedies.
First, Defendants rely on the City's internal appeals procedure. The building permit appeals procedure on its face, however, only applies to adverse decisions of the Building Inspector made pursuant to certain specialty codes enumerated in the Oregon Revised Statutes. See § 9.01.090.010. Plaintiff, therefore, did not have an opportunity to appeal directly Defendants' decision to withhold a building permit based on City zoning ordinances.
Defendants also point to the availability of an inverse condemnation proceeding in state court for Plaintiffs state takings claim. Although the Ninth Circuit has held the Fifth Amendment Takings Clause does not require a state to provide a pretaking notice or opportunity to be heard, the court has never held the state need not provide any predeprivation procedures simply because postdeprivation inverse condemnation procedures are available. See Sinaloa Lake, 882 F.2d at 1405 (citing Cassettari v. County of Nevada, 824 F.2d 735, 738-39 (9th Cir.1987)). Inverse condemnation procedures are time-consuming and expensive, and they provide little assurance that a property owner will not suffer erroneously the temporary loss of his property. This Court, therefore, finds Plaintiffs ability to pursue inverse condemnation proceedings after the fact and, potentially, to recover damages for the reduction in the value of his property does not satisfy the requirements of due process. Similarly, the Court finds Plaintiff's ability to pursue and to obtain a writ of mandamus does not constitute adequate postdeprivation process. Because Plaintiff was not offered a timely, inexpensive postdeprivation procedure to test the appropriateness of Defendants' actions, the Court finds the risk of erroneous and lengthy deprivation of Plaintiffs property interest was significant in this matter.
Based on the foregoing, the Court concludes the Mathews factors weigh in favor of Defendants providing Plaintiff with a pre-deprivation hearing in this case. The Court, therefore, concludes Defendants' conduct violated Plaintiffs right to procedural due process as a matter of law.
2. Qualified Immunity
Qualified immunity protects a government official from suit for conduct that "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Qualified immunity, like absolute immunity, is a personal defense and it offers no protection for conduct performed in an *809 individual's official capacity. Kentucky, 473 U.S. at 159, 105 S. Ct. 3099. Qualified immunity is an "entitlement not to stand trial or face the other burdens of litigation." Saucier v. Katz, 533 U.S. 194, 200-01, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). Thus, although it is an affirmative defense, courts should attempt to resolve immunity questions "at the earliest possible stage in litigation." Id. at 201,121 S. Ct. 2151.
When considering whether a government official is entitled to qualified immunity, a court first must determine whether the facts alleged, viewed in the light most favorable to the plaintiff, demonstrate the defendant's conduct violated a specific constitutional right. Brown v. Li, 299 F.3d 1092, 1100 (9th Cir.2002). If the facts alleged establish a constitutional violation, the court then must decide whether the constitutional right at stake was clearly established at the time of the alleged violation. Id. The plaintiff bears the burden of proving the constitutional right allegedly violated was clearly established at the time of the defendant's misconduct. Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir.2002). Finally, if the plaintiff shows the right was clearly established, the court must assess whether an objectively reasonable government actor would have known that his or her conduct violated the plaintiff's constitutional right. Id.
As noted, the Court concludes Plaintiff has established Pearson and Johansson violated his constitutional right to procedural due process as a matter of law. Nonetheless, Johansson and Pearson argue they are entitled to qualified immunity because Plaintiffs constitutional right was not clearly established at the time of their misconduct and, in any event, their actions were reasonable because they received the advice of counsel on this issue. The crux of Defendants' arguments appears to be that Plaintiffs right to a predeprivation hearing was not clearly established because his property right in the issuance of the pending building permit was not well established under Oregon law. Defendants seem to contend it was questionable at the time "whether the City had waived its ability to require compliance with all City zoning requirements when it approved the conditional use permit."
The Court has found Plaintiff had a protectible interest in developing his real property in accordance with the conditional use permit previously approved by the City. By withholding the building permit, Johansson and Pearson effectively revoked that permit and restricted Plaintiffs use of his property without notice or an opportunity to be heard. At the time, Oregon law clearly established that a land use decision made after proper notice and hearing is a final administrative decision not open to collateral attack or unilateral reversal. See Doney, 142 Or.App. at 503, 921 P.2d 1346. Furthermore, when Johansson and Pearson decided to withhold Plaintiffs building permit and to prevent development of his property in compliance with his conditional use permit, the law was well established that the Fourteenth Amendment's due process clause guarantees the right to a predeprivation hearing except under extraordinary circumstances. See Armendariz, 31 F.3d at 868. As noted, Defendants do not contend such extraordinary circumstances were present in this case, and the record does not contain any evidence that indicates exigent circumstances existed or otherwise shows a predeprivation hearing would have been impracticable. Accordingly, the Court concludes Plaintiff had a clearly established right to a predeprivation hearing under these circumstances.
Nonetheless, Defendants Johansson and Pearson maintain they reasonably believed their actions were constitutional because they reasonably relied on the advice of *810 counsel. The record, however, reflects Defendants did not seek the advice of the City Attorney until several days after Pearson mailed the letter to Plaintiff in which he effectively denied Plaintiffs application for a building permit. In addition, Pearson mailed this letter some time after Johansson unequivocally told Pearson that he could not grant the building permit. Thus, Defendants' decision to deny the permit without an opportunity for Plaintiff to be heard was made and the effective denial had occurred before Defendants sought the advice of counsel. The Court, therefore, concludes Defendants did not rely on counsel's opinion letter to justify their actions.
Johansson and Pearson knew the Planning Commission previously had approved Plaintiffs proposed use of the Property after appropriate notice and a public hearing pursuant to the City's extensive land use ordinances. The Court finds it would not have been reasonable for Johansson and Pearson to believe they could withhold Plaintiffs building permit and, in effect, revoke the Planning Commission's approval of the conditional use permit without first providing Plaintiff a similar opportunity to be heard.
Accordingly, the Court concludes Johansson and Pearson are not entitled to qualified immunity on Plaintiffs procedural due process claim. There are no genuine issues of material fact present in this case, and Plaintiff has shown he is entitled to judgment as a matter of law. The Court, therefore, grants Plaintiffs Motion for Summary Judgment on the issue of liability and denies the Motion for Summary Judgment filed by Defendants Johansson and Pearson.
3. Damages
As noted earlier, the Court concludes Plaintiffs claim for his attorneys' fees incurred in the mandamus proceeding are barred by the claim preclusion doctrine. The parties agree Plaintiff sustained $30,208 in lost profits as a result of the delay in the construction of the ministorage units caused by the improper withholding of Plaintiffs building permit. Accordingly, the Court grants Plaintiff damages in the amount of $30,208 on his procedural due process claim against Johansson and Pearson.
B. Plaintiffs Claim Against Defendant City of Warrenton
Local governments "are liable for constitutional violations under § 1983 only if the individual [official] who committed the violation was acting pursuant to a local policy, practice or custom." King County v. Rasmussen, 299 F.3d 1077, 1089 (9th Cir.2002).
Plaintiff also seeks summary judgment on his procedural due process claim against the City.[2] Nonetheless, Plaintiff has not offered any evidence to establish that Johansson and Pearson violated Plaintiff's right to procedural due process as the result of a City policy, practice, or custom nor has Plaintiff argued the City is liable under any other theory. Accordingly, the Court finds Plaintiff has failed to show he is entitled to summary judgment against the City as a matter of law. The Court, therefore, denies Plaintiffs Motion for Summary Judgment on his procedural due process claim against the City.
CONCLUSION
For these reasons, the Court GRANTS Defendants' Motion for Summary Judgment *811 (# 8) as to the portion of Plaintiff's claims that seek damages for attorneys' fees incurred in the mandamus proceeding in state court. The Court also GRANTS Defendants' Motion for Summary Judgment on Plaintiffs substantive due process claim and DISMISSES that claim with prejudice. In addition, the Court DENIES as moot Defendants' Motion for Summary Judgment as to Plaintiffs Fifth Amendment claim because Plaintiff voluntarily withdrew that claim and DENIES the remainder of Defendants' Motion.
The Court also GRANTS Plaintiffs Motion for Summary Judgment (# 12) as to the procedural due process claim against Defendants Johansson and Pearson and awards Plaintiff $30,408 in damages. The Court DENIES the remainder of Plaintiffs Motion.
IT IS SO ORDERED.
NOTES
[1] Defendants do not argue the Fifth Amendment preempts Plaintiff's procedural due process claim. The Court notes the Armendariz decision regarding the viability of substantive due process claims was issued on rehearing en banc. 75 F.3d 1311 (9th Cir.1996). That opinion did not disturb the three-judge panel's prior ruling in Armendariz v. Penman, 31 F.3d 860, 865-66 (9th Cir.1994), in which the court held the plaintiffs stated claims for violations of their procedural due process rights. Armendariz, 75 F.3d at 1316. The Ninth Circuit specifically held the portions of the panel decision regarding the procedural due process claims and the defendants' qualified immunity defenses to those claims "remain in place as the law of the circuit." Id.
[2] Defendant City of Warrenton moved for summary judgment on this claim on res judicata grounds only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440535/ | 641 S.W.2d 21 (1982)
277 Ark. 265
Joe HARMON, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR82-7.
Supreme Court of Arkansas.
November 1, 1982.
*22 Hixson, Cleveland & Rush by Coy J. Rush, Jr. and Herschel W. Cleveland, Paris, for appellant.
Steve Clark, Atty. Gen. by Matthew Wood Fleming, Asst. Atty. Gen., Little Rock, for appellee.
GEORGE ROSE SMITH, Justice.
The appellant, Joe Harmon, was charged with capital felony murder in that he and two younger men, J.D. Phillips, aged 17, and David Michael Turner, aged 22, kidnapped and shot Ricky Bennett on January 23, 1981. After the jury had been sworn the trial court committed reversible error, albeit reluctantly, by permitting the prosecutor to amend the information to add alternatively that the murder was committed in the course of robbery. The jury found Harmon guilty and condemned him to death. Of the eleven points for reversal we discuss those that may arise at a new trial.
First, the evidence was sufficient to support the jury's verdict, which did not specify either kidnapping or robbery as the underlying felony. Prior to the murder Joe Harmon and Dorothy Rader had been living together in her home at Boles, in Scott county. She testified that she had been trying to get him to move out. The home was also occupied by Ms. Rader's children, by the victim, and by one or two other young persons.
On the night in question Harmon, Phillips, and Turner had been out hunting. They returned after midnight. Harmon, who did not like Ricky, scuffled with him and ordered him to pack his belongings and leave. Harmon, Phillips, and Turner set out to drive Ricky to a bus stop, but instead they took him to a lonely place and shot him three times with a rifle. In Harmon's confession he said he had fired the first shot and each of the younger men then also shot Ricky, who had fallen to the ground.
Harmon made little effort to conceal the crime from Ms. Rader or from her daughter Marie. The next day Harmon was seen burning Ricky's wallet. A few days later he took Dorothy and Marie with him while he buried the body in a shallow grave in the woods. We find substantial evidence to support a verdict finding that Harmon killed Ricky Bennett in the course either of kidnapping or of robbery. Ark.Stat.Ann. §§ 41-1702 and -2103 (Repl.1977).
At a suppression hearing a week before the trial the court held that Harmon's confession was voluntary and that there had been a valid consent to a warrantless search of Ms. Rader's house, where the officers took possession of the rifle, which belonged to Ms. Rader's son, and of two rings that had belonged to Ricky. Three of the arguments for reversal arise from the pretrial hearing. With respect to the first argument, we need only say that the trial judge's finding of voluntariness is not clearly erroneous.
Second, the search. Marie Rader, who was sixteen at the time, testified that she and her mother did not report the crime until a month later, because they were *23 afraid of Harmon. On February 23, however, when Harmon had to go to Pine Bluff on a speeding charge, Marie went to the police and reported the murder. She showed the police the grave and also signed a form consenting to the search of her mother's house.
It is argued that Marie could not consent to the search of the house. The question, under Criminal Procedure Rule 11.2, is whether she was a person who, by ownership or otherwise, was "apparently entitled to give or withhold consent." We have said that a person having joint access or control for most purposes may have a sufficient relationship to the premises to give consent. Grant v. State, 267 Ark. 50, 55, 589 S.W.2d 11 (1979). Also, we have upheld a search when it was "not unreasonable" for the officers to believe that the person in question had sufficient control over the premises to give a valid consent to a search without a warrant. Spears v. State, 270 Ark. 331, 605 S.W.2d 9 (1980).
We think the trial judge was warranted in finding that Marie, despite her minority, was apparently entitled to give consent. She testified that she knew about consents to searches, having seen her father execute one. She lived in the home and certainly had the right of access and presumably the right to invite visitors to enter. When she accompanied the officers to the house, she had already reported the crime. Her mother was not at home, only her cousin and one other young person being present. She had described the rifle used in the murder and produced it for the officers, without their searching for it. She also took from her finger one of the two rings that had been taken from Ricky. There is no suggestion that any part of the house was the private quarters of Harmon. We discern no invasion of Harmon's rights in connection with the search of the house, owned by Dorothy Rader. In fact, the rifle and ring were surrendered without a search.
A third argument is that the suppression hearing should not have been held in the absence of Harmon, who was being examined at the State Hospital with regard to his mental capacity. At the hearing no one mentioned Harmon's absence until the trial judge brought it up and expressed some concern about it. Even then, Harmon's attorney made no objection and continued to participate in the hearing. When it ended the judge announced his rulings, but said that he would hold the record open in case the defense wanted to introduce additional evidence. At the trial defense counsel said he had nothing more to offer. It is now argued, however, that the hearing should not have been conducted in Harmon's absence.
Even though an accused has a right to be present when any substantive step is taken in his case, we have recognized that the right may be waived by him or by his attorney. For instance, an attorney could waive his client's presence when certain instructions were reread to the jury during their deliberations. Scruggs v. State, 131 Ark. 320, 198 S.W. 694 (1917). Here, however, Harmon's presence at the suppression hearing was evidently more important than that of the accused in the Scruggs case, because the validity of Harmon's own confession was being determined. He should have been present; so upon a new trial the suppression hearing must be conducted again if the State intends to introduce the confession and the items taken at the house, unless Harmon waives his entitlement to have the matters heard anew.
An argument is made that the jury did not represent a fair cross section of the county's population, because no member of the panel expressed such a firm opposition to the death penalty that an excusal became necessary. If by any chance the same thing should happen at a new trial, there would be no error in the absence of a showing of some deliberate exclusion from the panel of persons opposed to the imposition of the death penalty.
We have already mentioned the court's error in allowing a charge of robbery to be added to the information on the first day of the trial. The prosecutor convinced *24 the trial judge that the amendment was merely for clarity, since capital felony murder had already been charged, with no bill of particulars being requested. The charge, however, was that of murder committed in the course of kidnapping; so the specific charge was in itself a bill of particulars. No excuse was offered for the prosecutor's six-month delay in seeking the amendment. The nature of the charge was unquestionably changed by adding the offense of robbery. That amendment was not permissible in the absence of any notice to Harmon that he was to be required to defend an essentially different charge of capital murder. Ark.Stat.Ann. § 43-1024 (Repl.1977). It is hardly even arguable that a person can fairly be sentenced to death upon a charge that was not made until the morning of trial, leaving no possibility for thorough preparation of a defense upon both the facts and the law.
Joe Harmon and Dorothy Rader lived together for perhaps a year before the homicide. During two months of that time they lived at a motel in Texas, where Harmon was able to support Ms. Rader and her children. The couple, however, did not hold themselves out as husband and wife, other than by living together. Upon similar facts we held that under Texas law there was no common law marriage, so that the woman could testify against the man. Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981). That case is controlling here upon the same issue.
The court properly refused a proffered instruction submitting voluntary intoxication as an affirmative defense. Such intoxication is no longer a defense except possibly with respect to a crime requiring specific intent. Ark.Stat.Ann. § 41-207; Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978); AMI Criminal, 4005 (1979). No instruction with respect to that particular possibility was requested. We do not imply that one would have been proper on the proof presented.
Finally, Harmon argues two contentions concerning the State's proof of a previous conviction for manslaughter, submitted to the jury during the punishment phase of the trial as an aggravating circumstance. It is first insisted that the certificate attesting the conviction was inadmissible, because the certificate was signed by the warden of the Arkansas Department of Correction as purported proof of a conviction in Georgia. The objection is well taken and should have been sustained. Pending a retrial the State will have an opportunity to seek admissible proof.
It is also argued that the statute defining aggravating circumstances limits the use of previous convictions to those of felonies involving the use or threat of violence; so a conviction for manslaughter, which may be committed by reckless conduct, § 41-1504(1)(c), is inadmissible without proof of details. See Williams v. State, 274 Ark. 9, 621 S.W.2d 686 (1981). The statute, however, also permits the use of convictions for a felony creating a substantial risk of death or serious injury to another person. § 41-1303(3). Manslaughter is undoubtedly such a felony.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440543/ | 641 S.W.2d 351 (1982)
Jessie BEAN, Jr., Appellant,
v.
STATE of Texas, Appellee.
No. 13-81-300-CR.
Court of Appeals of Texas, Corpus Christi.
August 26, 1982.
Randy Martin, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., Houston, for appellee.
Before NYE, C.J., and YOUNG and GONZALEZ, JJ.
OPINION
GONZALEZ, Justice.
This is an appeal from a conviction for delivery of a controlled substance. Appellant was found guilty by a jury.
In his sole ground of error, appellant challenges the sufficiency of the evidence to support his conviction. Specifically, appellant *352 contends that the evidence is insufficient to prove that he knew that the substance was hydromorphone, as alleged in the indictment.
In reviewing the sufficiency of the evidence to support the conviction, we must view the evidence in the light most favorable to the verdict. In doing so, the verdict will be sustained if there is any evidence which, if believed, shows the guilt of the accused. Banks v. State, 510 S.W.2d 592 (Tex.Cr.App.1974); Rogers v. State, 550 S.W.2d 78 (Tex.Cr.App.1977). Knowledge and intent can be inferred from conduct of, remarks by and circumstances surrounding the acts engaged in by an accused. Allen v. State, 478 S.W.2d 946 (Tex.Cr.App.1972). In light of these standards, we affirm.
Officer Green, an undercover officer employed by the Houston Police Department, testified that he drove to the 3500 block of Blodgett, accompanied by two other officers in a second car, in response to a phone call he received regarding the location. Upon his arrival, he was flagged down by one Ransom Riser, III, who was standing on the sidewalk with appellant.
Green pulled his car up to the curb and was approached by Riser; appellant was standing "right behind him." Green asked Riser "if he had any number fours," told him that he "needed a K-4 tablet," referring to the K-4 dilaudid tablet, and showed him fifty dollars in bills. Riser then "walked back to the defendant," and the two men disappeared around the corner to a nearby apartment complex.
Less than three minutes later, appellant returned to Green's car alone and Green asked appellant if he had a K-4 tablet; appellant responded by squatting by the passenger side window and displaying one in his hand. After remarking that he "wanted to make sure it was a K-4 first," because he "didn't want to get burned for bad dope," Green exchanged fifty dollars for the pill in appellant's hand. Appellant immediately left the scene and was subsequently arrested. Police chemist Edward E. Heller testified that the pill appellant delivered was a K-4 dilaudid tablet, containing hydromorphone.
Officer Green's testimony concerning the transaction, particularly the fact that he stated before the exchange that he "didn't want to get burned for bad dope," the systematic process for street sales of narcotics, appellant's familiarity with the street name for dilaudid tablets containing hydromorphone, the price of the tablet, all tend to support the jury's finding that appellant knew what he was selling.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440652/ | 508 S.W.2d 549 (1974)
Harold S. PURSER, Appellant,
v.
CORPUS CHRISTI STATE NATIONAL BANK, Appellee.
No. 73-308.
Supreme Court of Arkansas.
April 29, 1974.
Rehearing Denied May 28, 1974.
*550 Sam Goodkin, Fort Smith, for appellant.
Bethell, Callaway & Robertson, Fort Smith, for appellee.
FOGLEMAN, Justice.
This is an appeal from an order of the Sebastian County Circuit Court striking appellant's counterclaim and setoff in an action brought by appellee under Ark. Stat. Ann. § 29-801 et seq. (Repl.1962), the Uniform Enforcement of Foreign Judgments Act, to register an in personam default judgment rendered against appellant by a Texas court, August 29, 1972, after service pursuant to Article 2031b, Texas Revised Civil Statutes. The judgment, in the amount of $72,825.33 for principal, interest and attorney's fees, was based on certain past due and unpaid promissory notes, executed by appellant and payable to appellee.
On February 14, 1973, appellee filed a Petition for Registration of Foreign Judgment in the Sebastian County Circuit Court, alleging that appellee had obtained the Texas judgment, an authenticated copy of which was attached, and that it remained unsatisfied. Summons and a copy of the petition were served on appellant that same day. Appellant filed an answer denying the jurisdiction of the Texas court and a counterclaim and setoff which sought $75,000 compensatory damages for conversion of appellant's business and assets and $100,000 compensatory damages and $100,000 punitive damages for malicious prosecution. These torts were alleged to have been committed in the State of Texas, where appellant then had resided and engaged in business. The appellee responded by filing a motion to quash the counterclaim and setoff alleging that the Sebastian Circuit Court lacked jurisdiction over the subject matter and the parties. On September 13, 1973, the circuit judge sustained the motion and ordered the counterclaim and setoff dismissed without prejudice retaining jurisdiction over appellee's petition for registration of the foreign judgment. This appeal followed.
Before reaching the merits of appellant's contention that the trial court erred in dismissing his counterclaim and setoff, it is necessary to consider appellee's contention that the ruling by the trial judge is not an appealable order. For the order of a trial court to be appealable, it must be final. Ark.Stat.Ann. § 27-2101 (Repl.1962); Allred v. National Old Line Insurance Co., 245 Ark. 893, 435 S.W.2d 104. A final judgment is one which discharges a party from the action, operates to divest some right so as to put it beyond the power of the court to place the parties in their former condition after the expiration of the term and dismisses him from court or concludes his rights to the subject matter in controversy. McConnell & Son v. Sadle, 248 Ark. 1182, 455 S.W.2d 880; Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605; Fox v. Pinson, 177 Ark. 381, 6 S.W.2d 518; Flanagan v. Drainage District No. 17, 176 Ark. 31, 2 S.W.2d 70.
The general rule that the dismissal of a counterclaim or setoff is not directly *551 appealable is subject to exception where, under the circumstances of the case, the order has the effect of a final decision. Fox v. Pinson, supra; 4 Am.Jur.2d, Appeal & Error, §§ 98, 100. In determining what constitutes a final order, the requirements of finality must be given a practical rather than a technical approach. Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S. Ct. 308, 13 L. Ed. 2d 199 (1964). This is necessary because the question is sometimes so close that a decision either way can be supported with equally forceful arguments, making it impossible to devise a formula to resolve cases coming within the "twilight zone." This is really the approach taken in allowing exceptions to the rule that dismissal of a counterclaim is not appealable.
It is obvious that any relief to which appellant might be entitled in the courts of Arkansas on his counterclaim is effectively foreclosed by its dismissal, even without prejudice. It does not appear that there are any allegations which would ever justify service on appellee or the exercise of jurisdiction over it in Arkansas under the Uniform Interstate and International Procedure Act [Ark.Stat.Ann. § 27-2501 et seq. (Supp.1973)]. This is the sort of case, then, that calls upon us to be practical rather than technical in testing the finality of the order dismissing the counterclaim. We took this kind of approach recently when we assumed that an order dismissing a counterclaim was appealable in Reynolds v. Bakem Credit Union (1973), 255 Ark. ___, 500 S.W.2d 355. In so doing, we referred to cases in which the practical effect of an order, unreviewed, was the death knell of a party's attempt to litigate his claim. See Eisen v. Carlisle & Jacquelin, 370 F.2d 119 (2nd Cir. 1966); Reader v. Magma-Superior Copper Co., 108 Ariz. 186, 494 P.2d 708 (1972); Miles v. N. J. Motors, 32 Ohio App. 2d 350, 291 N.E.2d 758 (1972).
We find great similarity between this case and Fox v. Pinson, supra. In Fox this court had reversed a mortgage foreclosure decree and remanded the cause for further proceedings. See Fox v. Pinson, 172 Ark. 449, 289 S.W. 329. Appellant then filed a "cross-complaint" against the plaintiffs (appellees here) for loss of rental value, wrongful conversion of property and for the value of a building on the property allegedly destroyed by appellees while in possession of the land. Appellant sought $74,640 in damages, admitted that $11,500, representing 23 promissory notes then due, should be set off against her recovery and prayed judgment for the balance. Appellees demurred to the "cross-complaint." After appellant refused to plead further, the court sustained the demurrer and dismissed the cross-complaint. Appellant sought to appeal the dismissal. We held that the dismissal effectively concluded appellant's rights to the subject matter in controversy and was therefore an appealable order. When we view the situation at hand practically, we must say that the dismissal of appellant's counterclaim, in effect, terminated a severable branch of the case and was a final and appealable order.
In deciding whether a counterclaim and setoff for damages arising from allegedly tortious conduct of appellee in a foreign jurisdiction may be pleaded in an action to register a foreign judgment in favor of appellee and against appellant, it is necessary to look to both the compulsory counterclaim statute [Ark.Stat.Ann. § 27-1121 (Repl.1962)] and the Uniform Enforcement of Foreign Judgments Act [Ark.Stat.Ann. § 29-801 et seq. (Repl.1962)] and ascertain the purpose of each of those acts.
The salient purpose of the Uniform Act is to provide for a summary judgment procedure in which a party in whose favor a judgment has been rendered may enforce that judgment promptly in any jurisdiction where the judgment debtor can be found, thereby enabling the judgment creditor to obtain relief in an expeditious manner. Ark.Stat.Ann. § 29-806 (Repl.1962); Commissioners' Note to the Uniform Act, Uniform *552 Laws Annotated, Vol. 9A, p. 476; Leflar, the New Uniform Judgments Act, 3 Ark.L.Rev. 402, 415; Nunez v. O. K. Processors, 238 Ark. 429, 382 S.W.2d 384. The Uniform Act provides that any defense, setoff or counterclaim which, under the laws of this state, may be asserted by the defendant in an action on a foreign judgment may be raised in the proceedings pursuant to the act. Ark.Stat.Ann. § 29-808 (Repl.1962).
Dr. Leflar gave us the historical background of the act. In speaking of the rejection of a pure registration system and the adoption of the summary judgment procedure by the National Conference of Commissioners on Uniform State Laws, he said:
The alternative solution which naturally suggested itself was a summary judgment procedure. A few states had already made such a procedure available for suits on foreign judgments, in connection with comprehensive summary judgment enactments, but a number of states which had set up summary judgment procedures for some purposes had not specifically included actions on foreign judgments among the causes of action for which the summary procedure was provided.
Analysis of the problem indicated that a summary procedure devised specially for rendering new judgments on extrastate judgments might be more speedy and efficacious in operation than summary judgment procedures usually are, yet just as fair to all concerned. Further, it became apparent that most of the advantages of a direct registration procedure could be achieved under such a quick judgment procedure. Accordingly, at the Philadelphia meeting of the National Conference of Commissioners on Uniform State Laws in October, 1946, when alternative tentative drafts of a proposed act were presented to the Conference, one prescribing a registration system and the other a summary judgment procedure, preference for the latter was indicated and this preference was made final by formal vote of the Conference at the Cleveland meeting in 1947. Then at the Seattle meeting in September, 1948, a final draft of an act drawn on the summary judgment theory was adopted, the following week was approved by the House of Delegates of the American Bar Association, and thus was formally promulgated and made available for adoption by the states.
This section of the act was intended to do no more than recognize that a judgment debtor should have the right to raise any defense, counterclaim or cross-complaint which, under the law of this state, he might have asserted in the pre-existing procedure by which a judgment creditor in a foreign state had to bring a suit on it in Arkansas in order to carry it into effect here. See Leflar, The New Uniform Foreign Judgments Act, 3 Ark.L.Rev. 402, 410, 412. Dr. Leflar put the matter in proper perspective, saying:
The judgment debtor has had his notice and opportunity for hearing in the first state; traditional practice has never permitted him to litigate anew defenses that were available to him all along. These are foreclosed. The only defenses still available to the judgment debtor are satisfaction of the judgment, absence of jurisdiction in the court rendering the judgment and possibly certain types of fraud in the procurement of the judgment. So long as it remains possible for him to present these defenses in some manner and at some stage in the proceedings before final enforcement of the judgment against him, his interests are adequately protected. The procedure of a new suit brought against him would be merely one method, but by no means the only method, whereby he could be given ample opportunity to present these defenses if they in fact exist. If they do not exist, the debtor loses nothing. The lack of opportunity to present other defenses is no loss since no other defenses *553 are available to him in any event. The only important thing is that he be given a fair chance to present defenses that actually exist. The essence of this theory is that due process need not be satisfied separately in each state that has anything to do with the rendition or enforcement of a judgment; that it is enough that due process be satisfied in one state, after which the action of another state in furtherance of the already valid judgment is essentially administrative in character, with no new notice and hearing necessary.
In all the discussion of the proposed act among the Commissioners, little if any doubt was ultimately cast on the soundness of the analysis just stated.
Arkansas promptly recognized the need for such a summary procedure by adopting Act 34 of 1949. [Ark.Stat.Ann. § 29-801 et seq. (Repl.1962)].
To permit defenses or counterclaims which would not have been theretofore available in a suit on a foreign judgment would be subversive of the whole legislative scheme. Thus, we must ascertain whether, under our decisions, a counterclaim and setoff such as the one in this case may be pleaded as a defense to an action on a foreign judgment.
We have long recognized that a judgment debtor has a right to defend against a foreign judgment sought to be enforced in the courts of this state, but not on defenses that could have been made in the action in which the judgment was rendered. Peel v. January, 35 Ark. 331; Stewart v. Budd, 169 Ark. 363, 275 S.W. 748. Under the full faith and credit clause of the United States Constitution, Art. 4, § 1, such a judgment is as conclusive on collateral attack, except for the defenses of fraud in the procurement of the judgment or want of jurisdiction in the court rendering it, as a domestic judgment would be. Phillips v. Phillips, 224 Ark. 225, 272 S.W.2d 433; Lewis v. United Order of Good Samaritans, 182 Ark. 914, 33 S.W.2d 53. Furthermore, a judgment entered by default is entitled to full faith and credit and is as conclusive against collateral attack as any other judgment. Holbein v. Rigot, 245 So. 2d 57 (Fla.1971); American Institute of Marketing Systems, Inc. v. Don Rhoades Corporation, 82 N.M. 659, 486 P.2d 68 (1971); Wagner v. Cholley, 181 Md. 411, 31 A.2d 852 (1943); Fred Miller Brewing Co. v. Capital Ins. Co., 111 Iowa 590, 82 N.W. 1023 (1900); Parker v. Hoefer, 2 N.Y.2d 612, 162 N.Y.S.2d 13, 142 N.E.2d 194 (1957); Dunn v. Royal Brothers Company, 111 Ga.App. 322, 141 S.E.2d 546 (1965); Gibson v. Epps, 352 S.W.2d 45 (Mo.App. 1962). See Buford & Pugh v. Kirkpatrick, 13 Ark. 33. Since appellant does not allege fraud or lack of jurisdiction in his counterclaim and setoff, the defense asserted by it may not be maintained.
A direct attack on a judgment is an attempt to amend it, correct, reform it, vacate it, or enjoin its execution in a proceeding instituted for that purpose. Sewell v. Reed, 189 Ark. 50, 71 S.W.2d 191; Woods v. Quarles, 178 Ark. 1158, 13 S.W.2d 617. An attack is direct where the proceeding in which it is made is brought for the purpose of impeaching or overturning the judgment, and collateral if made in any manner other than by a proceeding the very purpose of which is to impeach or overturn the judgment. Brooks v. Baker, 208 Ark, 654, 187 S.W.2d 169; Wilder v. Harris, 205 Ark. 341, 168 S.W.2d 804. An action which contemplates some other relief or result is a collateral attack. Sewell v. Reed, supra; Brooks v. Baker, supra. Since appellant's pleading does not seek to directly overturn or modify the original judgment, it constitutes a collateral attack on the judgment which, absent allegations of fraud or lack of jurisdiction, either of the subject matter or of the parties, may not be raised in the registration proceedings.
Appellant also contends that our compulsory counterclaim statute [Ark. *554 Stat.Ann. § 27-1121 (Repl.1962)] applies to any action brought in an Arkansas court and would not only allow, but require, appellant to assert his counterclaim and setoff. We do not agree. In this case appellant is asserting the counterclaim and setoff, not as a defense to the original cause of action, but in a proceeding brought to enforce a judgment rendered in the original suit. We find this distinction to be significant. The purpose of the compulsory counterclaim statute was to settle all issues between the parties in one and the same lawsuit, thereby avoiding multiplicity of actions. Martin v. Romes, 249 Ark. 927, 462 S.W.2d 460. However, the statute applies only to a cause of action which the defendant could maintain as an independent suit. Coats v. Milner, 134 Ark. 311, 203 S.W. 701.
The cause of action on which this counterclaim and setoff was founded arose from allegedly tortious conduct of the appellee in Texas. The facts do not indicate any connection whatsoever with Arkansas until the time of the attempted registration of the judgment. The acts in Texas were not of such a nature that the defendant could maintain a separate cause of action in the Arkansas courts. To apply the compulsory counterclaim statute to these facts would be subversive of the salutary intent of the Uniform Act to provide for a prompt summary procedure to register such judgments without furthering the purposes of the counterclaim statute to prevent piecemeal, multiplicitous litigation in Arkansas courts. It might well pose constitutional questions under the full faith and credit clause of the United States Constitution. Furthermore, the compulsory counterclaim statute was passed in 1935, so the Ark.Stat. § 29-808 would supersede it, insofar as foreign judgment registration procedures are concerned, if there is any conflict.
The order dismissing the counterclaim and setoff is affirmed. | 01-03-2023 | 10-30-2013 |
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