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https://www.courtlistener.com/api/rest/v3/opinions/1600168/ | 1 So. 3d 1113 (2009)
William L. PRESNELL, Appellant,
v.
UNEMPLOYMENT APPEALS COMMISSION, Appellee.
No. 5D07-3919.
District Court of Appeal of Florida, Fifth District.
January 16, 2009.
Bonita M. Riggens, St. Petersburg, for Appellant.
John D. Maher, Deputy General Counsel, Tallahassee, for Appellee.
LAWSON, J.
William Presnell appeals an order of the Unemployment Appeals Commission (UAC) that affirmed an appeals referee's decision to deny him unemployment benefits. The denial was based upon a finding that Presnell voluntarily left his employment without good cause. Because there is evidence in the record to support this finding, we affirm the UAC's order. In doing so, however, we must first address a threshold question regarding our authority to consider this appeal.
*1114 William Presnell lives in Brooksville, Florida, which is within our jurisdiction. He was employed by Diamond Retail Services, Inc., a North Carolina company described only as a "retail delivery and assembly company." At the time he left Diamond, Presnell was working as a "technician" performing "delivery and assembly" services for Diamond's Florida customers. The record contains no explanation of the type of goods handled by Presnell for Diamond, and identifies Presnell's job site only as "many locations" in "many cities." The evidentiary hearing in this matter was conducted by telephone, with the appeals referee located in Tallahassee, Presnell participating from Brooksville, and Diamond's representative participating from North Carolina. The record does not reveal where Presnell initially filed for benefits. He ultimately filed his notice of appeal with the Second District Court of Appeal, which sua sponte mailed it to our clerk with a short note explaining that, after review, that court had determined that the notice should have been filed with our court.
Section 443.151(4)(3), Florida Statutes, provides that UAC orders are to be reviewed by the "district court of appeal in the appellate district in which the issues involved were decided by an appeals referee." More than a decade ago, the Third District Court of Appeal applied this statute to appeals from a decision rendered after a telephonic hearing. The court found that, with respect to a telephonic hearing, "the issues involved were decided" in more than one district when parties to the hearing participated from multiple districts. Mendelman v. Dade County Public Schools, 674 So. 2d 195 (Fla. 3d DCA 1996). The opinion also contains a reasoned explanation as to why this is "the fairest interpretation of the statute." Id. at 196-97. We have consistently followed Mendelman, and have routinely decided UAC appeals from telephonic hearings filed with our court as long as one of the parties to the hearing was participating from a location within our jurisdiction. Applying Mendelman, our court is authorized to hear this appeal because Presnell participated in the hearing from Brooksville, a location within our jurisdiction.
The Second District Court of Appeal, "[w]ith some reluctance," reached a different result in Lynch v. Unemployment Appeals Commission, 988 So. 2d 25 (Fla. 2d DCA 2008). In Lynch, the Second District discussed several public policy concerns that weigh in favor of allowing a litigant to have his or her appeal heard in the district where the employment relationship is centered and where the matters at issue therefore arose. Nevertheless, the Lynch court found that it was bound by the plain language of the statute, which it believed required the appeal to be filed in the district from which the appeals referee participated in the telephonic hearing. The court basically reasoned that the issues are decided where the decision-maker is physically located during the telephonic hearing. In that case, like ours, the hearing officer initiated the telephonic hearing from an office in Tallahassee. Therefore, the Second District found that it was not authorized to consider the appeal, and transferred the case to the First District Court of Appeal for resolution.
Our research has uncovered a third interpretation of this statute, found in Egner v. Unemployment Appeals Commission, 633 So. 2d 1157 (Fla. 1st DCA 1994). In Egner, the First District read the statute as requiring the appeal to be filed in the district from which the appeals referee rendered his or her written decision in the case. Because the referee's written decision in that case was rendered from an unemployment office in St. Petersburg, the First District found that it was not authorized *1115 to consider the appeal, and transferred the case to the Second District for resolution.
We, of course, fully agree with the proposition that a statute must be interpreted in accordance with its plain and obvious meaning, if there is one. The problem here is that the statute is not particularly well-written and, in our view, cannot be applied in accordance with its plain language. A plain reading of the statute would require a litigant to file its appeal in the court with jurisdiction over the location where the appeals referee is physically located when he or she actually reaches a decision in the case. The problem with applying the statute in this fashion is that the parties have no idea where the hearing officer was physically located when she decided the case. We know where she was when she took the evidence. A written decision was rendered later, which memorializes the final result of her decision-making process. And, we know the location from which that written decision is announced. But, we have no idea whether the referee reached a final decision during the hearing or sometime later, perhaps after further reflection or after research regarding the matters at issue, and perhaps at some location outside of the jurisdiction from which she took evidence or later released the written order memorializing that decision.
The problem with the Second District's interpretation in Lynch is that it reads "[where] the issues involved were decided by an appeals referee" to mean where evidence was received by an appeals referee, and these are not really the same thing at all. A similar flaw plagues the First District's interpretation in Egner, and the Third District's interpretation in Mendelman. Each interpretation is a reasonable attempt to apply this poorly-worded statute. The problem is that a literal reading of the statute would require us to determine where the appeals referee was located when she reached her decision. And that is not remotely workable for obvious reasons.
We agree with the Second and Third Districts that the poorly-worded language of this statute does seem to be pointing toward the location of the hearing as the basis for determining district court venue (since "the issues" are "decided" as a result of the evidentiary hearing). However, we do not believe that the statutory language dictates the more narrow interpretation subscribed by the Second District in Lynch. For this reason, we will continue to follow Mendelman, and our prior practice, until the Legislature further clarifies the statute which we would encourage it to do.
Moving to the substantive issue raised on appeal, a person who voluntarily leaves a job is not entitled to unemployment benefits unless the person can demonstrate that he or she left for good cause attributable to the employer. See § 443.101(1)(a), Fla. Stat. (2007); see also, Kloepper v. Unemployment Appeals Comm'n, 871 So. 2d 997, 998 (Fla. 5th DCA 2004) ("An individual who leaves work voluntarily, as the claimant did, carries the burden to show that the leaving was with good cause attributable to the employer, in order to qualify for unemployment compensation benefits."). "Good cause" is defined as "circumstances which would impel the average, able-bodied, qualified worker to give up employment." Ritenour v. Unemployment Appeals Comm'n, 570 So. 2d 1106, 1107 (Fla. 5th DCA 1990).
Only two witnesses testified at the hearing in this case, and neither party presented any documentary evidence. Presnell testified that he left Diamond only after his manager stopped sending him work and would not return his calls. According *1116 to Presnell, the company deliberately directed virtually all work to other technicians in order to force him to leave his job. We agree that these facts, if proved, would constitute good cause attributable to Diamond. Diamond's witness, however, claimed that the company's business had simply slowed down and that "the work was actually slower for everybody and it wasn't a matter of not giving Mr. Presnell work. It is a matter of the work not being there for the entire market so to speak." According to Diamond's representative, this slow-down occurs at the same time each year; Mr. Presnell was aware of the seasonal nature of the company's business; and, Mr. Presnell left Diamond shortly before the company's work traditionally picks back up. If true, of course, these circumstances would not constitute good cause for Presnell to leave his job.
"An appeals referee is the trier of fact, and he or she is privileged to weigh and reject conflicting evidence." Ritenour, 570 So.2d at 1107 (citing David Clark & Associates v. Kennedy, 390 So. 2d 149 (Fla. 1st DCA 1980) and McCray v. Dept. of H.R.S., 384 So. 2d 980 (Fla. 3rd DCA 1980)). In this case, the referee heard the conflicting testimony and found that Presnell had not carried his burden of demonstrating good cause. On review, we cannot reweigh the evidence. Id. Accordingly, we affirm, and certify conflict with Lynch and Egner.
AFFIRMED; CONFLICT CERTIFIED.
PALMER, C.J., concurs.
GRIFFIN, J., concurs with opinion.
GRIFFIN, J., concurring specially.
All of the Florida appellate courts that have considered the meaning of section 443.151(4)(e), Florida Statutes, seem to agree that the logical and most appropriate appellate district to review an order of the commission is the one having the most direct connection with the employment relationship. It appears to be a quirk of Florida unemployment compensation law that appeal by either party to the employment relationship can be filed in diverse locations. See Fla. Admin. Code R. 60BB-6.002. Also, as the majority notes and as we often see, these cases can be connected to multiple locations involving multiple appellate districts. The employee can easily work in one district, live in the adjacent county, which can be within another district, and the employer may be headquartered in a third. That may have contributed to the difficulty with the language of the statute.
The first question I ask myself is whether the logical and appropriate answer can be found anywhere in the words of the statute that we are attempting to interpret. The phrase "appellate district in which the issues involved were decided by an appeals referee" is so odd that it must be odd for a reason. It appears to me as though the purpose of this language is to connect the appellate district to the appeal referee because his or her decision, presumably, would be sited in the place where the application for benefits was made. A case is "decided" in the place where it is pending, not where the referee was physically located at the moment the decision was made or in the place where the referee was located during the hearing. That, I think, is the reason why the phrase, "district in which the issues involved ..." was used. The thought the Legislature was intending to convey was that the commission's orders are subject to review in the appellate district in which the issues decided by an appeals referee were involved. Use of the word "involved" was not a happy choice because of its lack of precision, but I think the intent to tie the place *1117 of the appeal to the situs of the employment issue can be gleaned from the statute. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600062/ | 1 So.3d 850 (2008)
Gus WILKINS, Jr.
v.
STATE of Mississippi.
No. 2007-KA-01643-SCT.
Supreme Court of Mississippi.
December 4, 2008.
Rehearing Denied February 19, 2009.
W. Daniel Hinchcliff, Leslie S. Lee, attorneys for appellant.
Office of the Attorney General by Billy L. Gore, attorney for appellee.
Before SMITH, C.J., CARLSON and RANDOLPH, JJ.
RANDOLPH, Justice, for the Court.
¶ 1. Gus Wilkins, Jr. was indicted for the sexual battery of sixteen-year-old M.B. Following a jury trial in the Circuit Court of Lowndes County, Mississippi, Wilkins was found guilty and sentenced to twenty years in the custody of the Mississippi Department of Corrections ("MDOC"), followed by five years post-release supervision. Following denial of his post-trial motions, Wilkins filed notice of appeal.
FACTS
¶ 2. On July 26, 2006, M.B. was introduced to thirty-year-old Wilkins by his mother, Gloria Wilkins. According to M.B., Gloria told her that Wilkins was her cousin. The following evening, at approximately 9:30 or 10:00 p.m., M.B. arrived at Sims Scott Park. Shortly thereafter, M.B. *851 sent a text message to her cousin, Demetrius Palmer, requesting that he pick her up. M.B. testified that Palmer "told me he would be there in a minute . . . . But it took a long time, so I texted him and told him that I would walk." According to M.B.:
[w]hen I started to walk, [Wilkins] walked up in the park ... and it was two other guys there. And he was introducing me saying I was ... his little cousin. And he asked me where I was going. I told him I was going to Gerald's house. And he said he was going that way because he was going to his mother's house[[1]] and he will walk with me.
M.B. testified that "I thought I was safe because his mother introduced me as his cousin.... [A]nd I trusted ... his mother."
¶ 3. According to M.B., as they approached Gerald's apartment,[2] Wilkins "grabbed me by my neck and told me if I made a sound that he would snap my neck." M.B. testified that she did not scream "[b]ecause I was scared" and "I was thinking if I did say anything or if I made any noises that he probably would snap my neck. And then no one would be able to find me."[3] According to M.B., she did not see anyone outside[4] and Wilkins took her to "an old abandoned house like a block away." Inside the abandoned house, M.B. testified that Wilkins removed her clothes, laid her on the glass-laden floor, began licking her body,[5] placed his hands around her neck and "made me put my mouth on his private part[,]" and "[a]fter that ... took his private part and stuck it between my legs." M.B. stated that she did not scream or attempt to get away "[b]ecause he's bigger than me." Thereafter, according to M.B., Wilkins "walked me down the street from the abandoned house to Gerald's house and told me to tell my brothers and them that he will be down there in a minute like he didn't do anything."
¶ 4. When M.B. arrived at Gerald's apartment, Palmer testified that "she wasn't herself." According to Palmer, M.B. "was sitting there looking all sad, had little tears in her eyes." M.B. then requested that Palmer take her home. While driving, Palmer repeatedly asked M.B. what was wrong, but only after they were near her home did she discuss the incident. Upon arriving home, M.B. got in the bathtub because she "felt dirty[,]" and threw her clothes in the trash because she "didn't want them any more." Thereafter, M.B. was taken to the hospital.[6] In the *852 emergency room, M.B. recounted the incident to nurse Amy Riley, who completed a rape kit, during which a "white substance" was found in M.B.'s vaginal vault.
¶ 5. Sergeant Gary Moore of the Columbus Police Department subsequently took a written statement from M.B. and then obtained an arrest warrant against Wilkins for sexual battery. During processing at the police department, Wilkins asked Moore if he could smoke a cigarette. According to Moore, "I took him out back ... behind the police department to let him smoke. While we were standing out back, [Wilkins] just made the statement to me that he did not have sex with [M.B.]." Moore then "asked [Wilkins] if he did not have sex with her, would he submit to a DNA test by drawing ... blood. And he said that he would."
¶ 6. Wilkins subsequently was indicted for sexual battery pursuant to Mississippi Code Annotated Section 97-3-95 (Rev. 2006).[7] The indictment provided, in pertinent part, that Wilkins "on or about the 27th day of July, 2006 ... did unlawfully, wilfully, and feloniously, engage in sexual penetration with [M.B.], without her consent...." (Emphasis added). On September 4, 2007, the jury trial commenced. Wilkins's opening statement framed the major issue for trial as "whether or not the sexual encounter between [M.B.] and Wilkins was consensual or not." The parties stipulated that "upon DNA testing, it was determined that [Wilkins] was ... the source of the semen found in [M.B.'s] vaginal vault." After presenting the aforementioned facts, see paragraphs 2-5 supra, the State rested and Wilkins moved for a directed verdict, which was denied by the circuit court. Wilkins then presented testimony from three witnesses, none of whom offered substantive proof on the issue of consent. Thereafter, the jury found Wilkins guilty as charged. At the sentencing hearing, the circuit court sentenced him to serve a term of twenty years in the custody of the MDOC to be followed by five years post-release supervision. On September 7, 2007, Wilkins filed a "Motion for Judgment Notwithstanding the Verdict or in the alternative for New Trial," which was denied by the circuit court. Wilkins then timely filed notice of appeal.
ISSUE
¶ 7. This Court will consider:
(1) Whether the jury verdict was against the sufficiency and weight of the evidence.
ANALYSIS
I. Whether the jury verdict was against the sufficiency and weight of the evidence.
A. Sufficiency of the evidence.
¶ 8. Mississippi Code Annotated Section 97-3-95(1)(a) (Rev.2006) provides that "(1) [a] person is guilty of sexual battery if he or she engages in sexual penetration with: (a) Another person without his or her consent...." Miss.Code Ann. § 97-3-95(1)(a) (Rev.2006) (emphasis added). As the parties stipulated that Wilkins was "the source of the semen," the only disputed element is whether "the sexual encounter between [M.B.] ... and Wilkins was consensual or not."
¶ 9. Wilkins made a post-trial motion for judgment notwithstanding the verdict ("JNOV"), which was denied by the circuit court. "A motion for J.N.O.V. challenges *853 the legal sufficiency of the evidence." Ivy v. State, 949 So.2d 748, 751 (Miss.2007) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). In Bush v. State, 895 So.2d 836 (Miss.2005), this Court set out the standard of review for legal sufficiency, stating:
whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows "beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction." [Carr v. State, 208 So.2d 886, 889 (Miss.1968)]. However, this inquiry does not require a court to[:]
"ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt." Instead, the relevant question is 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.
Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citations omitted) (emphasis in original). Should the facts and inferences considered in a challenge to the sufficiency of the evidence "point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty," the proper remedy is for the appellate court to reverse and render. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)) .... However, if a review of the evidence reveals that it is of such quality and weight that, "having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense," the evidence will be deemed to have been sufficient. Edwards, 469 So.2d at 70 ....
Bush, 895 So.2d at 843.
¶ 10. This Court has stated that:
[o]ur case law clearly holds that the unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized. The victim's physical and mental condition after the incident, as well as the fact that the incident was immediately reported is recognized as corroborating evidence.
Ladnier v. State, 878 So.2d 926, 931 (Miss. 2004) (quoting Collier v. State, 711 So.2d 458, 462 (Miss.1998)). According to M.B., Wilkins grabbed her and threatened to "snap" her neck, led her into an abandoned house, and then sexually battered her. Following the incident, Palmer testified that M.B. "wasn't herself" and "had little tears in her eyes." Soon thereafter, M.B. reported the incident to Palmer. M.B. added that when she arrived home, she threw away her clothes and took a bath because she "felt dirty." At the hospital, the version of the incident which M.B. recounted to Riley was substantively identical to her testimony. For instance, according to Riley:
[M.B.] said that she was walking home with a man named Mr. Wilkins, that she found out was her cousin. And that he, on the way home, kind of had walked behind her and put his arm around her *854 neck and told her to be quiet or that he would snap her neck ... if she was loud.
So, then he proceeded to take her pants off and continue with the sexual assault.
Regarding the lack of consent, this Court finds no "other credible evidence" to discredit or contradict M.B.'s testimony. Id. While M.B. did not identify Wilkins in the courtroom, the parties stipulated that he was "the source of the semen...." As such, this and any other minor inconsistencies between M.B.'s testimony and that of other witnesses were matters of credibility to be weighed and resolved by the jury. See Ladnier, 878 So.2d at 931; Collier, 711 So.2d at 462 ("[o]ur case law is axiomatic on the proposition that the jury is arbiter of the credibility of testimony."). While Wilkins attacks M.B.'s credibility, her testimony was not sufficiently discredited to warrant overruling the verdict. Accordingly, "any rational juror could have found beyond a reasonable doubt that all of the elements had been met by the State[,]" Bush, 895 So.2d at 844, in proving sexual battery. Therefore, this Court finds that the circuit court did not err in denying Wilkins's motion for JNOV, and this issue is without merit.
B. Weight of the evidence.
¶ 11. Wilkins made a post-trial motion for new trial, which was denied by the circuit court. "A motion for new trial challenges the weight of the evidence. Sheffield v. State, 749 So.2d 123, 127 (Miss. 1999). A reversal is warranted only if the trial court abused its discretion in denying a motion for new trial." Ivy, 949 So.2d at 753 (emphasis added). In Bush, this Court set out the standard of review for weight of the evidence,[8] stating:
[w]hen reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herring v. State, 691 So.2d 948, 957 (Miss.1997). We have stated that on a motion for new trial:
the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.
Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000) .... [T]he evidence should be weighed in the light most favorable to the verdict. Herring, 691 So.2d at 957.
Bush, 895 So.2d at 844.
¶ 12. Viewing the evidence discussed in Issue I. supra "in the light most favorable to the verdict," this Court cannot conclude that the circuit court erred in affirming the jury's verdict, thus "sanction[ing] an unconscionable injustice." Id. In short, the evidence does not "preponderat[e] heavily against the verdict." Id. (quoting Amiker, 796 So.2d at 947). Accordingly, this Court finds that the circuit court did not abuse its discretion in denying Wilkins's motion for new trial, and this issue is without merit.
CONCLUSION
¶ 13. Based upon the aforementioned analysis, this Court affirms the order of the Circuit Court of Lowndes County which denied Wilkins's "Motion for Judgment *855 Notwithstanding the Verdict or in the alternative for New Trial."
¶ 14. CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE (5) YEARS POST-RELEASE SUPERVISION, WITH CONDITIONS, AFFIRMED.
SMITH, C.J., WALLER AND DIAZ, P.JJ., CARLSON, DICKINSON AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., NOT PARTICIPATING.
NOTES
[1] M.B. testified that Gerald lived in the same apartment complex as Gloria Wilkins.
[2] M.B. testified that they were approximately twenty feet away.
[3] M.B. estimated that she was 5'2" and weighed 137 pounds at the time, while Wilkins was 6'1" and weighed 180 pounds. Officer Louis Alexander of the Columbus Police Department also testified that Wilkins was much bigger and stronger than M.B.
[4] M.B. estimated that it was then 10:20 p.m. During Wilkins's case-in-chief, he offered the testimony of area resident Diane DeGraffenreid that on summer evenings, even around 9:30 or 10:00 p.m., there are "[k]ids out riding their bikes, playing, or playing ball, or somebody ... usually out doing the yard or just out barbecuing...." However, DeGraffenreid further testified that "[o]n that particular night, I don't remember anything."
[5] At this point, M.B. testified that Wilkins stated "he had been watching me for a while."
[6] According to M.B., "on our way to the hospital, we stopped at a card game where we found [Gloria] and told her about it. She said do what you have to do." Gloria testified that M.B. had informed her that the incident occurred at Sims Scott Park.
[7] Wilkins was also indicted for burglary of a dwelling, which "is not implicated in this appeal."
[8] "A motion for a new trial falls within a lower standard of review than does that of a judgment notwithstanding the verdict or a directed verdict." Sheffield, 749 So.2d at 127 (emphasis added). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600088/ | 173 N.W.2d 347 (1969)
STATE of Minnesota, Respondent,
v.
LeRoy Edward BOND, Appellant.
No. 41219.
Supreme Court of Minnesota.
December 12, 1969.
*348 C. Paul Jones, Public Defender, Robert E. Oliphant, Asst. Public Defender, Minneapolis, for appellant.
Douglas M. Head, Atty. Gen., Richard H. Kyle, Sol. Gen., J. Dennis O'Brien, Sp. Asst. Atty. Gen., St. Paul, Les Karjala, County Atty., Carlton, for respondent.
Heard before KNUTSON, C. J., and ROGOSHESKE, SHERAN, PETERSON, and FRANK T. GALLAGHER, JJ.
OPINION
PER CURIAM.
Defendant appeals from a judgment of a conviction of the crime of rape entered following a jury verdict of guilty.
During the early morning hours of February 25, 1967, defendant was driving an automobile in which complainant and Richard Brigan were passengers. They were ostensibly looking for complainant's fiance. Defendant stopped the car on a deserted dirt road, and both defendant and Brigan had sexual intercourse with complainant.
Defendant testified that complainant consented to intercourse with both defendant and Brigan. However, complainant testified that she resisted both men by struggling and hollering. She testified that her panties were torn and that she received bruises on her shoulders, upper arms, upper legs, and calves. Other witnesses also testified to her bruises.
1. A lack of consent was the key to defendant's conviction, and defendant claims the evidence will not sustain a finding of no consent. In reviewing the evidence, this court can only consider whether the jury could reasonably find that the complainant did not consent. State v. Norgaard, 272 Minn. 48, 136 N.W.2d 628. The record satisfies us that a finding of no consent was justified. While there is much conflicting evidence in this case, the jury was free to believe complainant's story *349 even though she had previously been convicted of perjury.
2. Defendant claims that he was improperly impeached when he was asked if he had been convicted of disturbing the peace and of stealing gas. Our impeachment statute, Minn.St. 595.07, has been interpreted to allow impeachment by misdemeanor convictions regardless of whether the crime is one which affects credibility. Thompson v. Bankers' Mutual Cas. Ins. Co., 128 Minn. 474, 151 N.W. 180. Much can be said for not allowing misdemeanor convictions to be used for impeachment, for allowing only crimes which affect credibility directly to be used for impeachment, and for allowing the trial court discretion as to which crimes to admit for impeachment. However, in State v. West, Minn., 173 N.W.2d 468, filed November 21, 1969, we recently considered the various impeachment rules, and we are not prepared to change the law in Minnesota.
Defendant, in addition, contends that the present impeachment procedure violates the Fourteenth Amendment. But we believe it does not. Although the current practice is prejudicial, it is not so prejudicial in this instance as to deny the defendant the protection of due process.
3-4. Defendant claims that it was not shown that his convictions were not municipal ordinance violations. If they were merely ordinance violations, they would not be admissible. State v. Currie, 267 Minn. 294, 126 N.W.2d 389; Carter v. Duluth Yellow Cab Co., 170 Minn. 250, 212 N.W. 413. However, defendant did not object to the admission of these convictions on this ground at trial. Therefore, having waived this objection at the time of trial, he cannot now raise it on appeal. Graves v. Bonness, 97 Minn. 278, 107 N.W. 163; State v. Sauer, 217 Minn. 591, 15 N.W.2d 17. In any event, on appeal defendant has the burden to show that the convictions were only ordinance violations, and he has not done so.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600103/ | 1 So.3d 799 (2008)
Elaine SETLIFF, et al.
v.
Aaron SLAYTER, et al.
No. 08-1337.
Court of Appeal of Louisiana, Third Circuit.
January 7, 2009.
Henry Howard Lemoine, Jr., Attorney at Law, Pineville, LA, for Defendant/Appellant Aaron Slayter.
Thomas D. Davenport, Jr., The Davenport Firm, Alexandria, LA, for Plaintiffs/Appellees Elaine Setliff and Louisiana Lagniappe Realty, LLC.
Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MARC T. AMY, Judges.
AMY, Judge.
Upon the lodging of the appeal record in the instant suit, this court sue sponte issued a rule to show cause to the defendant/appellant why the appeal should not be dismissed as having been taken from a partial final judgment which has not been designated as immediately appealable pursuant to La.Code Civ.P. art. 1915(B). For the reasons assigned, we dismiss the appeal.
At issue in the instant appeal is the trial court's judgment granting the plaintiffs' motion for summary judgment, finding that the defendant breached his contractual agreement, entitled a "Listing Agreement," with the plaintiffs. Judgment was signed on June 16, 2008, and notice was sent the same day. No motion for new trial was filed. After the trial court rendered judgment, the defendant filed an application for supervisory writs, docketed in this court under number CW-08-897. On August 12, 2008, this court denied the writ application finding the following:
Appellate courts generally will not exercise their supervisory jurisdiction when an adequate remedy exists by appeal. Douglass v. Alton Ochsner Medical Found., 96-2825 (La.6/13/97), 695 So.2d 953. The judgment at issue grants a *800 motion for partial summary judgment. Although this judgment falls under the provisions of either La.Code Civ.P. art. 1915(A) or (B), we find that the defendant-relator, Aaron Slayter, has an adequate remedy by appeal.
After this court issued its ruling, the defendant filed a motion for appeal on August 14, 2008. The trial court granted the motion for appeal without designating the judgment as appealable and without giving reasons. The instant appeal was lodged in this court on October 31, 2008.
The defendant submits that the judgment from which appeal is being sought is appealable pursuant to La.Code Civ.P. art. 1915(B) and submits that despite the lack of designation, this court should maintain the judgment. As mentioned above, the judgment as to which an appeal is being sought determined that the defendant had breached the contractual agreement he had with the plaintiffs. This constitutes a judgment on a motion for partial summary judgment as to a single issue. Accordingly, we find this judgment falls within the scope of La.Code Civ.P. art. 1915(B), thus, requiring designation as to why the judgment should be immediately appealable.
In Succession of David Jones, Jr. a/k/a David Jones, III a/k/a David Jones, 08-1088, pp. 2-4 (La.App. 3 Cir. 10/29/08), 999 So.2d 3, this court set forth the following discussion examining the procedure to be followed in reviewing a 1915(B) judgment that was not designated as appealable by the trial court:
The trial court failed to designate the judgment from which appeal is being sought as immediately appealable. Because the trial court did not designate the judgment as final or give reasons why the judgment should be allowed an immediate appeal, we find the de novo standard of review is applicable. See generally R.J. Messinger, Inc. v. Rosenblum, XXXX-XXXX (La.3/2/05), 894 So.2d 1113.
Louisiana Code of Civil Procedure Article 1841 provides that a final judgment is one that "determines the merits in whole or in part." Louisiana Code of Civil Procedure Article 1915 further provides, in pertinent part, the following:
A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all the parties, defendants, third party plaintiffs, third party defendants, or intervenors.
....
B. (1) When a court renders a partial judgment ... as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties shall ... not constitute a final judgment for the purposes of appeal.
In Messinger, 894 So.2d 1113, the supreme court found that a trial court should give express reasons why there is no just reason for delay of an appeal of a *801 partial final judgment. However, should the trial court fail to certify a partial final judgment, the Messinger court found that an appellate court cannot summarily dismiss the appeal. Instead, when the trial court fails to give reasons for designating a partial summary judgment as appealable, the Messinger court held that the appellate court should make a de novo determination by looking to the record for the existence of any justification for maintaining the appeal. The Messinger court additionally found that the appellate court could alternatively issue a rule to show cause why the appeal should not be dismissed.
Recently, in Fakier v. State, Bd. of Supervisors for Univ. of La. Sys., 08-111 (La.App. 3 Cir. 5/28/08), 983 So.2d 1024, this court examined the issue of whether a partial judgment was a final judgment for purposes of an immediate appeal. The court noted that Messinger, 894 So.2d 1113, adopted from Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360 (3rd Cir.1975), several non-exclusive factors for use by trial courts when determining certification of a judgment and for use by appellate courts when conducting de novo reviews when no reasons are given by the trial court for designation. The factors for examining certification are:
1) The relationship between the adjudicated and unadjudicated claims;
2) The possibility that the need for review might or might not be mooted by future developments in the trial court;
3) The possibility that the reviewing court might be obliged to consider the same issue a second time; and
4) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.
Fakier, 983 So.2d at 1029, quoting Messinger, 894 So.2d at 1122.
As in Succession of Jones, we find that remanding this matter for designation would be a waste of judicial resources, and therefore, we will proceed to review whether an immediate appeal is appropriate. La. Const. art. 5, § 10; La.Code Civ.P. art. 2201. For the reasons given infra, we find that the judgment in the instant case should not be designated immediately appealable.
Applying the factors set forth in Fakier, we find that a reversal of the judgment sub judice, which granted a motion for partial summary judgment, will not terminate the entire litigation. In addition, the trial court could revise its ruling on the motion for partial summary judgment at any time prior to final judgment pursuant to La.Code Civ.P. art. 1915(B)(2), thus rendering the need for this appeal moot. We find that judicial resources would be wasted by the appellate review of the partial summary judgment at this time, considering the probability of a later appeal involving the adjudication of the remaining claims. Thus, we find that this matter is not ripe for immediate appeal. Rather, we find that review of this ruling can be made upon the rendition of the final judgment adjudicating all remaining issues in this action. Therefore, we dismiss the appeal at appellant's cost.
APPEAL DISMISSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600105/ | 1 So.3d 516 (2008)
STATE of Louisiana
v.
Cleveland LAWSON.
No. 08-KA-123.
Court of Appeal of Louisiana, Fifth Circuit.
November 12, 2008.
*519 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Tonia Williams, Kenneth P. Bordelon, William C. Credo, III, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, State of Louisiana, Gretna, Louisiana, for Plaintiff/Appellee.
Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and MADELINE JASMINE, Pro Tempore.
MARION F. EDWARDS, Judge.
Defendant-appellant, Cleveland Lawson ("Lawson"), was charged with second degree murder in violation of LSA-R.S. 14:30.1. Following a plea of not guilty and a Motion to Determine Competency, Lawson was found competent to stand trial. Prior to trial, the State filed a Notice of Intent to use certain statements and admissions as well as a Notice of Intent to Use Evidence of Other Bad Acts. Lawson filed a Motion in Limine to Exclude Evidence of Other Crimes. After a hearing, *520 the trial judge granted most of the State's requests, including the admissibility of a 911 tape and a letter written by Lawson, which was found at booking. The case was tried before a twelve-person jury, which found Lawson guilty as charged. His motion for new trial and post-verdict judgment of acquittal was denied. Afterwards, Lawson waived sentencing delays and was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Lawson appeals.
At trial, Kevin Curley ("Curley") testified that, on February 5, 2005, he and Lawson went to a gun store so Lawson could pick up the gun he had purchased one week prior. Afterwards, they went back to their apartment in Metairie. When they got home, they loaded the gun, and Curley showed Lawson how to shoot it. The gun was not working properly, so they decided to bring it back in a couple of days. Afterwards, one of them put the gun on top of the entertainment center in the living room. Curley wanted to put the gun on a shelf in the back room, but Lawson wanted to leave the gun on the entertainment center.
Meanwhile, Jonathan Green ("Green") drove the victim, Jamika Davalie ("Davalie"), to the apartment where she had previously lived with Lawson, her ex-boyfriend, so she could pick up her mail. Green waited in his car. Davalie opened the door of the apartment using her key and went in, telling Lawson that she had come to get her "stuff." Lawson, who was lying on the sofa, got up and said he would get it for her. He walked to the back room, and Davalie followed him, saying she would get it herself. Curley went to the kitchen and then, after a minute or two, heard a loud noise.
Curley testified that Lawson subsequently walked out of the bedroom with a puzzled look on his face saying he could not believe he had "done it." When Curley asked him what he meant, Lawson, who was holding the gun, told him he had shot Davalie. Curley stated that they had to "get out of here." Lawson put the gun in his duffel bag, and he and Curley left the apartment and caught a bus. During their conversation, Lawson told Curley that the shooting was an accident.
When Davalie did not return to the car, Green called her cell phone several times, but there was no answer. Green subsequently went to a gas station where he used the phone to call 911. He informed the dispatcher that Davalie had gone to the apartment but did not return, after which he went back to the apartment to wait for the police.
Deputy Gerard Patterson ("Deputy Patterson") arrived at the apartment complex a few minutes later and spoke to Green. The deputy knocked on the door of the apartment several times but got no answer. He opened the unlocked door and announced his presence, but there was still no answer. When he looked around, he saw Davalie lying on the bedroom floor with a gunshot wound to the head. Deputy Patterson called for medical services and for homicide detectives.
In the meantime, Curley and Lawson got off the bus, and Lawson called his sister and his cousin. They came to where Curley and Lawson were waiting and convinced Lawson to turn himself in. Lawson's sister and cousin drove Curley and Lawson back to the scene where the police were waiting. When Lawson exited the vehicle, he gave the duffel bag containing the gun to Deputy Scott Guillory. The deputy then transported him to the criminal investigations bureau where Detective David Morales ("Detective Morales") took a statement from him.
*521 In his statement, Lawson said that he and Davalie had broken up one month prior. He stated that, on the day in question, he went to get Davalie's mail and, when he turned around, Davalie had the gun pointed (at him). He claimed that he took the gun out of her hand and that, as he was pulling back, it accidentally went off. Lawson explained that he was four feet away from Davalie when the gun discharged.
After Detective Morales took defendant's statement, he went through Lawson's belongings in his duffel bag. Among the items he found was an undated letter addressed to Davalie and signed by Lawson.
Captain Timothy Scanlan ("Captain Scanlan"), an expert forensic scientist, testified that the gun was operable and in good working order and that it did not malfunction even after extensive testing. He also testified that the victim had no gunshot residue on her hands and that Lawson had none after the first test but, after the second test, the results were positive on his right hand.
Dr. Fraser Mackenzie ("Dr.Mackenzie"), an expert forensic pathologist, testified that he conducted the autopsy of Davalie. He further testified that the cause of death was a gunshot wound to the head with perforating wounds to the brain and that the manner of death was homicide. Dr. Mackenzie ruled out accidental death and suicide, testifying that the gun was placed directly on the head and discharged, and that there was no possibility that the gun was four feet away when the shot was fired.
The State also presented evidence of two prior incidents involving Lawson and Davalie. The first incident occurred on January 1, 2005, approximately one month before Davalie was killed. On that day, Deputy Chester Kowalski ("Deputy Kowalski") issued a misdemeanor summons to Lawson for domestic abuse battery, when Davalie stated Lawson had hit her in the face and knocked her down. The audiotape of the 911 call made by Davalie in connection with that incident was played for the jury.
The second incident occurred a few days before Davalie was killed. On that day, Davalie and her sister, Chaundrella Singer ("Singer"), were working at Memorial Medical Center when Singer received a call from Davalie, who was hiding in the restroom afraid to come out because Lawson had appeared at the hospital. When Davalie exited, Singer asked Lawson what he wanted, but he used vulgarities and insisted on talking only to Davalie. Singer called security, who asked Lawson to leave the premises. When Singer and Davalie walked to Davalie's car shortly thereafter, Lawson was standing by the car trying to intimidate them, cursing and insisting on talking only to Davalie. There was no police report filed.
After the State rested its case, Curley testified that Davalie called the apartment constantly and that he and Lawson asked her to stop calling. Annette Lawson, defendant's sister, testified that Lawson called and told her to come pick him up on the day of the shooting. She also testified that Lawson told her he accidentally shot Davalie.
Lawson testified that, on the day of the shooting, he was not expecting Davalie to come over. When she came into the apartment without knocking, she was cursing and irate with him. Lawson went into the bedroom, and Davalie followed him in there. He denied picking up the gun from the top of the entertainment center. When he turned around, he saw Davalie with the gun pointing at him, and her hand was shaking. After a while, Lawson *522 lunged for the gun, and they struggled. Lawson finally got the gun out of her hand, and as he was coming back, his finger accidentally hit the trigger. He denied pressing the gun against her forehead.
Lawson testified that he did not hit Davalie during the January 1, 2005 incident. He also testified that he did not go to Memorial Medical Center and intimidate Davalie. With respect to the letter found in his bag, Lawson explained that he was angry at Davalie and wrote the letter that day to inform her that he was going to move. He claimed that he was not contemplating suicide when he wrote that letter, and he explained that he never mailed the letter or delivered it to her. Regarding the gun, Lawson said he bought it to protect himself since he got off work between 2:00 and 3:30 a.m. and had to walk a long way home. He claimed that he did not intend to use the gun on Davalie.
During rebuttal, Captain Scanlan testified that the gun could not have been accidentally discharged, and that Lawson's version of the incident was highly improbable.
On appeal, Lawson argues that the evidence was legally insufficient to support his conviction because the State failed to prove he had the specific intent to kill or to inflict great bodily harm. He contends that the shooting was either an accident or justifiable homicide, asserting that the evidence presented proves, at most, that he was guilty of manslaughter. He also urges that the jury convicted him because of the inadmissible other crimes evidence and because it did not receive a justifiable homicide instruction.
In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt.[1] In the instant case, to prove second degree murder, the State was required to prove (1) the killing of a human being, and (2) that the defendant had specific intent to kill or inflict great bodily harm. LSA-R.S. 14:30.1(A)(1).
Specific intent is defined as "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." LSA-R.S. 14:10(1). The determination of specific criminal intent is a question of fact.[2] Specific intent may be inferred from the circumstances and from the defendant's actions and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim's injuries.[3]
Lawson argues that the State failed to prove that he had the specific intent to kill or to inflict great bodily harm and contends that the shooting was either an accident or justifiable homicide. A homicide is justifiable "[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life *523 or receiving great bodily harm and that the killing is necessary to save himself from that danger." LSA-R.S. 14:20(A)(1). Lawson also argues that the evidence presented proves, at most, that he was guilty of manslaughter. LSA-R.S. 14:31(A)(1) defines manslaughter as a homicide which would be first or second degree murder, but the offense is committed in "sudden passion" or "heat of blood" immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed. LSA-R.S. 14:31(A)(1).
Sudden passion and heat of blood distinguish manslaughter from murder, but they are not elements of the offense.[4] Rather, they are mitigatory factors which may reduce the grade of the offense. In order to be entitled to the lesser verdict of manslaughter, the defendant is required to prove the mitigatory factors by a preponderance of the evidence.[5] The question for this Court on review is whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the mitigatory factors were not established by a preponderance of the evidence.[6] Whether sufficient provocation existed for the reduction of the grade of the offense to manslaughter is a question to be determined by the jury under the standard of the average or ordinary person, one with ordinary self-control.[7]
In the instant case, the evidence shows that Lawson and the victim ended their relationship a month before the shooting and that he was angry at her, in part, because he thought she was cheating on him. Lawson purchased the gun three weeks later. On the day of the incident, he brought the gun home from the store, loaded it, and placed it on the top of the entertainment center. The victim called Lawson sometime that day to inquire about her mail. According to Curley, Lawson had been lying on the sofa watching television and was not angry when the victim arrived prior to the incident, which occurred within a minute or two of her arrival. She entered the apartment unannounced, as she was prone to do, to get her mail, and when Lawson walked to the back room, the victim followed. None of Lawson's testimony indicated that he was caught in the throes of "sudden passion." Physical threats or actions on the part of the victim have been found to be sufficient provocation.[8] However, on review, the totality of the evidence does not support the claim that he shot the victim in "sudden passion" or "heat of blood." None of the evidence presented qualifies either as provocation sufficient to deprive an average person of his self-control and cool reflection, or as an event that would cause him to commit murder in sudden passion.
Although Lawson claimed that he shot the victim during a struggle, Dr. Mackenzie ruled out accidental death, explaining *524 that the gun was placed directly on the victim's head and discharged. Dr. Mackenzie also testified that there was no possibility that the gun was four feet away from the victim when the shot was fired, as Lawson claimed in his statement. Captain Scanlan testified that the gun could not have been accidentally discharged, that it was working properly, and that Lawson's version of the incident was highly improbable. The jury obviously found the State's witnesses more credible than Lawson, and the credibility of witnesses will not be reweighed on appeal.[9]
Considering the circumstances, Lawson's actions, and the extent and severity of the victim's injuries, we find the evidence was constitutionally sufficient to support the jury's finding that Lawson had the specific intent to kill or inflict great bodily harm to Davalie. Further, the act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with specific intent to kill[10] Viewing the evidence in the light most favorable to the State, a rational trier of fact could have found beyond a reasonable doubt that the evidence was sufficient to support the conviction.
Lawson also argues that the trial court erred by admitting evidence of other crimes or bad acts at trial, specifically objecting to the introduction of an audiotape of two 911 calls made on January 1, 2005 and the letter found after he was arrested. He also argues that the audiotape of the 911 calls was admitted in violation of Crawford v. Washington.[11]
In the pre-trial hearing on the State's Notice of Intent and Lawson's Motion in Limine, the State presented the testimony of Singer, who testified regarding the Memorial Medical Center incident. Deputy Kowalski testified regarding the January 1, 2005 incident, and Detective Morales testified regarding the letter discovered in Lawson's duffel bag after he was arrested for the victim's murder. The testimony of those witnesses at the hearing was similar to their trial testimony, except that of Deputy Kowalski was more detailed. Detective Morales testified at the hearing that he discovered a handwritten letter, addressed to the victim and signed by Lawson, in Lawson's duffel bag after he was arrested. The letter provides as follows:
Jamika
My time have [sic] come to an end so don't worry or be sad I'm in a better place and happy. Sorry for hurting you. F____k that[.] I'm going to tell you how I really feel. You B____ch everytime we like [sic] I'm the only one who did wrong. You f____ked other men in our house. All you ever did was complain know [sic] matter [sic] I tried to do for you. You always say you gave me everything but [sic] did you do for me[?] Never got a Christmas, Valentine's or Birthday gift from you but I gave to you. I paid all the bills around here [sic] you may have took [sic] out a loan but I paid it back not you. So you know what[?] It is your fault that I'm gone and you have to live with it. You never loved me if you *525 did you wouldn't have f____ked every man you met. You said I lied about everything but you lied mored [sic] than me. How could you cheat on me[?] I loved you. You killed me like you did your unborn child and I wish you rot in hell for that you whore.
Cleveland
The victim made two 911 calls. During the first call, she asked the operator to send a police officer to her apartment. In response to questioning, the victim told the operator that her boyfriend, later identified as Lawson, was throwing her "stuff" out but that they were both on the lease.
During the second call made a minute later, the victim said she had just called asking for the police. She then said frantically, "Let me go. My boyfriend just punched me in the face and threw me on the floor and I need the police to get here as soon as possible." The victim's voice was shaking. In response to questioning, the victim stated that her boyfriend was still there and that she did not need medical attention. She indicated that Lawson had punched her in the face and hit her in the eye, and that her eye was red, but not swollen, because it had just happened.
In the background, Lawson can be heard yelling and cursing at the victim, and the victim was crying at that point. The operator asked if that was Lawson fussing in the background, and the victim answered affirmatively. She also answered affirmatively when the operator asked her if she wanted to stay on the phone until the police arrived. In response to questioning, the victim said she was home alone with Lawson but that he did not have any weapons that she knew of. When the operator asked what he was doing, the victim said that he was moving her "stuff." The victim advised the operator that a key was stuck in the front door, but that the police could get in through the sliding door. She also told the operator what Lawson was wearing.
The trial judge found that the letter, the audiotape of the 911 calls the victim made on January 1, 2005, and evidence of the Memorial Medical Center incident were admissible.
Evidence of other crimes or bad acts committed by a criminal defendant, generally not admissible at trial, may be admitted by certain statutory and jurisprudential exceptions when evidence of other crimes tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character.[12] Such evidence is allowed to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding to such an extent that the State could not accurately present its case without reference to the prior bad act. LSA-C.E. art. 404(B)(1).
One of the factors enumerated in the article must be at issue, have some independent relevance, or be an element of the crime charged[13] and the probative value of the extraneous evidence must outweigh its prejudicial effect. LSA-C.E. art. 403. The defendant bears the burden to show that he was prejudiced by the admission of the other crimes evidence.[14] Absent an abuse of discretion, a trial court's *526 ruling on the admissibility of evidence pursuant to LSA-C.E. art 404(B)(1) will not be disturbed.[15]
In the instant case, Lawson argued that the shooting was accidental. Because intent was a material issue genuinely contested at trial, evidence of his prior act of violence toward the victim, i.e., the audiotape of the 911 calls, was admissible as it provided proof of his intent at the time of the offense to kill the victim or inflict great bodily harm on her.[16]
For evidence of motive to be independently relevant, it must be factually peculiar to the victim and the charged crime.[17] In this case, the State could not place the circumstances of the offense in their proper context without reference to the nature of the relationship existing between the victim and the Lawson. The tapes and letter demonstrate Lawson's ill will toward the victim because of their troubled relationship and its dissolution, and the primary purpose of the evidence was not to prove Lawson's bad character but to illustrate the volatile nature of his relationship with the victim. We find the evidence was relevant to show a motive for an otherwise apparently senseless shooting[18] and find no error in the admission of the tapes and letter.
In addition, admission of the tapes does not violate Crawford. Crawford held that testimonial hearsay statements may be admitted as evidence at a criminal trial only when the declarant is unavailable to testify and the defendant has had a prior opportunity to cross-examine the declarant. Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.[19] In Davis v. Washington,[20] the court noted that, on the 911 tapes, the victim was speaking about events as they were happening rather than describing past events, that any reasonable listener would recognize that the victim was facing an ongoing emergency, and that the statements elicited were necessary to resolve that emergency.
On review of the audiotape of the 911 calls in the present case, it is clear that the primary purpose of the statements and the questioning by the 911 operator was to address and resolve an ongoing emergency. During those calls, the victim was speaking about events as they were actually happening, not describing past events. The victim's calls were plainly calls for help against a physical threat, and the statements elicited by the dispatcher were necessary to evaluate and resolve the present emergency and to provide the required police assistance rather than to learn what happened in the past. Additionally, the victim's frantic answers were provided over the phone in an unsafe environment. In light of the foregoing, we find the statements the victim made during the 911 calls *527 were not testimonial and, therefore, their admission did not violate the Confrontation Clause.
Lawson also urges that the trial court erred in refusing to give the jury a charge regarding justifiable homicide. He contends that an instruction on justifiable homicide was warranted because the incident was arguably a justifiable homicide, since he testified that the victim was the aggressor.
The record reflects that the court had a charge conference in chambers and, at that time, defense counsel indicated that the general charges proposed by the court were acceptable. Near the end of trial, the defense requested the following special instructions regarding justifiable homicide: (1) if defendant raises the defense of justification, the burden then shifts to the State to prove that the conduct was not justified; and (2) a reading of LSA-R.S. 14:20, the statute defining justifiable homicide.
The trial judge stated that he did not believe that a justifiable homicide charge was appropriate because the defense presented at trial was that the shooting was an accident, not justifiable homicide. Lawson urges that his rights were prejudiced because, as evidenced by their questions, the jury was torn on the issue of "who started it." The jury asked how many times the victim called Lawson, the length of each call, and the time the gun was picked up.
LSA-C.Cr.P. art. 802 mandates that the trial court instruct the jury on the law applicable to each case. The court is required to charge the jury on the law applicable to any theory of defense, when properly requested, which the jurors could reasonably infer from the evidence.[21] Failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right.[22] When a special jury charge is not reduced to writing for presentation to the court, a trial judge may properly refuse to give such a charge. See, LSA-C.Cr.P. art. 807.[23] Article 807 also states that a requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly pertinent and correct. The evidence presented at trial must support the requested special charge.[24]
On appeal, Lawson admits that he shot and killed the victim but contends the evidence showed that the shooting was either an accident or committed in self-defense. In the instant case, Lawson testified that the victim pointed the gun at him and that it accidentally discharged during a struggle. We note that Lawson was larger than the victim, and there was no evidence that she had been any threat to him. The evidence showed that the gun would not have discharged accidentally, that Lawson shot her in the head at close range and, after doing so, did not attempt to obtain medical attention for her but, instead, fled the scene. Self-defense, in the present case, was a hypothetical argument lacking *528 any supporting evidence, and the jury's questions do not reveal ambivalence on this issue.
Additionally, defense counsel fully argued in his opening statement and closing argument that Lawson shot the victim in self-defense. Because he was able to present his argument about self-defense to the jury, there was no showing that he was prejudiced by the failure of the trial court to give the requested special jury charge.[25] Under all these circumstances, the trial court did not err in refusing to give the requested special charges.
This assignment of error is without merit.
PATENT ERROR REVIEW
We have reviewed the record for errors patent and find none.
For the foregoing reasons, the conviction and sentence are affirmed.
AFFIRMED
JASMINE, J., Concurs with Reasons.
JASMINE, J., Concurring with Reasons:
I find that the trial court erred in failing to give the requested charge on justifiable homicide. However, I find that the trial court's failure to give the requested charge would not likely have changed the result, and therefore, I concur in the majority opinion that affirms defendant's conviction.
NOTES
[1] Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).
[2] State v. Seals, 95-0305, p. 6 (La. 11/25/96), 684 So.2d 368, 373, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997); State v. Gant, 06-232, p. 8 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1111, writ denied, 06-2529 (La.5/4/07), 956 So.2d 599.
[3] State v. Graves, 99-113, p. 3 (La.App. 5 Cir. 8/31/99), 740 So.2d 814, 816, writ denied, 99-3013 (La.3/31/00), 759 So.2d 68.
[4] State v. Johnson, 01-1362, pp. 11-12 (La. App. 5 Cir. 5/29/02), 820 So.2d 604, 610, writ denied, 02-2200 (La.3/14/03), 839 So.2d 32.
[5] Id.
[6] State v. Lombard, 486 So.2d 106, 111 (La. 1986).
[7] State v. Deal, 00-434, p. 5 (La. 11/28/01), 802 So.2d 1254, 1260, cert. denied, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002).
[8] State v. Ellis, 42,286 (La.App.2d Cir.7/11/07), 961 So.2d 636, writ denied, 07-1641 (La.1/25/08), 973 So.2d 753 (citing State v. Lombard, 486 So.2d 106 (La. 1986)).
[9] State v. Macon, 06-0481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86; State v. Rowan, 97-21, p. 7 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.
[10] State v. Seals, 95-0305 (La. 11/25/96), 684 So.2d 368, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997); State v. Hidalgo, 95-319 (La.App. 5 Cir. 1/17/96), 668 So.2d 1188, 1197.
[11] 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); also Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).
[12] See, State v. Dauzart, 02-1187, p. 8 (La. App. 5 Cir. 3/25/03), 844 So.2d 159, 165.
[13] See, State v. Jackson, 625 So.2d 146, 149 (La. 1993).
[14] State v. Dauzart, supra.
[15] State v. Williams, 02-645, p. 16 (La.App. 5 Cir. 11/26/02), 833 So.2d 497, 507, writ denied, 02-3182 (La.4/25/03), 842 So.2d 398.
[16] See, State v. Ham, 93-1036 (La.App. 5 Cir. 2/15/95), 652 So.2d 15, writ denied, 95-1028 (La.3/17/97), 691 So.2d 69.
[17] State v. Lafleur, 398 So.2d 1074, 1080 (La. 1981); State v. Rose, (La.2/22/07), 949 So.2d. 1236.
[18] See, State v. Cotton, 07-782 (La.App. 5 Cir. 2/19/08), 980 So.2d 34 (citing State v. Walker, 394 So.2d 1181 (La. 1981) and State v. Welch, 615 So.2d 300, 303 (La.1993)).
[19] 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224.
[20] 547 U.S. 813, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006).
[21] State v. Marse, 365 So.2d 1319 (La.1978); State v. Patterson, 99-994 (La.App. 5 Cir. 1/25/00), 752 So.2d 280, writ denied, XXXX-XXXX (La.2/9/01), 785 So.2d 26.
[22] State v. Tate, 01-1658, p. 20 (La.5/20/03), 851 So.2d 921, 937, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004).
[23] State v. Davis, 00-278 (La.App. 5 Cir. 8/29/00), 768 So.2d 201, writ denied, 2000-2730 (La.8/31/01), 795 So.2d 1205.
[24] State v. Batiste, 06-824 (La.App. 5 Cir. 3/13/07), 956 So.2d 626, writ denied, XXXX-XXXX (La. 1/25/08) 973 So.2d 751.
[25] See, State v. Fish, 00-922, pp. 8-9 (La.App. 5 Cir. 1/30/01), 782 So.2d 1087, 1091-92, writ denied, 01-0548 (La.2/1/02), 808 So.2d 337. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600144/ | 173 N.W.2d 281 (1969)
Wayne E. SALMON and Charlotte Salmon, Plaintiffs, Respondents and Cross-Appellants,
v.
William BRADSHAW and Betty Green Bradshaw, Defendants and Appellants.
Nos. 10550, 10560.
Supreme Court of South Dakota.
December 23, 1969.
*282 Davenport, Evans, Hurwitz & Smith, Robert C. Heege, Sioux Falls, for defendants and appellants, Neale, Newman, Bradshaw & Freeman, Springfield, Mo., of counsel.
Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for plaintiffs, respondents, and cross-appellants.
HANSON, Judge (On reassignment).
This action involves the respective rights of adjoining residential lot owners to a right-of-way in the City of Sioux Falls. Plaintiffs commenced the action for a declaratory judgment and for injunctive relief. Defendants counterclaimed with an action to quiet title and for damages. Both parties moved for summary judgment. The trial court entered judgment for plaintiffs granting them an easement over a portion of the easement area and enjoined defendants from interfering with plaintiffs' use of the right-of-way as established by the court. Both parties have appealed. In open court during oral argument on appeal defendants dismissed and abandoned their alleged claim for damages.
It appears that Reverend Casper M. Austin and his wife originally owned all of the property involved located in the Country Club Heights Subdivision of Minnehaha County. The Austin home was located on Lot 10 of Block 3. Lot 10 is a large irregular shaped lot situated approximately in the middle of the Block. It is surrounded on three sides by other irregular shaped smaller lots and is bounded on the west by Austin Drive. A narrow appendage extending off the southeast corner of Lot 10 runs eastward to Kiwanis Avenue.
On March 12, 1956 Reverend Austin and his wife sold and conveyed to plaintiffs, Wayne E. Salmon and Charlotte Salmon, *283 by warranty deed, Lot 2 in Block 3 of the Country Club Heights Subdivision. Lot 2 is an irregular shaped lot abutting Lot 1 eastward, Lot 10 westward, and the appendage of Lot 10 on the south. At the time of the conveyance Lot 2 was landlocked having no access to either a private or public way. There existed, however, a driveway extending from Kiwanis Avenue west across the appendage part of Lot 10 and continuing on westerly across Reverend Austin's Lot 10 to Austin Drive.
On April 2, 1956 Reverend Austin and his wife granted plaintiff, Wayne E. Salmon, the following written easement:
"EASEMENT
BOOK 55 Mis Page 208
"CASPER M. AUSTIN and EDA MABEL AUSTIN, husband and wife, the owners of Lot 10 in Block 3, Country Club Heights, an Addition to the City of Sioux Falls, Minnehaha County, South Dakota in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, from Wayne E. Salmon, do hereby give, grant and convey to Wayne E. Salmon, his heirs, successors and assigns, an easement as hereinafter described, in favor of and for the perpetual benefit of the certain real property described as Lot 2 in Block 3, Country Club Heights, an addition to the City of Sioux Falls, Minnehaha County, South Dakota, which property is presently owned by Wayne E. Salmon, for driveway and street purposes and for full purposes of ingress and egress to and from said Lot 2 in Block 3, Country Club Heights Addition.
"The easement for driveway and street purposes herein granted is over, upon and across that certain portion of Lot 10 in Block 3, Country Club Heights Addition lying between Lots 1, 2 and 18 in Block 3, Country Club Heights Addition to Sioux Falls, the purpose of the within grant being to grant access to Kiwanis Avenue from said Lot 2, Block 3, Country Club Heights, an Addition to the City of Sioux Falls.
"Dated at Sioux Falls, South Dakota this 2nd day of April, 1956.
Casper M. Austin
Eda Mabel Austin"
The words in the easement "that certain portion of Lot 10 in Block 3, Country Club Heights Addition lying between Lots 1, 2 and 18 in Block 3," is a description of the narrow appendage extending off the southeast corner of Lot 10 running eastward to Kiwanis Avenue.
Plaintiffs constructed their home on Lot 2 and have continuously resided there ever since. During the summer of 1956 plaintiffs also constructed a 16-foot wide concrete driveway extending from their garage southeasterly across a portion of the easement area of Lot 10 to Kiwanis Avenue.
Some time later plaintiff Salmon at his own expense hard surfaced with asphalt the driveway on the easement area of Lot 10 west of his concrete drive. This was done, as plaintiff testified, because he used the driveway and because it was dusty. Later on, Reverend Austin hired plaintiff to blacktop the rest of the driveway extending west to Austin Drive.
On January 12, 1965 defendants, Reverend William B. Bradshaw and his wife, purchased Lot 10 of Block 3, Country Club Heights from the Estate of Casper M. Austin, deceased. When defendants purchased the Austin property the abstract of title was examined for them by an attorney in Sioux Falls who pointed out in his opinion that "entry #75 of said abstract mentions an easement that is over, upon and across a certain portion of the above described property. This driveway grants access to Kiwanis Avenue."
In the spring of 1965 Reverend Bradshaw erected posts and a chain at the Kiwanis end of the driveway. The chain was secured to the posts by a lock. A sign reading "Private Drive" was hung on the chain. This action followed after Reverend Bradshaw *284 refused to remove the lock from the chain thereby denying plaintiffs any access to the easement area on Lot 10 except their 16-foot garage driveway.
The making of cross motions for summary judgment does not remove from consideration the primary question of whether there are any genuine issues of material facts. Each of the moving parties merely "concedes and affirms that there is no issue of fact only for purposes of his own motion". Vol. 3 Barron and Holtzoff, Federal Practice and Procedure, Section 1239. In such case, a court is not warranted in granting summary judgment unless one of the moving parties is entitled to judgment as a matter of law in the absence of a genuine issue as to any material fact. American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, 2 Cir., 388 F.2d 272.
The trial court concluded the easement of April 12, 1956 granted plaintiffs a "floating easement" at an unspecified and uncertain point across Lot 10. The court fixed and granted plaintiffs an easement "where their present concrete drive is now emplaced, together with the North 16 feet of that portion of Lot 10 extending from the Southwest corner of said Lot 2 eastward to Kiwanis Avenue." Neither party is satisfied with the judgment rendered. However, both parties agree the easement granted to plaintiffs is clear, definite and unambiguous in its terms and provisions and it is unnecessary to resort to extrinsic facts or circumstances to determine its meaning.
Plaintiffs contend that in accordance with the clear, definite, and unambiguous provisions of the easement they are entitled to the full use and enjoyment of the easement area. By limiting their right-of-way to the concrete drive and the north 16 feet of the easement area the trial court erroneously reduced their easement rights.
Defendants, on the other hand, contend that when a right-of-way is granted in general terms, without defined limits, the subsequent use and location of the way by the grantees operates to fix and determine its location and extent. Consequently, the trial court should have limited plaintiffs' right-of-way to the 16-foot driveway.
We agree with both parties the easement of April 12, 1956 is clear, definite and unambiguous in all its terms and provisions, making it unnecessary to resort to extrinsic facts or circumstances to determine its meaning or extent. In construing a grant, conveyance, or other instrument creating an easement "`the document itself, and that only, can, in the first instance, be looked at to discover the extent and nature of the agreement and the terms of the grant. If on the face of the document no doubt arises that the words are used in their primary sense, and if, read in that sense, they are plain and unambiguous, the matter is concluded'. Gale on Easements, p. 80. Where the intention of the parties can be ascertained, nothing remains but to effectuate that intention. 2 Devlin on Real Estate, 835. The terms of the grant, as they can be learned either by words clearly expressed, or by just and sound construction, will regulate and measure the rights of the grantee." Witman v. Stichter, 299 Pa. 484, 149 A. 725. This universal rule is stated in 25 Am.Jur.2d, Easements and Licenses, § 73, as follows: "Where an easement is claimed under a grant or reservation, the extent of the rights granted or reserved depends upon the terms of the grant or reservation, properly construed. If it is specific in its terms, it is decisive of the limits of the easement." See also 28 C.J.S. Easements § 80, p. 759; 2 Thompson on Real Property, § 387, p. 567; 3 Powell on Real Property, § 415; Restatement of the Law of Property, §§ 482, 483, and see 80 A.L.R.2d, p. 774.
The above rule applies here. The easement granted to plaintiffs is clear, definite, and certain. The easement instrument itself fixes, regulates, and defines the benefits granted. It specifically grants plaintiffs a perpetual easement for the benefit of Lot 2, Block 3, Country Club Heights Addition for driveway and street purposes and for full purposes of ingress and egress *285 from said Lot 2 to Kiwanis Avenue over, upon and across that certain portion of Lot 10 in Block 3, Country Club Heights Addition lying between Lots 1, 2 and 18 in Block 3, Country Club Heights Addition. The conveyance itself specifically grants a perpetual easement for driveway and street purposes and for full purposes of ingress and egress from Lot 2 to Kiwanis Avenue over, upon, and across an area on Lot 10 of a definite width and length.
Plaintiffs are accordingly entitled to the free and uninterrupted use and enjoyment of the entire easement area for the clearly expressed purposes of the grant. This includes the "last inch as well as the first inch". Bump v. Sanner, 37 Md. 621.
It is immaterial whether or not plaintiffs made use of the full rights of the easement area in the past. Where "the language of the grant clearly gives the grantee a right in excess of the one actually used, such right would still exist notwithstanding the exercise of a lesser privilege." Knox v. Pioneer Natural Gas Company, Tex.Civ.App., 321 S.W.2d 596. An easement created by an express grant is not lost by mere nonuse or partial use. See 25 A.L.R.2d Annot., LOSS OF EASEMENT § 3, p. 1275.
"Where the way over the surface of the ground is one of expressly defined width, it is held that the owner of the easement has the right, free of interference by the owner of the servient estate, to use the land to the limits of the defined width even if the result is to give him a wider way than necessary". Tarr v. Watkins, 180 Cal. App. 2d 362, 4 Cal. Rptr. 293 and Brooks v. Voight, 224 Md. 47, 166 A.2d 737. Cases and authorities involving easements not specifically defined or acquired and established by prescription or implication have no application to the facts herein.
The judgment appealed from is affirmed and remanded with directions to modify the same in accordance with this opinion.
BIEGELMEIER, P. J., and ROBERTS, J., concur.
RENTTO and HOMEYER, JJ., dissent.
BIEGELMEIER, Presiding Judge (concurring).
I concur in Judge Hanson's opinion, but desire to clarify the issues and situation presented as they appear to me.
First, as to the contentions of the parties, defendants-appellants Bradshaws, speaking in their own words state in their brief:
"* * * we deem it appropriate at this point to call the Court's attention to the fact that both the plaintiffs (Salmons) and the defendants (Bradshaws) have taken the position in this proceeding that the easement of April 2, 1956, is clear, definite and unambiguous in its terms and provisions. The parties are in agreement on this. (Defendants in a page-long footnote cite and quote from plaintiffs' brief, Conclusions of Law and filed objections to this effect)
* * * * * *
"* * * defendants (Bradshaws) took the position (1) that since both sides conceded that the easement * * * is, in fact, clear, definite and unambiguous in its terms and provisions, the intention of the grantors of the written easement must be determined from the wording of the written instrument itself, and no resort may be had to extrinsic evidence".
The parties in their own words seem to agree on that issue.
Secondly, though Judge Hanson's opinion states the situation in words, it is difficult by words alone to describe the odd and unusual plat of Block 3 without a copy of it, which does appear in one of the briefs. The block itself is odd in that eight lots are clustered in the south side or base, with nine in the north or curved cone with Lot 10 dividing them. It runs east and west from a width of nearly 200' fronting Austin Avenue on the east to Kiwanis on the west and can be described as the right half of a table tennis paddle, the handle of which is the 40' by 140' appendage extending from the bulk of Lot 10 between plaintiffs' Lot 2 and Lot 18 to the south. Without some *286 right to use this appendage for "driveway and street purposes and for full purposes of ingress and egress to and from" plaintiffs' Lot 2 and "access to Kiwanis Avenue", plaintiffs' lot would have been of little or no vlaue. The owners of Lot 10 and plaintiffs as purchasers of Lot 2 recognized this; hence the now disputed easement.
This picture of the situation constrains me to concur in the opinion as to the territorial extent of the easement; its size, shape and location and the wording of it are all consonant with each other and point to the result reached in the opinion.
The easement in words does not nor does the opinion grant exclusive right to use the corridor nor any use in deprivation of any rights the owners of Lot 10 to use it; thus neither may block nor bar use of the other or interfere with such use, though the mode of use may not here now be in issue.
RENTTO and HOMEYER, Judges (dissenting).
Plaintiffs brought this action for a declaration of their rights under an easement granting right of ingress and egress and to enjoin the defendants from interfering with their use of such easement. The majority has now determined from the written instrument itself that the easement covers the whole area of a so-called "narrow appendage" which actually is a tract of land with a 40 foot frontage on Kiwanis Avenue and a depth of 140 foot plus into Lot 10 with trees, shrubs, flowers and lawn situated on a major portion thereof. It holds that the dominant tenement has the right to use the first and the last inch of that whole area for purposes of ingress and egress to Lot 2. We do not believe this conclusion is supported by the instrument, by the law, or by any reasonable construction of the record before us.
The majority starts from the premise that "both parties agree the easement granted to plaintiffs is clear, definite and unambiguous in its terms and provisions and it is unnecessary to resort to extrinsic facts or circumstances to determine its meaning". This is an incorrect analysis of defendants' position and is not supported by the record or by the briefs. Neither was it the view of the trial court.
An examination of the record and a reading of the briefs reveals that defendants acknowledged that the instrument granted to plaintiffs a right-of-way over the "appendage" for ingress and egress to Lot 2 and to that extent it was clear, definite and unambiguous. However, defendants have never conceded that precise location of such easement and the width and length thereof was definite and certain and ascertainable from the instrument itself without resort to extrinsic evidence. The majority's holding is in accord with plaintiffs' contentions, but it certainly does not correspond with defendants' position in this litigation. For example, in defendants' brief they say "But plaintiffs and defendants took different positions with reference to this written easement" and then they summarize their respective positions. In such summarization defendants state "the parties (plaintiffs) had themselves over nine years before the starting of this suit put their own interpretation on this written instrument * * *" by constructing and using "the 16-foot wide concrete driveway at the point where they chose on the servient estate * * * as their `access to Kiwanis Avenue from said Lot 2, Block 3'".
Defendants' position is further manifested in Findings of Fact and Conclusions of Law they proposed:
Finding of Fact IV: "The right to the passageway or right of way from Lot 2 across Lot 10 onto Kiwanis Avenue is definite in the easement, but the particular location of that passageway or right of way is not fixed or described in the easement itself."
Conclusion of Law V: "With the execution of the easement instrument of April 2, 1956, the only thing which remained indefinite and uncertain was the specific location of the right of way across the servient estate."
In our opinion, the written instrument does nothing more than fix the general location *287 of the easement area. Such being the case the authorities we have been able to find without exception hold that "a grant or reservation of a right of way `over' a particular area, strip or parcel of ground is not to be construed as providing for a way as broad as the ground referred to." 25 Am.Jur.2d, Easements and Licenses, § 78, p. 485. 28 C.J.S. Easements § 79: "Where an easement in land is granted in general terms, without giving definite location and description to it, so that the part of the land over which the right is to be exercised cannot be definitely ascertained, the grantee does not thereby acquire a right to use the servient estate without limitation as to the place or mode in which the easement is to be enjoyed." To the same effect is a statement from Thompson on Real Property, Vol. 2, 1961 Replacement § 387. Cases in support are found in Annot., 28 A.L.R.2d, § 7, p. 265. See also, Hyland v. Fonda, 44 N.J.Super. 180, 129 A.2d 899.
Since material facts essential to a proper disposition of this case are in dispute and appear not to have been fully developed, in our opinion summary judgment should not have been granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600147/ | 20 Mich. App. 30 (1969)
173 N.W.2d 780
SECOR
v.
PIONEER FOUNDRY COMPANY, INC.
Docket No. 5,898.
Michigan Court of Appeals.
Decided October 30, 1969.
Florence N. Clement (Gay S. Hardy, of counsel), for plaintiff.
Felix F. Best, for defendant.
Before: J.H. GILLIS, P.J., and LEVIN and BRONSON, JJ.
LEVIN, J.
Plaintiff is the widow of Jack A. Secor and the administratrix of his estate. She commenced this action to recover the proceeds of an ordinary life insurance policy on his life which were paid to his former employer, defendant Pioneer Foundry Company, Inc. The trial court entered a judgment of no cause of action and the plaintiff appeals. We affirm.
Pioneer Foundry employed Secor for a period of 9 years, 1954 to July, 1963. In March, 1960, Pioneer Foundry obtained a $50,000 policy on his life; it was the applicant, the owner and the beneficiary, and it paid the premiums on the policy. After the employment relationship terminated in July, 1963, Pioneer Foundry paid the March, 1964 annual premium. Secor died the following month.
*33 Plaintiff argues that after the termination of Secor's employment Pioneer Foundry lost whatever insurable interest it had in Secor's life and that a constructive trust should be impressed on the proceeds in favor of Secor's widow and estate.
A preliminary issue whether the plaintiff has standing to complain is dispositive of plaintiff's contention that Pioneer Foundry no longer had an insurable interest after Secor left its employ. In Hicks v. Cary (1952), 332 Mich. 606, on facts similar to those before us, the Michigan Supreme Court declared that the insurer alone may assert that the beneficiary of a life policy does not have an insurable interest (p 612):
"We hold to the rule that lack in the beneficiary of an insurable interest equal to the full amount of the insurance policy, to the extent that it thereby renders the policy a wagering contract, constitutes a barrier to the beneficiary's right to receive and retain the full amount of the insurance proceeds, but that it is one which may be raised by and for the benefit of the insurer alone." (Emphasis supplied.)
Hicks relied on the Court's earlier decisions in Standard Life & Accident Insurance Co. v. Catlin (1895), 106 Mich. 138, and Smith v. Pinch (1890), 80 Mich. 332, which enunciate fundamentally the same rule of law. The rule that only the insurer can raise the question of lack of insurable interest appears to be well supported in other jurisdictions.[1]
In the present case, the insurer, who alone had standing to complain of any lack of insurable interest, paid the proceeds of the policy to Pioneer Foundry in May, 1964, without asserting this possible defense.
*34 The plaintiff argues that, apart from whether she has standing to raise the insurable interest defense, the underlying premise of the insurable interest requirement the public policy against speculation on the life of another[2] is so pervasive that Pioneer Foundry could not lawfully retain insurance on Secor's life after the termination of his employment or, alternatively, beyond the date that the first premium became due after his employment terminated. Although this argument so closely parallels the insurable interest argument that it too could be rejected on the authority of Hicks v. Cary, supra, we prefer to meet this argument on the merits.
The purchaser of ordinary life insurance, as distinguished from casualty or property insurance, buys not only indemnification in a specific amount against a particular peril or potential loss but also makes an investment.[3] To terminate the rights of the owner or beneficiary of ordinary life insurance because the relationship to the life insured has changed, perhaps after many years of making premium payments, at a time when death is bound to be more imminent than it was at the time the policy was issued, would not only adversely affect this investment quality of life insurance but would also confer an unanticipated and unwarranted windfall on the insurer.
In recognition of these considerations the almost universal rule of law in this country is that if the insurable interest requirement is satisfied at the time the policy is issued, the proceeds of the policy *35 must be paid upon the death of the life insured without regard to whether the beneficiary has an insurable interest at the time of death.[4] It has, accordingly, been held that an employer who is the beneficiary of a policy insuring the life of one of his employees may collect proceeds which become payable under the policy even though the employee's death occurs after the termination of his employment.[5]
The ordinary life insurance policy issued to the defendant corporation is referred to in the insurance industry as "keyman" life insurance. The plaintiff emphasizes that the typical life insurance policy is purchased to provide for loss by family members who may be expected to suffer a personal as well as a financial loss upon the death of the life insured. From this she argues that keyman life insurance should not be governed by the same rules as apply to life insurance generally. The proffered distinction is not, in our opinion, meaningful. Life insurance is not meant to assuage grief; its primary function is monetary. It serves fundamentally the same purpose whether the beneficiary is a widow or a business; it seeks to replace with a sum of money the earning capacity of the life insured.
*36 The plaintiff's analogy to the public policy against a murderer collecting insurance on the life of the victim is inapposite. Pioneer Foundry's act of paying the yearly premium after Secor left its employ is not (contrary to plaintiff's argument) at all analogous to murdering him.[6] Given the general rule that the beneficiary of a life policy may collect its proceeds although the insurable interest which existed when the policy was issued subsequently terminates, it would make no sense to hold that the act of paying the premium (necessary to the full preservation of the owner's rights under the policy) somehow or other brings about a termination of the owner-beneficiary's rights.[7]
We also decline to limit Pioneer Foundry's recovery to the amount of its investment in the policy and its financial loss (probably nil) upon Secor's death.[8] Pioneer Foundry's investment in the policy was large both quantitatively and relatively.[9] It chose to make the premium payment due eight months after Secor's employment terminated to *37 preserve recovery of its prior expenditures.[10] It did this in its own interest; it has not been suggested that it was acting for, or because of any obligation it had assumed to, Secor or his family.
There are, indeed, cases that hold that a creditor who acquires insurance on his debtor's life may not recover more than the amount of the debt and the premiums he pays.[11] These cases appear to be based upon a misapplication of principles developed where the debtor pledges a policy with the creditor or pays the premiums and upon the concept that a creditor should never be able to recover more than the amount owing to him plus the cost of preserving and securing repayment.[12] This analysis has been rejected in the better-reasoned cases;[13] it is contrary to the principle that the termination of an insurable interest does not affect the rights of an owner-beneficiary in a life policy. A creditor who himself buys and pays for a policy on his debtor's life is, after the debt is paid, in fundamentally the same *38 position as any other purchaser of a life insurance policy whose insurable interest has terminated. Our Supreme Court intimated in Hicks v. Cary, supra, p 611, that it would so hold if confronted with the question.
We can understand plaintiff's feeling that it is unseemly for Pioneer Foundry to continue to own insurance on Secor's life after the termination of his employment and that since the plaintiff, not Pioneer Foundry, suffered a financial as well as a personal loss upon Secor's death the plaintiff has a greater moral right to the proceeds or at least to so much of the proceeds as exceeds the cost of the insurance. It has been suggested that upon the termination of employment an employer owning insurance should give the employee an opportunity to purchase it.[14] Many employers, no doubt, are just as anxious to sell as the employee is to purchase the policy. We are not aware, however, of any principle of law, apart from an obligation assumed under a contract, which obliges an employer owning a policy on the life of an employee to offer to sell the policy to the employee upon termination of his employment. Having in mind the regularity with which insurance is now being purchased by businesses on the lives *39 of employees, this might be an appropriate subject for legislation.
Affirmed. Costs to defendant.
All concurred.
NOTES
[1] See 3 Couch on Insurance (2d ed), § 24.6, p 75; 2 Appleman, Insurance Law & Practice, § 765, p 130; Vance on Insurance (3d ed), § 31, p 199.
[2] See Sun Life Assurance Company of Canada v. Allen (1935), 270 Mich. 272.
[3] "[L]ife insurance has become in our days one of the best recognized forms of investment and self-compelled saving. So far as reasonable safety permits, it is desirable to give to life policies the ordinary characteristics of property." Grigsby v. Russell (1911), 222 U.S. 149 (32 S. Ct. 58, 56 L. Ed. 133).
[4] 43 Am Jur 2d, Insurance, § 504, p 535; 3 Couch on Insurance (2d ed), § 24.122, p 230; 2 Appleman, Insurance Law & Practice, § 763, p 123; Vance on Insurance (3d ed), § 31, p 185; Mutual Aid Union v. White (1924), 166 Ark 467 (267 S.W. 137); Wagner v. National Engraving Co. (1940), 307 Ill App 509 (30 NE2d 750); Wellhouse v. United Paper Co. (CA 5, 1929), 29 F2d 886.
[5] 43 Am Jur 2d, Insurance, § 504, p 536; 3 Couch on Insurance (2d ed), § 24.148, pp 262, 263; 2 Appleman, Insurance Law & Practice, § 872, p 398; Vance on Insurance (3d ed), § 31, p 187; Wurzburg v. New York Life Ins. Co. (1918), 140 Tenn 59 (203 S.W. 332, LRA1918E 566).
The holding in the 1908 case of Victor v. Louise Cotton Mills (1908), 148 NC 107 (61 S.E. 648), that payment of policy premiums after the insured life leaves the employ of a corporate employer is ultra vires does not reach the question of whether, if such payment is, nevertheless, made, the corporation or the family of the life insured shall receive the proceeds upon death.
[6] Cases concerning the disqualification of a murderer include Ohio State Life Ins. Co. v. Barron (1935), 274 Mich. 22 and Budwit v. Herr (1954), 339 Mich. 265.
[7] The argument that an employer should not be allowed to keep in force a policy on the life of a former employee so as to discourage the employer from murdering the employee is based on the imaginative assumptions that there is a significant risk that employers owning life insurance on the lives of former employees will seek to bring about their untimely death, and that if we were to adopt the rule plaintiff espouses an employer disposed to murder, aware of our decision and, therefore, knowing that he could not profit by murdering the employee after termination of his employment, would (although, in this hypothesis, he is willing to commit murder after employment terminates) refrain from murdering the employee before termination of employment. We know of no evidence which would support these suppositions, all of which appear to be without substance.
[8] Cf. Wagner v. National Engraving Co. (1940), 307 Ill App 509 (30 NE2d 750).
[9] The annual premium was high, $5,625, because of Secor's unfavorable medical history. Pioneer Foundry had thus paid the insurer over $22,000 before Secor left its employ and over $28,000 before he died.
[10] Cf. McMullen v. St. Lucie County Bank (1937), 128 Fla 745 (175 So 721).
[11] See Morrow v. National Life Association of Des Moines, Iowa (1914), 184 Mo App 308 (168 S.W. 881); Dunn v. Second National Bank of Houston (1938, 131 Tex 198 (113 S.W.2d 165). Generally, see 43 Am Jur 2d, Insurance, § 519, p 546; Anno: Rights in respect of proceeds of life insurance under policy naming creditor as beneficiary, 115 A.L.R. 741; 2 Appleman, Insurance Law & Practice, ch 52; 3 Couch on Insurance (2d ed), § 24.154, p 266, 267.
[12] Albrent v. Spencer (1957), 275 Wis 127 (81 NW2d 555); Hayward v. Campbell (1938), 174 Md 540 (199 A 530).
[13] Amick v. Butler (1887), 111 Ind 578 (12 N.E. 518); Rittler v. Smith (1889), 70 Md 261 (16 A 890); see Vance on Insurance (3d ed), § 31, p 187. See, also, Mutual Aid Union v. White, supra. Compare American Casualty Company v. Rose (CA 10, 1964), 340 F2d 469, with Forster v. Franklin Life Insurance Company (1957), 135 Colo 383 (311 P2d 700), and Zolintakis v. Orfanos (CA 10, 1941), 119 F2d 571, which make the matter turn on the intention of the parties at the time of acquisition by the beneficiary of his interest in the policy; in these cases the beneficiary generally was a creditor of the life insured but asserted that his acquisition of the policy was due to a familial or other relationship and not because of his interest as a creditor, or that his interest in the policy was not intended to be limited to his creditor interest.
[14] The suggestions made in "A proposed extension of the insurable interest requirement for keyman insurance," 65 Yale L J 736 (1956), cited by the plaintiff, do not appear to have been adopted.
Somewhat analogous is the problem which arises when a partnership is terminated. In one case the court directed payment of the proceeds to the family of the insured life, Ruth v. Flynn (1914), 26 Colo App 171 (142 P. 194). It is one thing to direct payment of the proceeds to an insured partner's family; it would be quite another to direct payment of the proceeds to the family of a former employee who, unlike a partner, had no interest in the assets of his former employer. Cf. Wellhouse v. United Paper Co., supra. In Ryan v. Andrewski (1952), 206 Okla 199 (242 P2d 448), a former partner, who had already settled with the partnership, failed in an attempt to require the partnership to sell him policies on his life for the "cash or loan value." See, also, Atkins v. Cotter (1920), 145 Ark 326 (224 S.W. 624). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600179/ | 571 So. 2d 415 (1990)
James CAMPBELL, Appellant,
v.
STATE of Florida, Appellee.
No. 72622.
Supreme Court of Florida.
June 14, 1990.
Rehearing Denied December 13, 1990.
*416 Geoffrey C. Fleck of Friend, Fleck & Gettis, South Miami, for appellant.
Robert A. Butterworth, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., Miami, for appellee.
SHAW, Justice.
James Campbell appeals his convictions of first-degree murder, attempted first-degree murder, burglary, robbery, and displaying a weapon, and his sentences of death and consecutive life terms of imprisonment. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the convictions and sentences, with the exception of the death penalty.
At about 2:15 p.m. on December 22, 1986, Sue Zann Bosler and her father, Billy, returned home from shopping. While in the bathroom, Sue Zann heard the doorbell ring, heard the door open, and then heard *417 her father make grunting and groaning sounds. When she went to investigate, she saw her father being stabbed a number of times by an unknown attacker. She made a noise and the assailant approached her and stabbed her in the back three times as she turned away before being knocked to the floor. The assailant returned to her father, stabbing him in the back many times as he fell to the floor. When Sue Zann tried to help her father, the assailant backed her into another room and stabbed her in the head several times. She fell to the floor, pretending to be dead. The attacker rummaged through the house and searched Billy's pockets and Sue Zann's purse, taking an undetermined amount of money before leaving. Billy died; Sue Zann lived.
Sue Zann gave a description of the attacker and police determined that he probably had a badly cut hand. A week later, while responding to a call at a convenience store, James Campbell was seen by police peering into an unoccupied police car, with his hand on the driver's door. When asked what he was doing, Campbell gave no explanation. A background check indicated that he was wanted on two outstanding juvenile warrants. While handcuffing Campbell, the officer noticed that his hand had been badly cut. At the police station, Campbell was read his rights and questioned concerning the Bosler homicide. He eventually confessed and gave a written statement, saying that he went to the Bosler house with a knife, that he planned to rob the occupants, and that he stabbed and robbed Billy and Sue Zann. Sue Zann identified Campbell's photograph from a photo lineup.
Campbell was charged with first-degree murder, attempted first-degree murder, burglary with a dangerous weapon, robbery with a deadly weapon, battery on a policeman, and displaying a weapon during a felony. His motions to suppress his confessions, out-of-court and in-court identifications, and physical evidence were denied. At trial, police experts testified that his fingerprints and blood samples matched those found at the scene. Sue Zann testified as to the events of the day and identified Campbell as her assailant. He was found guilty on all charges except battery on a policeman. The jury voted nine to three in favor of the death penalty. The judge followed the jury recommendation and imposed the death penalty based on a finding of five aggravating factors (prior conviction of a felony involving force; committed during burglary and robbery; committed for pecuniary gain; committed in a particularly heinous, atrocious, or cruel manner; committed in a cold, calculated, and premeditated manner) and one nonstatutory mitigating factor (requests by Sue Zann and members of Billy's parish that his life be spared).
Campbell argues that the confessions, identifications, and physical evidence should have been suppressed for three reasons: The police had no grounds to stop him; they had no grounds to take him into custody; and because of his low intelligence, he could not have intelligently waived his rights. We disagree. Officers, responding to a call concerning a man with a gun behind a convenience store, spotted Campbell apparently trying to break into a police car behind the store. They thus had grounds to stop him. A name check revealed two outstanding juvenile warrants. Campbell argues that under sections 39.02(4) and .40(2), Florida Statutes (1985), the juvenile court loses jurisdiction when a child reaches eighteen (in dependency cases) and nineteen (in delinquency cases), that Campbell was twenty when arrested here, and thus the pickup orders that had been issued three years earlier were void and the arrest unlawful. The orders, however, were valid when issued and remained valid until successfully challenged or revoked by the court. The police had no choice but to pick up Campbell; they were required by court order to do so. As to Campbell's waiver of his rights, mental weakness is but one factor to be weighed in determining voluntariness. Kight v. State, 512 So. 2d 922 (Fla. 1987), cert. denied, 485 U.S. 929, 108 S. Ct. 1100, 99 L. Ed. 2d 262 (1988) (waiver lawful where defendant had I.Q. of 69). The record shows Campbell *418 was aware of his rights and the consequences of waiver.
After instructing the jury on first-degree premeditated murder, the court charged the jury on first-degree felony murder. It then repeated the felony murder instruction. Later, the court instructed on attempted murder which it also repeated. It did the same for the terms "dangerous weapon" and "reasonable doubt." Campbell claims that this repetition and additional statements by the court gave the impression that the court believed Campbell was guilty. We disagree. The repeated instructions were made in response to juror puzzlement ("I see puzzled looks on your faces.") and correctly stated the law without unduly emphasizing a particular aspect of the proceeding. There was no error. Campbell asserts that the court should not have allowed the serology expert to testify on knife slippage. The forensic serologist testified that when a knife with a bloody handle hits a bone, the grip may slip and the holder may cut his hand. The expert was testifying within his field on the fluid nature of blood; he was also testifying on a subject upon which he possessed a working knowledge the effect of blood on a weapon. See Johnson v. State, 497 So. 2d 863 (Fla. 1986) (although never qualified as an expert, police officer had working knowledge of blood detection testing). Campbell's claim that the deceased was never properly identified because a witness said he was "Bowman" was not preserved for review on appeal.
Campbell claims that the court erred in its findings relative to aggravating and mitigating circumstances. The court correctly found that Campbell was previously convicted of a felony involving the use or threat of violence. He cites no authority in support of his assertion that prior juvenile convictions cannot be considered in aggravation. Commission of a capital felony in the course of an armed robbery and burglary, and for pecuniary gain should have been counted as one, not two, factors, where the offense underlying the burglary was robbery. See Maggard v. State, 399 So. 2d 973 (Fla.), cert. denied, 454 U.S. 1059, 102 S. Ct. 610, 70 L. Ed. 2d 598 (1981); Riley v. State, 366 So. 2d 19 (Fla. 1978). The finding that the killing was particularly heinous, atrocious, or cruel was proper. Billy was stabbed twenty-three times over the course of several minutes and had defensive wounds. See Hansborough v. State, 509 So. 2d 1081 (Fla. 1987) (thirty stab wounds, including defensive wounds, is sufficient to establish that the killing was particularly heinous, atrocious, or cruel).
We disagree with the court's finding that the stabbing was committed in a cold, calculated, and premeditated manner. The state argues that because Campbell stabbed Billy, then stopped when he attacked Sue Zann, and then returned to stabbing Billy, he had time to reflect upon and plan his resumed attack on Billy. See Swafford v. State, 533 So. 2d 270 (Fla. 1988), cert. denied, 489 U.S. 1100, 109 S. Ct. 1578, 103 L. Ed. 2d 944 (1989) (cold, calculated, and premeditated aggravating circumstance present where defendant shot victim, reloaded, then resumed shooting). This factor generally is reserved for cases showing "a careful plan or prearranged design." Rogers v. State, 511 So. 2d 526, 533 (Fla. 1987), cert. denied, 484 U.S. 1020, 108 S. Ct. 733, 98 L. Ed. 2d 681 (1988). Campbell's actions took place over one continuous period of physical attack. His assault on Sue Zann provided him with no respite during which he could reflect upon or plan his resumption of attack on Billy, unlike the situation in Swafford wherein the act of reloading the gun provided a break in the attack.
As to mitigating factors, the trial judge concluded that Campbell did not suffer from impaired capacity under section 921.141(6)(f), Florida Statutes (1985), because no evidence indicated that he was "insane" at the time of the killing.[1] "The finding of sanity, however, does not eliminate *419 consideration of the statutory mitigating factors concerning mental condition." Mines v. State, 390 So. 2d 332, 337 (Fla. 1980). Evidence of impaired capacity was extensive and unrefuted Campbell's I.Q. was in the retarded range; he had poor reasoning skills; his reading abilities were on a third-grade level; he suffered from chronic drug and alcohol abuse; and he was subject to a borderline personality disorder. We note that he attempted suicide while in jail and subsequently was placed on Thorazine, a high potency antipsychotic drug. The trial court erred in failing to recognize the presence of this mitigating circumstance. Cf. id. at 337 (where "[t]he evidence clearly establishes that appellant had a substantial mental condition... . [t]he trial court erred" in rejecting impaired capacity as a mitigator).
We similarly conclude that the court wrongly rejected Campbell's deprived and abusive childhood as a mitigating factor.[2] The record reveals that while in his parents' care he suffered extreme abuse, e.g., he required hospital treatment after being hit with a telephone, and was observed "covered with bruises." As a child, he was subjected to such extensive mistreatment that he was declared a dependent and removed permanently from his parents' home.
As this case demonstrates, our state courts continue to experience difficulty in uniformly addressing mitigating circumstances under section 921.141(3), Florida Statutes (1985), which requires "specific written findings of fact based upon [aggravating and mitigating] circumstances." Federal caselaw additionally states that
[j]ust as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.... The sentencer, and the [appellate court], may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration.
Eddings v. Oklahoma, 455 U.S. 104, 114-15, 102 S. Ct. 869, 876-77, 71 L. Ed. 2d 1 (1982) (emphasis and footnote omitted). We provide the following guidelines to clarify the issue.
When addressing mitigating circumstances, the sentencing court must expressly evaluate in its written order each mitigating circumstance proposed by the defendant[3] to determine whether it is supported by the evidence and whether, in the case of nonstatutory factors, it is truly of a mitigating nature. See Rogers v. State, 511 So. 2d 526 (Fla. 1987), cert. denied, 484 U.S. 1020, 108 S. Ct. 733, 98 L. Ed. 2d 681 (1988). The court must find as a mitigating circumstance each proposed factor that is mitigating in nature[4] and has been reasonably established by the greater weight of the evidence:[5] "A mitigating circumstance need not be proved beyond a reasonable doubt by the defendant. If you are reasonably convinced that a mitigating circumstance exists, you may consider it as *420 established." Fla.Std.Jury Instr. (Crim.) at 81. The court next must weigh the aggravating circumstances against the mitigating and, in order to facilitate appellate review, must expressly consider in its written order each established mitigating circumstance. Although the relative weight given each mitigating factor is within the province of the sentencing court, a mitigating factor once found cannot be dismissed as having no weight. To be sustained, the trial court's final decision in the weighing process must be supported by "sufficient competent evidence in the record." Brown v. Wainwright, 392 So. 2d 1327, 1331 (Fla. 1981). Hopefully, use of these guidelines will promote the uniform application of mitigating circumstances in reaching the individualized decision required by law.
Based on the foregoing, we affirm the convictions and the sentences, with the exception of the death penalty, which we vacate. On the murder conviction, we remand for resentencing before the judge so that he can evaluate and reweigh the aggravating and mitigating circumstances in light of this opinion.
It is so ordered.
EHRLICH, C.J., and OVERTON, McDONALD, BARKETT, GRIMES and KOGAN, JJ., concur.
NOTES
[1] After discussing impaired capacity, the trial judge determined that "[t]his mitigating circumstance is not applicable."
[2] After discussing this circumstance, the trial court stated that "it is the finding of this court that this is not a mitigating factor."
[3] As with statutory mitigating circumstances, proposed nonstatutory circumstances should generally be dealt with as categories of related conduct rather than as individual acts. Examples of categories are contained in footnote 4.
[4] This is a question of law. A mitigating circumstance can be defined broadly as "any aspect of a defendant's character or record and any of the circumstances of the offense" that reasonably may serve as a basis for imposing a sentence less than death. Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964-65, 57 L. Ed. 2d 973 (1978). Valid nonstatutory mitigating circumstances include but are not limited to the following:
1) Abused or deprived childhood.
2) Contribution to community or society as evidenced by an exemplary work, military, family, or other record.
3) Remorse and potential for rehabilitation; good prison record.
4) Disparate treatment of an equally culpable codefendant.
5) Charitable or humanitarian deeds.
[5] This is a question of fact and the court's finding will be presumed correct and upheld on review if supported by "sufficient competent evidence in the record." Brown v. Wainwright, 392 So. 2d 1327, 1331 (Fla. 1981). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600166/ | 173 N.W.2d 576 (1970)
STATE of Iowa, Plaintiff,
v.
Honorable James P. DENATO, Judge of the Ninth Judicial District of Iowa, Defendant.
No. 53713.
Supreme Court of Iowa.
January 13, 1970.
*577 Ray A. Fenton, County Atty., and Harold A. Young, Asst. County Atty., for plaintiff.
Jesse, LeTourneau & Johnston, by Norman Jesse, Des Moines, for defendant.
RAWLINGS, Justice.
By original certiorari proceeding, pursuant to our order, the State seeks review of claimed error on the part of trial court in sustaining a defendant's criminal action motion for an informant identifying amended bill of particulars.
The factual situation presented is devoid of any material dispute.
By indictment returned March 20, 1969, Gary McPherson was charged with receiving stolen property. (Section 712.1, Code, 1966).
Defendant McPherson entered a not guilty plea, followed by an application for bill of particulars (Code section 773.6), requesting the prosecution state the method and means by which police officers secured information regarding the alleged receipt and concealment of designated stolen property. Pursuant to a court order sustaining this application the State responded, "through an informant."
Thereupon this defendant made application for an amended bill of particulars asking that the prosecution be ordered to identify the informant and set forth the substance of information supplied by him. The State filed answer and resistance requesting this application be denied.
Trial court's order, entered ex parte, sustaining defendant's amendment seeking application is here challenged by the State.
I. The overriding question presented is: Did trial court exceed its jurisdiction or otherwise act illegally ? Rule 306, Rules of Civil Procedure; Sueppel v. Eads, Iowa, 156 N.W.2d 115, 116-117; and State v. District Court, etc., 248 Iowa 250, 253-254, 80 N.W.2d 555. See also State v. Rees, 258 Iowa 813, 816, 139 N.W.2d 406.
II. All courts accord recognition to the fact that informants are an integral part of and essential to effective law enforcement. It is also understood that whenever an informer's identity is revealed, his future use is usually diminished if not destroyed, and in some instances life put in jeopardy. *578 Resultantly a cloak of protection is customarily accorded the tipster, but that shield is not always inviolable.
With regard to existence of "probable cause" relative to search or arrest, the disclosure of an informant's identity need not ordinarily be disclosed where reliability is satisfactorily established. See Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637; McCray v. State of Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62; Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142; and Ker v. State of California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726.
On the other hand, when, upon showing made there is reason to believe disclosure of an informer's identity and nature of his communication is material to an accused's defense or requisite to a fair trial, the confidentiality referred to supra, disappears. This is clearly disclosed by Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639.
There the court ordered disclosure of an informant's identity, and in so doing said, loc. cit., 353 U.S. 59-65, 77 S.Ct. 627-630: "What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. (Authorities cited). * * *
"The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged. Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.
"A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. * * * (Emphasis supplied.)
"We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors. (Emphasis supplied.)
"* * *
"The circumstances of this case demonstrate that John Doe's possible testimony was highly relevant and might have been helpful to the defense. So far as petitioner knew, he and John Doe were alone and unobserved during the crucial occurrence for which he was indicted. Unless petitioner waived his constitutional right not to take the stand in his own defense, John Doe was his one material witness. Petitioner's opportunity to cross-examine Police Officer Bryson and Federal Narcotics Agent Durham was hardly a substitute for an opportunity to examine the man who had been nearest to him and took part in the transaction. Doe had helped to set up the criminal occurrence and had played a prominent part in it. His testimony might have disclosed an entrapment. He might have thrown doubt upon petitioner's identity or on the identity of the package. He was the only witness who might have testified to petitioner's possible lack of knowledge of the contents of the package that he *579 `transported' from the tree to John Doe's car. The desirability of calling John Doe as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.
"Finally, the Government's use against petitioner of his conversation with John Doe while riding in Doe's car particularly emphasizes the unfairness of the nondisclosure in this case. The only person, other than petitioner himself, who could controvert, explain or amplify Bryson's report of this important conversation was John Doe. Contradiction or amplification might have borne upon petitioner's knowledge of the contents of the package or might have tended to show an entrapment.
"This is a case where the Government's informer was the sole participant, other than the accused, in the transaction charged. The informer was the only witness in a position to amplify or contradict the testimony of government witnesses. Moreover, a government witness testified that Doe denied knowing petitioner or ever having seen him before. We conclude that, under these circumstances, the trial court committed prejudicial error in permitting the Government to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure."
With regard to the foregoing see also Smith v. State of Illinois, 390 U.S. 129, 88 S. Ct. 748, 19 L. Ed. 2d 956; State v. White, 260 Iowa 1000, 1002-1005, 151 N.W.2d 552; Honore v. Superior Court, Cal., 74 Cal. Rptr. 233, 449 P.2d 169; and People v. Lopez, 60 Cal. 2d 223, 32 Cal. Rptr. 424, 384 P.2d 16, cert. den. 375 U.S. 994, 84 S. Ct. 634, 11 L. Ed. 2d 480.
III. Referring again to Roviaro, supra, it will be noted the court there held, inter alia, any determination as to whether disclosure should be ordered depends "on the particular circumstances of each case."
This at once reveals trial court, absent any hearing on the factual situation involved, was not in a position to fairly balance need for disclosure against privilege. By the same token it is impossible for us to knowingly resolve the issue.
We now hold that under existing circumstances trial court did not proceed according to law and the dictates of justice, but the mistake may, on remand, be remedied by proper hearing. See in this regard rule 316, Rules of Civil Procedure; Watson v. Charlton, 243 Iowa 80, 91, 50 N.W.2d 605; and 14 Am.Jur.2d, Certiorari, section 74, page 838.
The case at bar is accordingly remanded to trial court with directions that the order sustaining defendant's application for an amended bill of particulars be set aside, and for further proceedings consistent with this opinion, without prejudice to defendant Gary McPherson's right to pursue his motion for an amended bill of particulars or to seek identity of the informant at any subsequent stage of the proceedings.
Writ sustained, remanded with directions.
All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600169/ | 173 N.W.2d 50 (1969)
James L. LOESCHER, Plaintiff and Appellant,
v.
Robert A. POLICKY, Defendant and Respondent.
No. 10645.
Supreme Court of South Dakota.
December 16, 1969.
Rehearing Denied January 23, 1970.
*51 Gary R. Richards, Spearfish, for plaintiff and appellant.
Overpeck, Hamblin & Mueller, Belle Fourche, for defendant and respondent.
HOMEYER, Judge.
By this appeal review is sought of a judgment and decree entered in a declaratory judgment action which enjoins the plaintiff, James L. Loescher, appellant herein, from practicing veterinary medicine in South Dakota within a 25 mile radius of the City of Spearfish for a 10 year period beginning July 1, 1965 and ending June 30, 1975.
Both plaintiff and the defendant herein, Robert A. Policky, are veterinarians licensed to practice in South Dakota. Policky resides at Spearfish, in Lawrence County, South Dakota, where he has an established veterinary practice and an *52 animal hospital used in connection with such practice. During the latter part of January 1965, Loescher was working for a Rapid City veterinarian, when contacted by Policky concerning possible employment to assist in the Spearfish practice. Discussion resulted in Loescher being employed by Policky on a salary and commission basis commencing work on or about February 15, 1965. Although a written contract and the provisions thereof were discussed from the inception, the contract was not formally executed until July 1, 1965, the date it bears. Both parties were familiar with its contents at the time of execution.
The contract specifies the place of practice and employment as Spearfish, Lawrence County, South Dakota, and contains the following provision:
"It is futher agreed by the Manager that upon the termination of this agreement he, said Manager, cannot enter into the practice of veterinary medicine in Lawrence County, South Dakota, nor can he work as an employee for another veterinarian whose practice extends into or covers the trade area of Lawrence County, South Dakota, for a period of ten years after termination of this agreement."
Appellant's prime contention is that this restrictive clause does not conform to the time and place requirements of our statute; consequently it is void and the trial court erred in granting the injunction.
The original territorial statute[1] pertaining to unlawful contracts with which we are here concerned consisted of three sections:
Section 959: "Every contract by which any one is restrained from exercising a lawful profession, trade or business of any kind, otherwise than as provided by the next two sections, is to that extent void.
Section 960: "One who sells the good will of a business may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or a part thereof, so long as the buyer, or any person deriving title to the good will from him, carries on a like business therein.
Section 961: "Partners may, upon or in anticipation of a dissolution of the partnership, agree that none of them will carry on a similar business within the same city or town where the partnership business has been transacted, or within a specified part thereof."
These sections were included in subsequent codes[2] with slight change until 1929 when section 900 of the Revised Code of 1919 was amended[3] by adding thereto the following:
"and an employee may agree with an employer, at time of employment, or at any time during such employment, not to engage directly or indirectly in the same business or profession as that of his employer for any period not exceeding ten (10) years from date of such agreement and within any specified territory not exceeding a radius of twenty-five (25) miles from the principal place of business of the employer, as specified in such agreement. Provided, however, that such contracts between employee and employer shall apply only to those engaged in some profession, the practitioners of which must be duly licensed in the state of South Dakota."
In the 1939 revision the foregoing sections were combined into one section with three subsections,[4] and in the 1967 compilation they constitute four separate sections.[5]
*53 Four other states have the same or similiar statutes. The original territorial statute is a verbatim copy of the statute of California[6] which dates back to 1872 and was taken from Field's New York Civil Code.[7] North Dakota and Oklahoma have a like statute dating from territorial days and statehood.[8] Alabama included this statute in their 1923 Code,[9] and then Section 6827 was amended in 1931.[10]
In this state, as well as elsewhere, there are many decisions dealing with contracts in restraint of trade. Decisions of this court in which the validity of restrictive clauses were considered pertain to the sale of the good will of a business or the dissolution of a partnership. Prescott v. Bidwell, 18 S.D. 64, 99 N.W. 93; Griffing v. Dunn, 23 S.D. 141, 120 N.W. 890; Brown v. Edsall, 23 S.D. 610, 122 N.W. 658; Public Opinion Publishing Co. v. Ransom, 34 S.D. 381, 148 N.W. 838; Kidder Equity Exchange v. Norman, 42 S.D. 229, 173 N.W. 728, 5 A.L.R. 1180. See also Lien v. Northwestern Engineering Co., 73 S.D. 84, 39 N.W.2d 483. We have found no cases wherein the 1929 amendment was discussed. North Dakota, California and Oklahoma have no similar amendment. The Alabama amendment is in many respects similar to ours.
It will be noted that the legislature inserted the words "is to that extent void" in the original statute. Decisions from other states with like statutes generally have construed this to mean, as applied to following section relative to the sale of the good will of a business, that a contract restraining the seller of the business from engaging in a competitive business is not wholly void when either time or area exceeds limits permitted by statute. City Carpet Beating, etc. v. Jones, 102 Cal. 506, 36 P. 841; Franz v. Bieler, 126 Cal. 176, 56 P. 249, 58 P. 466; Edwards v. Mullin, 220 Cal. 379, 30 P.2d 997; Wesley v. Chandler, 152 Okl. 22, 3 P.2d 720; Hartman v. Everett, 158 Okl. 29, 12 P.2d 543. See also Wood v. May, 73 Wash.2d 307, 438 P.2d 587, where no statute was involved.
In Mahlstedt v. Fugit, 79 Cal. App. 2d 562, 180 P.2d 777, a contract which was construed to include a sale of good will of the business did not specify the restricted area. The court said:
"If the contract is unrestricted as to the territory in which the seller agreed to refrain from competition with the purchaser of his business, or if it includes more territory than that provided by law it will be construed to be operative within the county or portion thereof in which the business is located. City Carpet, etc., Works v. Jones, 102 Cal. 506, 512, 36 P. 841; Stephens v. Bean, 65 Cal. App. 779, 783, 224 P. 1022; General Paint Corp. v. Seymour, 124 Cal. App. 611, 614, 12 P.2d 990. And if the agreement is indeterminate as to the period of its operation, or is without time limit, the court will construe it to cover the time permitted by law. Gregory v. Spieker, 110 Cal. 150, 153, 42 P. 576, 52 Am. St. Rep. 70; Brown v. Kling, 101 Cal. 295, 298, 35 P. 995."
The courts of Alabama under their amendment, see footnote 10, have considered *54 the employer-employee relationship. They have recognized that the connotation and purpose of the amendment is closely related to the protection of the good will of a going business and a purchaser thereof. As such it has been held a contract of employment may contain a provision restricting the employee from engaging in a competitive business or employment within a limited area. Shelton v. Shelton, 238 Ala. 489, 192 So. 55.
In McNeel Marble Co. v. Robinette, 259 Ala. 66, 65 So. 2d 221, the restraint in the employment contract undertook to bind the employee from competing in 47 counties in Alabama and 5 in Georgia. The statute imposed a one-county limitation and an injunction was sought and granted for only Jefferson County. The court held this was permissible. See also Yost v. Patrick, 245 Ala. 275, 17 So. 2d 240; Rush v. Newsom Exterminators, Inc., 261 Ala. 610, 75 So. 2d 112; Hill v. Rice, 259 Ala. 587, 67 So. 2d 789.
Appellant relies strongly upon the decision in Mandan-Bismarck Livestock Auction v. Kist, N.D., 84 N.W.2d 297, to support his position. We have considered that case and insofar as it may purport to hold wholly void a covenant in restraint of trade in excess of the statutory territorial limitation we believe it is contrary to holdings in jurisdictions with like statutes and we are not persuaded by it. Other factors appear to have influenced that decision. Included are attempted enforcement of the whole contract against the sellers who received only a nominal consideration; absence of formula for apportioning the consideration; and the fact that specific performance of the contract was sought by the buyers when its terms were not "sufficiently clear, specific and definite in its terms to entitle the plaintiff to specific performance."
In a later case, Igoe v. Atlas Ready-Mix, Inc., N.D., 134 N.W.2d 511, the Kist case was analyzed and distinguished. Relying strongly upon Olson v. Swendiman, 62 N.D. 649, 244 N.W. 870, discussed in Kist, the North Dakota court held a covenant in restraint of trade included in the sale of business which specified two cities was enforceable in the City of Bismarck where the business appears to have been located, but void and unenforceable in the other city. This accords with the majority view of states with similar statutes which we choose to follow.
Appellant also urges invalidity because he says the covenant in restraint is in excess of the maximum time limit permitted by the statute. This argument is premised on the fact that the contract provides the restraint shall be "for a period of ten years after the termination of this agreement." The term of employment was for one year commencing July 1, 1965, and from year to year thereafter for an indefinite time, but could be terminated by either party after the primary term upon 60 days' written notice. The statute limits the restraint "for any period not exceeding ten (10) years from date of such agreement." We see no merit to this contention.
In Public Opinion Publishing Company v. Ransom, supra, the agreement on sale of a business provided for a restraint of ten years under the statute which prescribed a limitation of "so long as the buyer, or any person deriving title to the good will from him, carries on a like business therein." This court refused to apply a strict construction to the contract and considered failure to comply with the time terminology of the statute of no significance so long as the contract was capable of enforcement during the time limits of the statute.
Under a like statute the California court in Gregory v. Spieker, 110 Cal. 150, 42 P. 576, held where no time limit was fixed the contract was not void but would be enforced within the terms of the statute. In Akers v. Rappe, 30 Cal. App. 290, 158 P. 129, a contract fixing the term at twenty years was enforced when the seller six years after the contract engaged in a competing business. See also Brown v. Kling, 101 *55 Cal. 295, 35 P. 995 and Mahlstedt v. Fugit, supra.
Finally appellant urges there is no consideration for the restraint. As stated, supra, the contract was executed on July 1, 1965, and it continued until about March 8, 1967, when appellant voluntarily terminated his employment. Within a week thereafter he rented a building and engaged in the practice of veterinary medicine at the City of Spearfish, in Lawrence County, South Dakota, and advertised such business.
In our opinion, compliance with the contract through the first year, and from July 1, 1966, to its termination, and the employer's apparent willingness to continue it for an indefinite period into the future provided adequate and valuable consideration for the covenant in restraint. Stokes v. Moore, 262 Ala. 59, 77 So. 2d 331. See also Hill v. Rice, 259 Ala. 587, 67 So. 2d 789, and D. B. Clayton & Associates v. McNaughton, 279 Ala. 159, 182 So. 2d 890; 17 C.J.S. Contracts § 257; 35 Am.Jur., Master & Servant, § 99.
The contract limited the restraint to Lawrence County. The judgment enjoined and restrained appellant from practicing veterinary medicine in South Dakota within a 25 mile radius from the City of Spearfish. This court can take judicial notice that the area encompassed by the injunction includes territory outside Lawrence County and consequently in excess of the agreement of the parties although within the confines of the statute. Courts may enforce the covenant within the terms of the statute, but they cannot enlarge the agreement of the parties or make a new agreement for them. McNeel Marble Co. v. Robinette, supra. It is a simple application of the rule that the greater includes the lesser.
The judgment should be modified by limiting the injunction to the City of Spearfish and that part of Lawrence County, South Dakota, located within a radius of 25 miles of defendant's place of business within that city. As modified, it is affirmed. No costs will be taxed.
RENTTO and HANSON, JJ., concur.
BIEGELMEIER, P. J., dissents.
ROBERTS, J., concurs in dissent.
BIEGELMEIER, Presiding Judge (dissenting).
The North Dakota Supreme Court has had four cases before it involving restraint of trade contracts:
(1) Bessel v. Bethke, 56 N.D. 1, 215 N.W. 868, where in a sale of a business the vendor agreed not to engage in a competing business in "the city of Harvey, nor at any other place within a radius of 15 miles";
(2) Olson v. Swendiman, 62 N.D. 649, 244 N.W. 870, where a dentist agreed not to practice in the "city of Grand Forks, N.D., or the city of East Grand Forks, Minn.";
(3) Igoe v. Atlas Ready-Mix, Inc., N.D., 134 N.W.2d 511, where the restraint was "within the City of Bismarck or the City of Mandan"; and
(4) Mandan-Bismarck Livestock Auction v. Kist, N.D., 84 N.W.2d 297, where seller agreed not to engage in business in the Counties of "Morton and Burleigh".
While it denied specific performance in (4) for the reason the contract was void, it enforced the contracts in (1), (2) and (3) by following the "blue pencil rule" mentioned in the Igoe opinion by blue pencilling or striking out the illegal part and enforcing the legal remainder in each case, thus striking out the divisible and separable "15 miles" in (1); "East Grand Forks" in (2) and "Mandan" in (3) as they were in violation of its similar statute, N.D. Century Code, § 9-08-06.
*56 We are not confronted with the approval of that rule as the court here goes further and enforces the agreement, not by reference to or application of the blue pencil rule, but by changing the contract of the parties in striking out all the provisions and words of restraint relative to its larger territorial area and 10 years after termination of the contract and inserts a restraint to the City of Spearfish and that part of Lawrence County located within 25 miles of his former employer's place of business therein for 10 years from the date of the contract.
Because contracts in unreasonable restraint of trade are invalid against public policy, 17 C.J.S. Contracts § 238, and the contract at bar exceeds both in territory and time the standard of reasonableness fixed in SDCL 1967, § 53-9-8 and § 53-9-11, it should not be enforced.
NOTES
[1] Civ.C. 1877, §§ 959, 960, 961.
[2] C.L. 1887, §§ 3583, 3584, 3585; R.Civ.C. 1903, §§ 1277, 1278, 1279; R.C. 1919, §§ 898, 899, 900.
[3] S.L. `29, Ch. 88.
[4] S.D.C. 1939, § 10.0706.
[5] S.D.C.L. 1967, 53-9-8, 53-9-9, 53-9-10 and 53-9-11.
[6] Cal.Civ.Code §§ 1673, 1674, 1675 (1872).
[7] Field's Draft of New York Civil Code, §§ 833, 834, 835.
[8] North Dakota Century Code 9-08-06; Oklahoma Statutes, 1941, Title 15, §§ 217, 218, 219.
[9] Code of 1923, §§ 6826, 6827, 6828. (Ala.)
[10] General Acts 1931, page 647, now Code of Alabama, Title 9, § 23, which reads: "One who sells the good will of business may agree with the buyer, and one who is employed as an agent, servant, or employee may agree with his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city, or part thereof, so long as the buyer or any person deriving title to the good will from him, and so long as such employer carries on a like business therein." The parts italicized in substance were added by the 1931 amendment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600230/ | 571 So. 2d 710 (1990)
STATE of Louisiana, Appellee,
v.
Richard Bernard VAIL, Appellant.
No. 22124-KA.
Court of Appeal of Louisiana, Second Circuit.
December 5, 1990.
*711 Hunter, Scott, Blue, Johnson & Ross, by Louis G. Scott, Monroe, for appellant.
William J. Guste, Jr., Atty. Gen., Baton Rouge, James A. Norris, Jr., Dist. Atty., John P. Spires, Asst. Dist. Atty., Monroe, for appellee.
Before MARVIN, C.J., and LINDSAY, and HIGHTOWER, JJ.
MARVIN, Chief Judge.
After being charged with two counts of armed robbery and two counts of conspiracy to commit armed robbery, and bargaining to plead guilty to armed robbery in return for dismissal of the other charges and for a sentence of not more than 30 years, Defendant Vail appeals, as excessive, his sentence to 25 years. The sentence limitation was to be, and the sentence imposed was, in accord with LRS 14:64, at hard labor and without benefit of parole, probation or suspension of sentence.
Finding the sentence not excessive, we affirm.
IS THE SENTENCE REVIEWABLE?
This threshold issue is created by opinions of this and other courts which contain language to the effect that
Where a defendant pleads guilty as a result of plea negotiations ... understanding that there is a ceiling on the sentence which will be imposed, he may not complain [on appeal] either that the sentence is excessive or that the trial judge failed to give reasons for the sentence as required by CCrP 894.1.
See e.g., State v. Ratcliff, 564 So. 2d 778 (La.App. 2d Cir.1990); State v. Lewis, 564 So. 2d 739 (La.App. 2d Cir. 1990).
Similar language was contained in earlier reported cases, but usually as dicta and only where the sentence was reviewed for excessiveness. See e.g. State v. Brown, 427 So. 2d 1284 (La.App. 2d Cir.1983); State v. Wilson, 438 So. 2d 635 (La.App. 2d Cir. 1983). In the one earlier case in this circuit where the reviewability issue was squarely raised by the State, we deemed it unnecessary to resolve the issue because we concluded that the sentence appealed was justified by the PSI and the record and was not excessive. State v. James M. Bell, 438 So. 2d 636 (La.App. 2d Cir.1983).
The supreme court cases usually cited in support of the language are State v. Curry, 400 So. 2d 614 (La.1981); State v. Hicks, 403 So. 2d 676 (La.1981), and State v. Bell, 412 So. 2d 1335 (La.1982). Both Hicks and Curry, as we understand their respective cases, bargained to plead guilty in return for a specific sentence and not for a sentence limitation, ceiling or cap. Hicks was "specifically advised that as a part of the plea bargain he would be sentenced to serve 15 years ... which were to run concurrently with a life sentence ..." The "same circumstances" pertained in Curry, according to the Hicks court. 403 So.2d at 677.
*712 Bell did not agree to a specific sentence, but to a ceiling or sentence cap "not to exceed ten years," in his plea bargain. That court reviewed the sentence for excessiveness, affirming it, while complimenting the trial judge for his observance of CCrP 894.1, but further said:
It has been held by this court that where a specific [sic] sentence has been agreed to as ... a plea bargain, that sentence cannot be appealed as excessive and there is no need for the trial judge to give reasons for the sentence as required by Art. 894.1, State v. Curry ... This continues to be true. But we commend [the trial judge] for the practice followed here ... his close familiarity with defendant's history ...
412 So.2d at 1336-7. Emphasis supplied.
Bell agreed to plead to the lesser crime of attempted aggravated rape instead of the completed crime. One of the four elected justices on the Bell court noted in his concurrence that the maximum sentence imposed for the attempt should be affirmed "only" on the basis that the aggravated rape had been completed. J. Dennis, concurring, 412 So.2d at 1337.
Later noting the temptation to "rely on the fact that ... sentences were agreed to... [and] to summarily conclude ... to bar the defendant from complaining of ... excessive sentence," the court "squarely" concluded that
review of possible constitutional error is not absolutely precluded by a defendant's agreement to plead guilty or to receive a particular sentence.
State v. Jett, 419 So. 2d 844, 852 (La. 1982).
The Jett court was comprised of Justices Calogero, Dennis, Watson and Lemmon, and pro tempore Justices Norris, who authored the opinion, and Sexton, both of this circuit, and Lobrano of the Fourth Circuit.
State v. Lewis, 434 So. 2d 1261 (La.App. 1st Cir.1983), also questioned the correctness of earlier cases in that circuit that precluded a defendant from complaining of an excessive sentence that is agreed to as a part of a plea bargain. Three judges concurring, said
From all of this we conclude[d] that the "rule" of Curry and its progeny need not be applied in every case where a defendant and the court agree on the sentence to be imposed[.]
434 So.2d at 1263.
The cases of Curry, Hicks, and Bell, in our opinion, do not deprive a defendant the right of appealing, as excessive, a sentence imposed under a plea bargain for a sentence of not more than a stated number of years, sometimes referred to as a sentence limitation, cap or ceiling.
We believe our conclusion is correct primarily because the trial court exercises discretion as to the sentence to be imposed in such a situation. A court's sentencing discretion is subject to the constitutional guideline for excessiveness and to the statutory guidelines of CCrP Art. 894.1 for particularizing the sentence to the individual defendant and to his criminal conduct. The traditional purposes and goals for forbidding and punishing criminal conduct contemplate the exercise of sentencing discretion and appellate review of that exercise. See Justice Tate's concurring opinion, State v. Williams, 340 So. 2d 1382, 1384-1389 (La.1976). LaFave & Scott, Handbook on Criminal Law, West Publishing Co., 5th Reprint 1980, Chap. 1, § 5. Our constitution guarantees review. Art. 1, §§ 19, 20.
It is the sentencing discretion of the trial court and not the plea bargain of the defendant that is reviewed under LSA-Const., Art. 1, §§ 19 and 20, when a sentence is appealed as excessive.
Where a defendant pleads guilty under a plea bargain for a specific sentence to a stated number of years, the trial court has no sentencing discretion to exercise or to have reviewed on appeal. The plea agreement between the state, the trial court, and the defendant for a specific sentence effectively deprives the court of all sentencing discretion.
The distinction between the reviewability of a bargained-for specific sentence and a sentence within a bargained-for sentence *713 limitation, or cap, or ceiling, was clearly drawn in the unanimous opinion by the full supreme court in State v. Smack, 425 So. 2d 737, 738 (La.1983), authored by Justice Marcus:
The state agreed to a sentence limitation of five years and dismissal of the two remaining counts.... Defendant was sentenced to ... five years.
Defendant contends the trial judge erred in imposing an excessive sentence. This issue is before us for review [Citing State v. Pearson, 425 So. 2d 704 (La. 1982), Bell].
Defendant's plea bargain was not for a specific sentence, but for a maximum sentence limitation. Therefore, State v. Hicks ... and State v. Curry ... are inapposite.
Emphasis and paragraphing supplied.
A defendant has the right to appeal a sentence for excessiveness. LSA-Const. Art. 1, § 20. Such an appeal questions whether the sentencing court has abused its discretion. The right to appeal, of course, may be intelligently waived. Art. 1, § 19. See State v. Simmons, 390 So. 2d 504 (La.1980). An unconditional plea of guilty waives all non-jurisdictional defects in the proceedings prior to the plea, but does not waive a complaint of sentence excessiveness because the sentence occurs after the plea. State v. Williams, 340 So. 2d 1382, 1383 (La.1976); State v. Cox, 369 So. 2d 118 (La.1979). The bargain to plead guilty is only one factor to be considered when excessiveness of sentence is argued. State v. Jett, supra.
We hold that a waiver of the constitutional right to appeal a sentence, as excessive, is not to be assumed or inferred solely from the circumstances when a defendant bargains for a sentence limitation, ceiling or cap, under which the trial court has sentencing discretion.[1] In the absence of an express and intelligent waiver by the defendant, that sentence is reviewable.
As in Smack, Vail's plea bargain was not for a specific sentence, but for a maximum sentence limitation. Vail's plea bargain for a sentence not to exceed 30 years did not deprive the trial court of all sentencing discretion. As did Smack, Vail now appeals, as excessive, the sentence that was imposed. This issue is before us for review and, in accord with our constitutional duty, we review the sentence for excessiveness. LSA-Const. Art. 1, §§ 19, 20.
Cases by this court suggesting that sentences subject to a bargained-for ceiling or cap are not reviewable, which are contrary to State v. Smack, State v. Jett, cited supra, and to this opinion, are overruled. Cases from other circuits which may be contrary to this opinion are not followed. See, e.g., State v. Benton, 432 So. 2d 334, footnote one (La.App. 1st Cir.1983).
SENTENCE REVIEW
On October 8, 1988, defendant and two accomplices, by design, went to a convenience store in West Monroe where one of the accomplices held a pistol on the attendant and demanded money. The attendant asked whether this was a joke. Vail then took the money from the cash register. One accomplice shot in the direction of the attendant who fell to the floor, feigning an injury, as Vail and his companions fled. A similar armed robbery occurred one week later and served as the basis for the charge of the second armed robbery and conspiracy counts against Vail that were dismissed under the plea bargain.
Vail concedes in brief that he agreed to a sentence of up to 30 years, but argues that the 25-year hard labor sentence imposed without benefit of probation, parole, or suspension of sentence is more severe than a 30-year hard labor sentence. He argues that since a person ordinarily may be paroled after serving one-third of his sentence, he expected to serve ten years at *714 most, but he now must serve 25 years. This argument ignores that all sentences for armed robbery are without benefit (LRS 14:64) and that during the course of Vail's guilty plea he acknowledged understanding, on two occasions the court's telling him that he was facing a sentence without benefit of probation, parole, or suspension of sentence.
Vail also argues the trial court did not adequately consider such factors as his age, 19, that he had a GED, and that he "readily admitted to his mistakes." The record belies this last claim. During his second and third statements to authorities, Vail admitted his initial statement was not true.
Reviewing the PSI report, the trial court noted that Vail is a single, 19-year-old native of Monroe who had a seventh grade education, no occupation, and two younger siblings. As a juvenile, Vail had been involved in shoplifting and theft incidents. He was later confined to LTI as a juvenile for committing a burglary and was placed on supervised probation in January 1986. In November 1986 Vail was confined for an armed robbery in which a firearm was shot in the direction of the victim. Vail thereafter fled confinement, committing a simple escape, for two months. He was then rearrested and committed to the department of corrections as an adult. He was released from custody on September 26, 1988, and committed the armed robbery here involved less than two weeks after being released.
Vail and his accomplices consciously sought out a store with only one attendant to rob. A shot was fired at the attendant. Earlier that night Vail and his accomplices robbed the attendant of another store in Rayville.
The trial court, mentioning the factors of CCrP Art. 894.1, found that Vail's conduct threatened serious harm and that he and others had planned the robbery. Vail's extensive history of delinquency and the short period between his release and the commission of the armed robbery indicated the likelihood of future criminal misconduct. The court concluded that Vail was in need of correctional treatment and that a lesser sentence would deprecate the seriousness of Vail's conduct.
Vail faced from 5 to 99 years at hard labor, without benefit, for each armed robbery. The plea bargain significantly reduced Vail's sentence exposure. The trial court adequately complied with the requirements of Art. 894.1. The trial court's reasons for sentence are supported by the record.
Vail's background of property offenses and armed robbery shows him to be a danger to society. His prior escape from custody and violation of probation warrant incarceration. LRS 14:64 requires it.
Considering the circumstances of this crime and Vail's history, the sentence imposed is not needless or purposeless. It does not shock our sense of justice and is not an abuse of the trial court's broad sentencing discretion.
DECREE
The sentence appealed is AFFIRMED.
HIGHTOWER, J., concurs with written reasons.
HIGHTOWER, Judge, concurring.
I concur with the affirmance of the sentence, but emphatically disagree with the language of the majority opinion allowing, under the circumstances of this case, appellate review of the sentence imposed.
Specifically, the question regarding appellate review of a trial court's order of incarceration, within the limits of a bargained-for plea agreement, is more appropriately handled as per State v. Bell, 412 So. 2d 1335 (La.1982); State v. Lewis, 564 So. 2d 739 (La.App. 2d Cir.1990); and State v. Ratcliff, 564 So. 2d 778 (La.App. 2d Cir. 1990). Those cases recognize that when a defendant agrees to a sentence ceiling pursuant to a plea bargain, and the court acts within that limit, he cannot complain of excessiveness.
Clearly, this is the more logical conclusion. When a defendant, fearful of a possible lengthy jail term, agrees to a "cap," he *715 effectively precludes the trial court from imposing sanctions beyond the parameters agreed upon, and he additionally prevents the state from seeking a greater sentence. Hence, he should not later be able to complain of the result achieved through the very agreement he negotiated. Any other position will unjustifiably favor the offender, and exact a heavy price in undermining the reasonableness of the criminal justice system.
The average, law-abiding citizen expects more finality from criminal proceedings. Already suspicious of the plea bargaining process, he can certainly find, within the majority's rationale, additional reasons for frustration and resentment. Public dissatisfaction with such illogicality heightens daily.
Therefore, I concur with the affirmance, but respectfully disagree with the indicated statements of the majority.
NOTES
[1] A defendant may reduce his sentencing exposure for an armed robbery other than by bargaining for a sentence limitation, ceiling, or cap. A plea to any of the crimes in the responsive verdict article (814 A 22, attempted armed robbery, first degree robbery, attempted first degree robbery, simple robbery, or attempted simple robbery) similarly and in varying degrees would have reduced Vail's exposure. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/482942/ | 811 F.2d 593
33 Cont.Cas.Fed. (CCH) 75,063
DARWIN CONSTRUCTION CO., INC., Appellant,v.UNITED STATES, Appellee.
Appeal No. 86-1370.
United States Court of Appeals,Federal Circuit.
Feb. 12, 1987.
Joel S. Rubinstein, Sadur & Pelland, Chartered, Washington, D.C., argued for appellant. With him on the brief was Sheira Miller, of counsel.
Sharon Y. Eubanks, Commercial Litigation Branch, Dept. of Justice, of Washington, D.C., argued for appellee. With her on the brief were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director. Allan Elmore, NAVFACENGCOM, Washington Navy Yard, Washington, D.C., of counsel.
Before NIES, Circuit Judge, COWEN, Senior Circuit Judge, and NEWMAN, Circuit Judge.
COWEN, Senior Circuit Judge.
1
Appellant (Darwin) appeals from a reconsidered decision of the Armed Services Board of Contract Appeals (ASBCA or Board) which had reversed its earlier holding. The Board initially converted a termination for default into a termination for the convenience of the Government. Upon Government's motion for reconsideration, the Board reversed its earlier decision and upheld the termination for default. We reverse the Board's amended decision and remand with instructions for the Board to convert the termination for default into a termination for the convenience of the Government in accordance with the Board's initial decision.
BACKGROUND
2
Darwin was awarded a fixed price construction contract on June 3, 1983, for certain improvements to the Propellant Machinery Facility (PMF) at the Naval Ordnance Station (NOS) in Maryland. Contract work was to be completed within 150 calendar days, by November 15, 1983.
3
The contract provided that the contractor would be allowed access to the construction site only during two 14 calendar day periods which were to be separated by another period of at least 14 calendar days during which time normal Naval production operations at the facility would take place. Based upon the schedule agreed upon between the parties, the last day for construction was to have been November 7, 1983. At the conclusion of this second 14-day work period, Darwin had completed approximately 65 percent of the required contract work.
4
In response to a "show cause" letter Darwin noted that the late delivery of necessary equipment made it impossible for the contract to be completed by November 7. Darwin, nevertheless, asserted that it was physically and financially ready to complete the remaining contract work within a two week period beginning on December 17, 1983. Nevertheless, on February 13, 1984, the Navy terminated the contract for default, claiming that Darwin had not diligently performed during the two 14-day periods when it had access to the site. The Navy alleged that a 2-week shutdown of the facility during December was not possible in order to permit Darwin to complete the contract.
5
On appeal to the ASBCA, the Board found that "on the record * * * no excusable cause for delay has been proven by the appellant. Therefore, as of 15 November, the date of completion for the performance of the captioned contract, Darwin was in default." Darwin Constr. Co., ASBCA No. 29340, 84-3 BCA p 17,673 at 88,149 (1984).
6
Despite its finding of default, the Board held that the termination for default "must be converted to one for convenience of the Government." The decision stated that "the Board finds that this termination for default was arbitrary and capricious because it is evident to the Board that the default action was taken solely to rid the Navy of having to further deal with Darwin." (Emphasis supplied).
7
The Board's conclusion regarding the arbitrary action of the contracting officer was based, among others, on the following findings of fact made by the Board:
8
The only reason Darwin was unable to complete the work in time was that the material needed for the unfinished portion was not delivered in the second 2-week period for performing the contract. On November 15, 1983, the Navy knew that Darwin had performed 65 percent of the work in an acceptable manner, and there was no evidence to suggest that the contractor was financially unable to complete the remainder of the work.
9
The Navy knew that renewed performance could not begin at the very earliest until August 1984, and therefore, the Navy had no basis for concluding that Darwin's late performance in November 1983 would still be a viable cause for delay in August 1984--9 months later.
10
The failure of Darwin to complete the work on time did not interfere with the Navy's use of the building, which was still used for the production of explosives since Darwin had restored the building into usable condition. Darwin contemplated working from December 27 through December 31, 1983, having estimated that the remaining work could be completed in 4 days. There was no urgency associated with the contract.
11
When the contract was terminated on February 3, 1984, the Navy estimated the next available date when the remaining work could be completed as August 1984, but by the date of the hearing, this hoped-for completion date had regressed to January 1985.
12
At the time Darwin was performing work on the contract, many other construction contracts were being performed at the same ordnance station, and the Navy was content to collect liquidated damages for those contracts in which performance had been delayed.
13
Although needed material was delivered by October 4, 1983, Darwin did not receive Navy approval of the material until October 19, 1983. At that time, Darwin submitted a written request for a time extension on account of that delay. The Board found that there was no evidence in the record that the contracting officer had acted on that request as required by General Provision 5 of the contract, entitled "Termination for Default--Damages for Delay--Time Extension." With respect to the default termination, the Board observed that "this termination for default exudes an odor piscatorial," citing Alinco Life Insurance Co. v. United States, 373 F.2d 336, 341, 178 Ct. Cl. 813 (1967).
14
Accordingly, the Board converted the default termination into one for the convenience of the Government.
15
On the basis of the Government's motion for reconsideration, the Board reversed its initial decision and upheld the termination for default. Darwin Constr. Co., ASBCA No. 29340, 86-2 BCA p 18,959 (1986).
16
In reversing its decision on reconsideration, the Board, at the Government's urging, noted that the Board should recognize and follow the decision in Kalvar Corp. v. United States, 543 F.2d 1298, 211 Ct. Cl. 192 (1976), cert. denied, 434 U.S. 830, 98 S. Ct. 112, 54 L. Ed. 2d 89 (1977), in which the court held that "well-nigh irrefragable proof" is required to induce the court to abandon the presumption of good faith dealing by public officials.
17
However, the Board again stressed its determination that the action of the contracting officer in terminating the contract was "arbitrary and capricious, given the unique circumstances present at the time of default."
18
Furthermore, the Board stated that its initial decision was at variance with a decision by a Senior Deciding Group which held that once the right of termination is acquired by the Government and if that right is not lost by the Government because of its conduct, the Board will uphold the termination for default without any inquiry into the "motives" or judgment of the contracting officer leading to the decision to terminate, citing Nuclear Research Associates, Inc., ASBCA No. 13563, 70-1 BCA p 8,237 (1970). Since this holding was binding on the Board's panel in this case, the Board declared that the holding should have been followed in the initial decision. Therefore, it upheld the termination for default.
DISCUSSION
I.
19
Darwin accepts all of the findings of fact made by the Board in its initial decision. However, Darwin contends that the Board erred as a matter of law in holding that it could not inquire into the motives or judgment of the contracting officer in electing to terminate the contract for default, once the Government determined that the contractor was in technical default. We agree that this rule of administrative restraint is legally erroneous and contrary to long-established judicial precedent as hereinafter set forth. Moreover, the Board's holding is a ruling on a question of law, which is neither final nor binding on the court. Zinger Construction Co. v. United States, 807 F.2d 979, 981 (Fed.Cir.1986), citing American Electronic Laboratories, Inc. v. United States, 774 F.2d 1110, 1112 (Fed.Cir.1985).
II.
20
As stated above, the Board found that the termination for default was "arbitrary and capricious because it was evident to the Board that the default action was taken solely to rid the Navy of having to deal with Darwin." On the basis of that finding1 we hold that the Board's decision on reconsideration is squarely in conflict with Schlesinger v. United States, 390 F.2d 702, 709, 182 Ct. Cl. 571 (1968).
21
The Board's finding that the contracting officer abused his discretion provides the legal predicate for converting the termination for default into one for the convenience of the Government. As the court pointed out in Schlesinger, the default article of the contract does not require the Government to terminate on a finding of default, but merely gives the procuring agency the discretion to do so, and that discretion must be reasonably exercised. Id. at 709, 182 Ct. Cl. 571. The facts of the case before us are almost identical to the salient facts in Schlesinger, where it was found that the contractor's status of technical default served only "as a useful pretext for taking the action found necessary on other grounds unrelated to the plaintiff's performance or to the propriety of the extension of time." Id. Because of the remarkable similarity in the facts, we quote the following from Schlesinger:
22
As in John A. Johnson Contracting Corp. [v. United States], supra, the Navy used the termination article as a "device" and never made a "judgment as to the merits of the case". 132 F. Supp. at 705, 132 Ct.Cl. at 659-660 [1955]. Such abdication of responsibility we have always refused to sanction where there is administrative discretion under a contract. New York Shipbuilding Corp. v. United States, 385 F.2d 427, 435, 436-437, 180 Ct. Cl. 446, 460 (June 1967), and cases cited. This protective rule should have special application for a default-termination which has the drastic consequence of leaving the contractor without any further compensation. See Acme Process Equip. Co. v. United States, 347 F.2d 509, 527, 528, 171 Ct. Cl. 324, 355 (1965) rev'd on other grounds, 385 U.S. 138, 87 S. Ct. 350, 17 L. Ed. 2d 249 (1966).
23
Id.
24
In a recent decision, Quality Environment Systems v. United States, 7 Cl.Ct. 428, 432 (1985), the Claims Court relied on the Schlesinger decision. The court held that if it was determined that a default decision represented an abuse of discretion, the contractual remedy would be to convert the termination into one for the convenience of the Government.
25
Accordingly, we hold as the court held in Schlesinger that the Board's decision on reconsideration must be reversed and the case remanded with instructions for the Board to reinstate its initial decision in which the default termination was converted into one for the convenience of the Government.
III.
26
The Government has made only one argument as the basis for affirmance of the Board's decision. The Government asserts that since Darwin failed to demonstrate with "well-nigh irrefragable proof" that the Navy's default termination of the contract was exercised in bad faith, the termination was proper. In support of its contention, the Government cites Kalvar Corp. v. United States, 543 F.2d 1298, 1301-02, 211 Ct. Cl. 192 (1976), cert. denied, 434 U.S. 830, 98 S. Ct. 112, 54 L. Ed. 2d 89 (1977), and Knotts v. United States, 121 F. Supp. 630, 636, 128 Ct. Cl. 489 (1954).
27
In view of the Board's unequivocal finding that the contracting officer's default decision was arbitrary and capricious, we reject the Government's argument on several grounds.
28
In the first place, the Contract Disputes Act of 1978 (CDA) expressly provides that an agency board "is authorized to grant any relief that would be available to a litigant asserting a contract claim in the United States Claims Court." 41 U.S.C. Sec. 607(d). Furthermore, there is no doubt that in the exercise of its CDA jurisdiction under 28 U.S.C. Sec. 1491, the Claims Court has held that it is authorized to set aside the decision of a contracting officer where it is established that his decision was arbitrary or capricious. See, e.g., International Verbatim Reporters, Inc. v. United States, 9 Cl.Ct. 710, 715 (1986); Udis v. United States, 7 Cl.Ct. 379, 387 (1985), and Olympia USA, Inc. v. United States, 6 Cl.Ct. 550, 554 (1984). The Udis case involved a contractor's appeal from the contracting officer's default decision. The court ruled that while the contracting officer had the discretionary authority to terminate the contract, "the exercise of that discretion must be fair and reasonable, not arbitrary or capricious." 7 Cl.Ct. at 387, citing Everett Plywood Corp. v. United States, 512 F.2d 1082, 1090, 206 Ct. Cl. 244 (1975).
29
We find nothing in Kalvar or Knotts which requires a different result. In Kalvar, the contractor alleged but failed to prove that the contracting officer had abused his discretion and had also acted in bad faith. In a footnote to that decision, the court stated:
30
We need not decide whether bad faith is tantamount to abuse of discretion, since in our view plaintiff's claims indicate neither was present here. However, many of our prior decisions seem implicitly to accept the equivalence of bad faith, abuse of discretion, and gross error. See Librach v. United States, 147 Ct. Cl. 605, 614 (1959); Levering & Garrigues Co. v. United States, 71 Ct. Cl. 739 (1931); see also J. McBride and I. Wachtel, Government Contracts Sec. 5.60 (1965).
31
543 F.2d 1298, 1301 n. 1.
32
Knotts was not a contract case. There the Court of Claims held that a Government employee had been unlawfully discharged as a result of malicious conduct by her superiors, who conspired to remove her in order to provide a job for a friend of one of the supervisors. However, the court in Knotts restated the scope of review which had long been used by the Supreme Court and by the Court of Claims in Government contract cases:
33
In innumerable cases it has been held that where discretion is conferred on an administrative officer to render a decision, this decision must be honestly rendered, and that if it is arbitrary or capricious, or rendered in bad faith, the courts have power to review it and set it aside. This court has this question presented to it constantly in cases arising under Government contracts, where the contracting officer and the head of the department are given the power to render final decisions on questions of fact. Both this Court and the Supreme Court have many times held that if the decision is arbitrary or capricious or so grossly erroneous as to imply bad faith, it will be set aside. See, e.g. Burchell v. Marsh, 17 How. 344, 349, [15 L. Ed. 96], Kihlbert v. United States, 97 U.S. [Otto] 398 [24 L. Ed. 1106]; United States v. Gleason, 175 U.S. 588, 602 [20 S. Ct. 228, 233, 44 L. Ed. 284]; Ripley v. United States, 223 U.S. 695, 701 [32 S. Ct. 352, 355, 56 L. Ed. 614].
34
121 F.Supp. at 631, citing Gadsden v. United States, 78 F. Supp. 126, 127, 111 Ct. Cl. 487 (1948).
35
Thus, these decisions of the Court of Claims and the Claims Court make it abundantly clear that when a contractor persuades a court to find that the contracting officer's default decision was arbitrary or capricious, or that it represents an abuse of his discretion, the decision will be set aside. There is nothing in these decisions to support the Government's contention that the aggrieved contractor must add another layer of proof by demonstrating that the decision was also made in bad faith.
IV.
36
Although neither party has referred to them, we find that the Armed Services Procurement Regulations (ASPR) in effect at the time the contract was terminated are pertinent here and lend further support to our decision. ASPR 18-618, entitled "Termination of Fixed-Price Construction Contracts for Default," 32 C.F.R., Parts 1 to 39, Volume III, revised as of July 1, 1983, provided as follows:
37
18-618.4 Procedure in Case of Default.
38
(a) The contracting officer shall consider the following factors in determining whether to terminate a contract for default:
39
(i) the provisions of the contract and applicable laws and regulations;
40
(ii) the specific failure of the contractor and excuses, if any, made by the contractor for such failure;
41
(iii) the period of time which would be required for the Government or another contractor to complete the work as compared to the time required for completion by the delinquent contractor;
42
(iv) the effect of a termination for default on the ability of the contractor to liquidate guaranteed loans, progress payments, or advance payments; and
43
(v) any other pertinent facts and circumstances.
44
It is clear from the findings made in the Board's initial decision that the contracting officer failed to comply with the provisions of 18-618.4(a)(iii), because the Board, in its initial decision, made the following findings of fact:
45
As for the material delay, the Board is convinced that by 19 December, the material delay had ceased; by 3 February, we are morally certain there was no shortage and by August 1984 the Board is persuaded that the Navy would concede that the contractor could have had all the material needed to complete this contract. Therefore, the Navy, knowing that renewed performance could only begin at the earliest in August 1984, had no basis for concluding that the delay causing Darwin's late performance in November would still be a viable cause of delay in August, nine months later.
46
84-3 BCA at 88,150.
47
This and other Board findings set forth in the BACKGROUND portion of this opinion show that when the contract was terminated on February 13, 1984, the Navy knew that if another contractor were selected, it could not begin work until August of 1984 at the earliest, and that if Darwin had been allowed to do so, it could have completed the work in August 1984, at least as soon as and probably much sooner than a successor contractor could have performed the unfinished work.
V.
48
As stated above, the Board in its reconsideration decision relied heavily on Nuclear Research Associates, Inc., ASBCA No. 13563, 70-1 BCA p 8237 (1970). The Board summarized the holding in that case as follows:
49
[O]nce the right to termination is acquired by the Government and if that right is not lost by the Government because of its conduct, the Board will uphold the termination for default without any inquiry by the Board into the "motives" or judgment of the contracting officer leading to the decision to terminate.
50
Darwin Constr. Co., ASBCA No. 29340, 86-2 BCA p 18,959 at 95,733 (1986).
51
If we correctly understand the purport and effect of that decision, we cannot agree with it, because we think it is in conflict with the decisions of the Court of Claims, as well as the decisions of the Claims Court as discussed in Parts II and III above. Also, it is our opinion that it imposes an erroneous limitation on the statutory authority of boards of contract appeals to set aside default decisions of contracting officers in cases where the boards find that such decisions are arbitrary or capricious.
52
REVERSED AND REMANDED.
1
At oral argument, for the first time, the Government argued that this finding is not supported by substantial evidence. For two reasons, we do not consider this argument for any purpose in this case: First, the administrative record upon which the argument might have been based was available to the Government long before the filing of its brief. Therefore, it was far too late to raise the question at oral argument. Second, a party who challenges the correctness of the Board's findings of fact has the burden to specify in its brief the facts and circumstances in the Board's record which render the Board's decision lacking in substantial evidence. Jefferson Construction Co. v. United States, 368 F.2d 247, 252, 177 Ct. Cl. 581 (1966). Manifestly, the Government failed to meet this requirement | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1551072/ | 908 A.2d 967 (2006)
Society Created to Reduce Urban Blight (SCRUB), Mary Cawley Tracy, Friends of Logan Square, Center City Residents Association (CCRA), Friends of FDR Park, Duncan Civic Association, Councilman David Cohen, Christopher Jurek, Jean Gavin and Phil Straus, Appellants
v.
Zoning Board of Adjustment, City of Philadelphia and Preston Ship & Rail, Inc.
Society Created to Reduce Urban Blight (SCRUB), Mary Cawley Tracy, Friends of Logan Square, Center City Residents Association (CCRA), Friends of FDR Park, Duncan Civic Association, Councilman David Cohen, Christopher Jurek, Jean Gavin and Phil Straus
v.
Zoning Board of Adjustment, City of Philadelphia and Preston Ship & Rail, Inc.
Appeal of: Preston Ship & Rail, Inc.
No. 2192 C.D. 2005.
Commonwealth Court of Pennsylvania.
Argued: June 7, 2006.
Filed: September 27, 2006.
BEFORE: COLINS, President Judge; McGINLEY, Judge; SMITH-RIBNER, Judge; FRIEDMAN, Judge; LEADBETTER, Judge; SIMPSON, Judge; LEAVITT, Judge.
OPINION BY JUDGE McGINLEY.
The Society Created to Reduce Urban Blight (SCRUB), et. al appeals from an order of the Court of Common Pleas of Philadelphia County (common pleas court) that affirmed the decision of the Philadelphia Zoning Board of Adjustment's (Board) grant of a variance to Preston Ship & Rail, Inc. (Preston) in order to erect five outdoor wrap around advertising signs (outdoor advertising signs) on a vacant building. Preston cross-appeals and contends that Section 1460(10) of the Philadelphia Zoning Code (Code) is unconstitutional. Additionally, Preston seeks to quash SCRUB's appeal to this Court and asserts that SCRUB lacks standing.
On July 23, 2003, Preston sought a registration permit from the Department of Licenses and Inspections (L&I) in order to erect five outdoor advertising signs on the grain building located on the property. Application For Use Registration Permit, July 23, 2003, at 1; Reproduced Record (R.R.) at A-289. On September 11, 2003, L&I issued a notice of refusal of permit and concluded that the outdoor advertising signs would violate numerous provisions of Section 14-1604 of the Code. Specifically, L&I specified the following violations: 1) that the outdoor advertising signs would be located within 500 feet of each other; 2) that only two outdoor advertising signs are permitted on any one lot with no more than one sign support structure; 3) that the outdoor advertising signs would total approximately 38,000 square feet; and 4) that the erection of each new outdoor advertising sign would require the removal of a previous sign.
On October 7, 2003, Preston appealed the refusal to the Board and alleged:
Preston . . . is the owner of the property located at 2600 Rear Penrose Ferry Road, Philadelphia, PA otherwise known as "Pier 3 at Girard Point" ("Property"). Applicant [Preston] proposes to use a building located on the Property which was formerly used as a grain elevator and tower ("Building") for the erection of outdoor advertising signs on the face of each side of the Building.
In order to accomplish this goal, Applicant [Preston] requests several variances from the requirements of the City of Philadelphia Zoning Code ("Zoning Code") for the erection of outdoor advertising signs. The Property is situate in a Least Restricted Industrial Zoning District. This zoning district permits outdoor advertising signs. However, Applicant [Preston] must obtain several variances from the provisions of the Zoning Code so as to avoid the unnecessary hardship presented in this case. In addition, the Zoning Code contains an unconstitutional Outdoor Advertising and Non-Accessory Advertising prerequisite for obtaining a permit for such use from which Applicant [Preston] also seeks relief. Applicant will demonstrate that the Property has several unique features and characteristics which justify the relief it seeks from the Zoning Code's requirements for outdoor advertising signs. . . .
The overall Property consists of a dilapidated pier . . . which is landlocked. Access to the Property is limited to an easement over an adjacent property. The Pier has collapsed in at least two major areas and was allowed to fall into disrepair by the former owner. The primary remaining structure on the Property is a grain elevator and tower, which is a massive reinforced concrete structure with no present or reasonably foreseeable use, is an eyesore, and for which the cost of demolition would be prohibitively expensive. . . .
The severe deterioration of the Pier with the old unusable structures on the Property, the nature of the surrounding area . . . represent conditions which are unique to this Property and are such to justify the requested relief whether the variances are classified as use or dimensional variances or both.
Application Of Preston Ship & Rail, Inc., October 7, 2003, at 1-2; R.R. at A-391-92. After a hearing, the Board granted Preston's request for a use variance and the common pleas court affirmed.[1] SCRUB appealed and Preston cross-appealed.[2]
I. Motion To Quash SCRUB's Appeal
Initially, Preston requests this Court to quash SCRUB's appeal based on lack of standing because none of the individuals are "aggrieved persons" as defined under Section 17.1 of the Home Rule Act, 53 P.S. §13131.1.[3] Preston acknowledges that Section 14-1806 of the Code does grant standing to "taxpayers" such as members of SCRUB. See Society Created to Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment of the City of Philadelphia (Procacci), 729 A.2d 117 (Pa. Cmwlth. 1999).[4] However, Preston asserts that under the newly enacted provisions of Act 193 SCRUB no longer has standing because it is not an "aggrieved person."
SCRUB counters that: 1) Preston conceded standing to SCRUB and other individuals at the Board's hearing; 2) Preston waived the standing issue because it did not appeal from the Board's decision regarding the standing issue; and 3) SCRUB has standing pursuant to Section 14-1806(1) of the Code which controlled the issue of standing before the Board and in the appeals to the common pleas court and this Court.
Section 14-1806(1) of the Code had provided that "[a]ny person or persons jointly or severally aggrieved by any decision of the Board or any taxpayer . . . may present to a Court of record a petition, duly verified, setting forth that such decision is illegal in whole or in part, specifying the ground for that illegality." (emphasis added).
Section 17.1 to the Home Rule Act, 53 P.S. § 13131.1, now provides:
Specific Powers
In addition to any aggrieved person, the governing body vested with legislative powers under any charter adopted pursuant to this act shall have standing to appeal any decision of a zoning hearing board or other board or commission created to regulate development within the city. As used in this section, the term "aggrieved persons" does not include taxpayers of the city that are not detrimentally harmed by the decision of the zoning hearing board or other board or commission created to regulate development. (emphasis added).
Initially, this Court notes that "[a] cause of action arises under Pennsylvania law when one can first maintain an action to a successful conclusion." Konidaris Portnoff Law Associates, LTD., 884 A.2d 348, 354 (Pa. Cmwlth. 2005), citing In re Schorr, 299 B.R. 97 (Bankr. W.D. Pa. 2003).
In Ieropoli v. AC&S Corporation, 577 Pa. 138, 842 A.2d 919 (2004)[5], our Pennsylvania Supreme Court addressed the issue whether subsequent legislation that extinguished a party's cause of action was unconstitutional:
[W]e begin with the meaning of the phrase `cause of action'. As we have stated in other cases, the phrase does not have a single definition, and means different things depending on context. . . . In this case, `cause of action' relates to remedy. It is the vehicle by which a person secures redress from another person for the consequences of an event that is a legal injury. . . . Moreover, as we have seen, a cause of action that has accrued takes on an even greater meaning. It is a vested right, which under Article 1, Section 11[6], may not be eliminated by subsequent legislation. . . .
In light of these principles, the violation of Article 1, Section 11 that the Statute's application occasions in this case is clear. Before the Statute's enactment, each cause of action that Appellants brought against Crow Cork was a remedy-it was the vehicle by which Appellants lawfully pursued redress, in the form of damages, from Crown Cork for an alleged legal injury. But under the Statute, Appellants cannot obligate Crown Cork to pay them damages on those causes of action. In this way, each cause of action has been stripped of its remedial significance, as it can no longer function as a means by which Appellants may secure redress from Crown Cork. As a remedy, each cause of action has been, in essence, extinguished. Under Article 1, Section 11, however, a statute may not extinguish a cause of action that has accrued. Therefore, as Appellants' causes of action accrued before the Statute was enacted, we hold that the Statute's application to Appellants' cause of action is unconstitutional under Article 1, Section 11. (emphasis added)
Ieropoli, 577 Pa. at 155-56, 842 A.2d at 929-30.
Here, this Court believes that the rationale enunciated by our Supreme Court in Ieropoli controls the present controversy.
Article 5, Section 9 of the Pennsylvania Constitution provides:
There shall be a right of appeal in all cases to a court of record from a court not of record; there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights as may be provided by law. (emphasis added).
In the present controversy, the following chronological dates are critical: 1) on July 23, 2003, Preston applied for a registration permit before the L&I; 2) on September 11, 2003, L&I denied Preston's request for a registration permit; 3) on October 7, 2003, Preston timely appealed the denial to the Board and hearings were held on November 12, 2003, and March 10, 2004, at which time SCRUB became a party; 4) on June 7, 2004, the Board granted a five-year temporary use certificate for the five outdoor advertising signs; 5) on June 25, 2004, SCRUB timely appealed to the common pleas court; 6) on November 30, 2004, the amendment to Section 17.1 of the Home Rule Act, 53 P.S. § 13131.1, took effect; 7) on September 26, 2005, the common pleas court affirmed the Board; and 8) on October 6, 2005, SCRUB appealed to this Court.
Like in Ieropoli, to allow the retroactive application of the amendment to Section 17.1 of the Home Rule Charter, 53 P.S. § 13131.1 would deprive SCRUB of its initial right of appeal from an adverse decision of the Board to the common pleas court and ultimately to this Court. This would clearly violate Article 5, Section 9 of the Pennsylvania Constitution.[7] As our Pennsylvania Supreme Court noted in Ieropoli:
Quoting from the Lewis [v. Pennsylvania R. Co., 220 Pa. 317, 69 A. 821, 823 (1908)] case, we stated:
'There is a vested right in an accrued cause of action. . . . A law can be repealed by the law giver; but the rights which have been acquired under it, while it was in force, do not thereby cease. It would be an absolute injustice to abolish with the law all the effects it had produced. This is a principle of general jurisprudence; but a right to be within its protection must be a vested right.' (emphasis added).
Ieropoli, 577 Pa. at 152, 842 A.2d at 927. Pursuant to our Supreme Court's rationale enunciated in Ieropoli and Lewis, this Court must deny Preston's motion.
II. SCRUB'S Appeal
At hearings held on November 12, 2003, and March 10, 2004, the following witnesses testified on behalf of Preston: Dan Perkowski (Perkowski), vice-president and director of marine projects; Robert Thomas (Thomas), an engineer; Vincent M. Carita (Carita), a civil engineer; and Kevin O'Connor (O'Connor), a traffic engineer.
Perkowski testified that Preston and its sister company, Carbon Services, Inc. (Carbon), were in the marine and recycling business. Notes of Testimony, November 12, 2003, (N.T. 11/12/03) at 14; R.R. at A-36. Perkowski continued that the pier was in severe disrepair, that Preston repaired a portion of the Pier, and that Preston now utilized about 180 feet of the 800 foot Pier. N.T. 11/12/03 at 33-36; R.R. at A-55-58. Preston desired to rehabilitate the entire pier to make it a viable bulk marine terminal. According to Perkowski, the money generated from the outdoor advertising was to be used to complete the repairs to the Pier and build a recycling center that would handle 100 tons of recycling material per day. N.T. 11/12/03 at 20-21; R.R. at A-42-43.
In addition to Perkowski's testimony, Michael Mattioni (Mattioni), attorney for Preston, recounted to the Board that the grain elevator building served no viable purpose:
Bob [Thomas, an engineer for Preston] came out . . . [and] [h]e couldn't find any use for the building. . . . Part of this is because the building is unique. It's a hollow building. As a grain elevator, it's a vertically hollow building, so you cannot use it for storage, you cannot use it for offices, you can't use it for apartments. . . .
In addition to this the building can't be used as a grain elevator. First of all, no grain comes through the port of Philadelphia anymore. On top of that, it's in a dilapidated condition. . . .
N.T. 11/12/03 at 7-7; R.R. at A-29-30.
Thomas opined that the only viable use of the Property was for outdoor advertising. N.T. 11/12/03 at 65; R.R. at A-87.
Carita testified it would cost 15 million dollars to rehabilitate the Pier. N.T. 11/12/03 at 70; R.R. at A-92. Although Carita never performed a structural analysis of the grain elevator building, he believed that the building would be able to bear the weight of the proposed outdoor advertising signs. N.T. at 75-76; R.R. at A-97-98.
O'Connor testified that the outdoor advertising signs would not pose a safety threat to motorists. N.T. 11/12/03 at 78; R.R. at A-100. Specifically, O'Connor stated that the grain elevator building was located on a remote area on the Property and the outdoor advertising signs would be 1600 feet from Penrose Avenue and the Platt Bridge and a quarter of a mile from I-95. N.T. 11/12/03 at 80; R.R. at A-102. O'Connor also testified that the outdoor advertising signs would have to be larger in order for motorist to observe them from those distances. N.T. 11/12/03 at 80; R.R. at A-102.
The following members of SCRUB testified: Gary Smith (Smith), an architect and urban planner; William Faust (Faust), member of the Center City Residents Association (CCRA); Jean Gavin (Gavin), member of the Fox Chase Home Owners Association; John Kline (Kline), vice-president of Duncan Civic Association; Mary Tracy (Tracy), executive director of SCRUB; and Councilperson David Cohen (Cohen) for City Council.
Smith testified that the Property was within the least restrictive industrial district and that "[v]irtually any industrial use, including egregious uses, those that none of us will want next door to us are allowed as of right over the counter in this site. . . ." Notes of Testimony, March 10, 2004, (N.T. 3/10/04) at 15 and 17; R.R. at A-123 and A-125. Smith continued that the Property was already productive and that "the concrete pipe and recycling for a reef process is currently the activity on the site." N.T. 3/10/04 at 17; R.R. at A-125.
Faust testified that CCRA opposed the outdoor advertising signs because "the size of the proposed wall wraps will be immense" and "[i]t would dominate views for miles . . . [f]or that very reason alone, the proposed uses are thus wholly incompatible with the direction that the City itself wants the Delaware River front to go." N.T. 3/10/04 at 90-91; R.R. at A-198-99.
Gavin testified that the proposed outdoor advertising signs "will be a real eyesore coming from the airport." N.T. 3/10/04 at 98; R.R. at A-206.
Tracy testified that "we have many buildings in the City of Philadelphia that are in need of repair, and to use the wallwraps as a vehicle for financing their reparation . . . sets a very dangerous precedent and it violates the code. . . ." N.T. 3/10/04 at 103-04; R.R. at A-211-2.
Lastly, Councilperson Cohen testified that City Council was concerned about the aesthetics of the City and the effect that existing signs were a problem. N.T. 3/10/04 at 132-34; R.R. at A-240-43.
The Board made the following pertinent finding of fact and conclusions of law:
26. A majority of the Zoning Board of Adjustment voted to grant the request for a use variance. On June 7, 2004, the Zoning Board of Adjustment issued a Notice of Decision granting a five (5) year temporary use certificate with the following provisos: must meet Fire Code as per proviso in letter from Mattioni Law Firm dated 5/18/04; all gross receipts from out-door advertising Preston Ship and Rail, Inc., to be used solely to pay for improvement to pier; erection of a fifth sign on top of building at owner's expense to welcome visitors to Philadelphia. (Notice of Decision, Calendar No. 03-1424).
CONCLUSIONS OF LAW
2. The Zoning Board of Adjustment shall consider a request for a variance pursuant to §14-802 of the Zoning Code.
. . . .
4. The Applicant [Preston] has met its burden of proof that an unnecessary hardship will result if the variance is not granted. The Applicant [Preston] has shown that the enforcement of the applicable zoning requirements would present a unique hardship to the subject property.
5. Applicant [Preston] has met its burden to demonstrate that the signs are not contrary to the public interest. The Zoning Board heard testimony that the signs are located in a remote least restricted commercial area; that there are no other viable uses for the property other than uses proposed by the owner; that the monies generated by the revenue from the billboards will be used to repair the pier; that the project underway to repair the pier will eventually generate new jobs in Philadelphia.
6. The proposed use meets the applicable requirements for granting a variance, and therefore, the Zoning Board of Adjustment grants the Applicant's [Preston's] request for a use variance, with provisos.
The Decision of the Board, June 7, 2004, Finding of Fact (F.F.) No. 26 and Conclusions of Law (C.L.) Nos. 2 and 4-6 at 8-9; R.R. at A-285-86.
On appeal, the common pleas court heard legal argument from the parties and affirmed:
There was substantial evidence presented to the Board that there were no viable uses for the property other than the uses proposed by the applicant [Preston]. The monies generated by revenue from the billboards would be used to repair the pier which will create new jobs in the City of Philadelphia. The Board concluded that the applicant [Preston] met its burden of proof that the signs are not contrary to the public interest. . . .
The Board's findings and conclusions of law were based upon substantial evidence that an unnecessary hardship would result if the variance was not granted. In addition, the evidence at the hearings established that the Board's grant of a variance would not be contrary to public interest. (citation omitted).
Opinion of the Common Pleas Court, September 26, 2005, at 4.
On appeal[8], SCRUB contends that the Board abused its discretion when it granted the variances because there was a lack of substantial evidence to support a claim of hardship and that the signs were not contrary to public interest.
In Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983), our Pennsylvania Supreme Court enunciated the criteria necessary to establish a variance:
The standards governing the grant of a variance are equally well settled. The reasons for granting a variance must be substantial, serious and compelling. . . . The party seeking a variance bears the burden of proving that (1) unnecessary hardship will result if the variance is denied, and (2) the proposed use will not be contrary to the public interest. . . . The hardship must be shown to be unique or peculiar to the property as distinguished from a hardship arising from the impact of zoning regulations on the entire district. . . . Moreover, mere evidence that the zoned use is less financially rewarding than the proposed use is insufficient to justify a variance. . . . In evaluating hardship the use of adjacent and surrounding land is unquestionably relevant. . . .
. . . .
. . . It is the function of the zoning board to determine whether the evidence satisfies that test and the courts will not disturb that determination unless it is not supported by substantial evidence, i.e., such evidence as a reasonable mind might accept as adequate to support a conclusion. (citations omitted and emphasis added).
Id. at 555-57, 559, 462 A.2d at 640-42.
A. Hardship
In the present controversy, Perkowski testified that the Property was currently being used to load concrete pipe onto barges. N.T. 11/12/03 at 19; R.R. at A-41. Perkowski stated that Preston was waiting approval from the Department of Environmental Protection so that it could begin a tire recycling business. N.T. 11/12/03 at 19; R.R. at A-41. Perkowski stated that Preston intended to recycle more than 100 tons of tires each day. N.T. 11/12/03 at 30; R.R. at A-52. Also, the tires would be used to build marine reefs in the ocean. N.T. 11/12/03 at 27; R.R. at A-49. Critically, the undisputed evidence established that the revenues generated by the outdoor advertising signs were to be used exclusively to rehabilitate the Pier. Here, Preston failed to establish an unnecessary hardship in the present matter and the Board's finding to the contrary was error. "Typically, the loss of rental income from disallowed outdoor advertising signs is not an unnecessary hardship." Society Created To Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment, 831 A.2d 1255, 1262 (Pa. Cmwlth. 2003).
B. The Public Interest
SCRUB next contends that the proposed outdoor advertising signs failed to satisfy the public interest criteria.
Section 14-1604 (Outdoor advertising and non-accessory advertising controls) of the Code provides:
(1) Legislative Findings. The Council finds that:
(a) Existing zoning controls have done little to prevent the City-wide proliferation of commercial outdoor advertising signs.
(b) The excessive number of commercial outdoor advertising signs contribute to visual clutter and detract from the aesthetic beauty of the City of Philadelphia.
. . . .
(f) The proliferation of commercial outdoor advertising signs contribute to the appearance of deterioration of commercial and industrial areas of the City and therefore negatively impact upon the economic viability of these areas.
(g) Said signs jeopardize public safety by distracting pedestrians and to a greater extent passing motorists, since these signs by their nature are erected in areas intended to be seen by drivers of motor vehicles.
. . . .
(i) Regulation and removal of these signs will enhance the aesthetic beauty of the City of Philadelphia by promoting signs which are harmonious with the streetscape and by eliminating signs which dominate or obscure views of the City.
(j) Regulation and removal of these signs will protect public and private investment, promote economic development and commercial revitalization.
(k) There are few, if any, circumstances under which the prohibition of these signs will render property valueless, result in unnecessary hardship or otherwise meet the criteria for a variance stated in §14-1802.
Also, Paula Brumbelow (Brumbelow), of the Planning Commission, testified that the proposed outdoor advertising signs violated various subsections of Section 14-1604 of the Code:
One, this application is not a minor departure from the requirements of the Zoning Code. We believe there are at least 26 different provisions of the Zoning Code . . . including, A, five support structures are proposed while only one support structure is permitted per lot; B, the proposed signs exceed the maximum allowable sign area of 1,500 square feet per sign support structure, a condition which is prohibited; C, this application proposes more than two sign faces on any one lot, a condition that is prohibited; D, the proposed signs are all located within 500 feet of each other, a condition which is prohibited; E, all of the proposed signs extend more than 20 feet in height above their bottom edge, a condition which is prohibited; F, there is no provision for the removal of existing signs which encompass equal sign area, a condition which is prohibited. . . .
N.T. 3/10/04 at 154-55; R.R. at A-262-63.[9]
Again, there is a lack of substantial evidence of record to support the Board's conclusion and the common pleas court's affirmance that the five proposed outdoor advertising signs were not contrary to the public interest.
III. Preston's Appeal
Preston contends that Section 14-1604(10) of the Code is unconstitutional because it is tantamount to exclusionary zoning that prevents Preston from using the Property for an otherwise expressly permitted non-accessory outdoor advertising use.
Section 14-1604(10) of the Code provides:
(a) For each outdoor advertising and non-accessory sign erected in conformance with these provisions, an existing sign or signs encompassing equal or greater sign area shall be removed (emphasis added);
(b) The application to erect an outdoor advertising or non-accessory sign must specify the size and location of the sign(s) to be removed. Sufficient proof of the physical existence of the sign(s) to be removed shall be supplied to the Department of Licenses and Inspections. Such proof may be in the form of permits and/or photographs of the existing sign(s) (emphasis add);
(c) The application to erect an outdoor advertising or non-accessory sign must also be accompanied by a written authorization from the owner of the property where the sign(s) to be removed are located authorizing the applicant to remove said sign(s) and acknowledging that the right to maintain an outdoor advertising or non-accessory sign is being forfeited through the filing of the application and the issuance of the permit for the erection of the new sign (emphasis added);
(d) No permit for the erection of an outdoor advertising or non-accessory sign shall be issued prior to actual removal of the sign(s) required to be removed as provided in subsections 10(a), (b) and (c) above. (emphasis added).
Initially, in Baker v. Upper Southampton Township Zoning Hearing Board, 830 A.2d 600, 604-06 (Pa. Cmwlth. 2003), this Court noted:
A zoning ordinance is presumptively constitutional. . . . Before a reviewing tribunal may declare a zoning ordinance unconstitutional, the challenging party must clearly establish that the provisions of the ordinance are arbitrary and unreasonable. . . . A legislative enactment can be declared void only when it violates the fundamental law clearly, palpably, plainly and in such a manner as to leave no doubt or hesitation in the mind of the court. . . . An ordinance will be found unreasonable and not substantially related to the police power purpose if it is shown to be unduly restrictive or exclusionary. . . . When reviewing an ordinance to determine its validity, courts must generally employ a "substantial due process inquiry, involving a balance of landowners' rights against the public interest sought to be protected by an exercise of the police power". . . . (citations omitted and emphasis added).
Id. at 604-05.
A. De Jure Exclusionary Challenge
"In a de jure challenge, the landowner alleges that the ordinance totally excludes a proposed use." Polay v. Board of Supervisors of West Vincent Township, 752 A.2d 434, 437 n. 7 (Pa. Cmwlth.), appeal denied, 568 Pa. 673, 795 A.2d 982 (2000). "[A] de jure exclusion exists where the ordinance on its face totally excludes a proposed use." Baker, 830 A.2d at 605.
When a challenger has satisfied its burden of proving that an ordinance is de jure exclusionary, the burden then shifts to the municipality to establish that the exclusion is for the public's health, safety, morals, and general welfare. . . . The constitutionality of a zoning ordinance that totally excludes a legitimate use must bear a more substantial relationship to a stated public purpose than a regulation that merely confines a use to a certain zoning district. (citations omitted and emphasis in original and added).
Id. at 606.
A review of the record establishes that Section 14-1604(10) of the Code is not de jure exclusionary. There was no dispute that there were thousands of outdoor advertising signs located throughout the City. Therefore, there was no total exclusion of outdoor advertising signs provided they complied with the sign ordinance. In addition, Preston was unable to introduce any evidence at the Board hearing that Section 14-1604(10) of the Code precluded other sign providers from erecting outdoor advertising signs where appropriately zoned. Therefore, this Court must conclude that Section 14-1604(10) of the Code is not de jure exclusionary.
B. De Facto Exclusionary Challenge
Preston asserts that the sign removal requirement under Section 14-1604(10) of the Code is de facto exclusionary because in order to comply with this section the owner must already have an existing sign on the property for removal in order to erect a new sign. Preston asserts that this "removal requirement discriminates against newcomers in a district which otherwise allows the use." See Brief of Appellee Preston Ship & Rail, Inc. at 59.
In a "de facto challenge . . . the landowner alleges that the ordinance on its face permits the proposed use, but does so under such conditions that the use cannot in fact be accomplished." Centre Lime and Stone Co, Inc. v. Spring Township Board of Supervisors, 787 A.2d 1105, 1111 (Pa. Cmwlth. 2001).
Essentially, Preston's argument is that it was precluded from removing an existing sign in order to erect a new sign only because Preston was not in the sign business. This is not a "de facto exclusionary argument." As established at the hearing, the Property was located in the least restricted industrial area (LR Industrial District) and outdoor advertising signs were a permitted use. Although Preston claims that it was prevented from complying with the sign removal requirement of Section 14-1604(10) of the Code, Preston ignores the undisputed fact that the five proposed outdoor advertising signs clearly violated numerous provisions of Section 14-1460 of the Code. Actually, the only evidence to support Preston's quest to erect the five proposed outdoor advertising signs was the generation of additional revenues for the rehabilitation of the Pier. Again, this Court must conclude that Preston failed to sustain its burden to prove that Section 14-1604(10) of the Code was de facto exclusionary.
Accordingly, this Court denies Preston's motion to quash SCRUB's appeal and reverses the common pleas court's denial of SCRUB's appeal. Also, this Court denies Preston's cross-appeal.
ORDER
AND NOW, this 27th day of September, 2006, the motion to quash the appeal of the Society Created to Reduce Urban Blight (SCRUB), et al. filed by Preston Ship & Rail, Inc. in 2099 C.D. 2005 is denied. The order of the court of common pleas court's denial of SCRUB's appeal is reversed and the cross-appeal filed by Preston Ship & Rail, Inc. at 2192 C.D. 2005 is denied.
DISSENTING OPINION BY PRESIDENT JUDGE COLINS
I respectfully dissent. I fear the majority has allowed the esthetic unpleasantness of billboard clutter to cloud its legal judgment. Section 17.1 of the law known as the First Class City Home Rule Act,[1] 53 P.S. §13131.1 (Act 193), clearly states that city taxpayers that are not detrimentally harmed by a decision of the zoning hearing board are not aggrieved persons for purposes of appeal. The Pennsylvania Constitution does not guarantee continued standing once the General Assembly has spoken. Act 193 makes it clear that taxpayers who are not individually harmed by a zoning decision do not fall within the definition of aggrieved persons. I would grant Preston Ship & Rail's motion to quash as the taxpayers no longer have standing to appeal.
Judge Leadbetter joins in this dissent.
NOTES
[1] On January 21, 2005, Preston filed a motion to quash the appeal before the common pleas court and submitted a similar argument. On April 5, 2005, the common pleas court denied the motion to quash and affirmed the decision of the Board.
[2] By order dated November 1, 2005, this Court consolidated the appeals.
[3] Section 17.1 of the Home Rule Charter Act was added by the Act of November 30, 2004, P.L. 1523, No. 193.
[4] This Court notes that pursuant to the Pennsylvania Municipalities Planning Code (MPC), Act of June 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202 standing to challenge a variance was limited to a person affected by the variance application. In this situation an "aggrieved person" is usually a property owner who resided within the vicinity of the requested variance. However, the MPC does not apply to Philadelphia.
[5] The facts in Ieropoli as recounted by this Court in Konidaris are:
The case involved a statute which limited asbestos-related liabilities of corporations that arose out of mergers or consolidations. The statute expressly applied to pending lawsuits. A machinist with a pending asbestos suit challenged the constitutionality of the statute, which had the effect of shielding one of the defendants from liability. On appeal from the trial court's dismissal of the defendant, the Supreme Court reversed. It held that under the Remedies Clause, a cause of action that has accrued is a vested right which may not be eliminated by subsequent legislation.
Konidaris, 884 A.2d at 353.
[6] Article 1, Section 11 of the Pennsylvania Constitution provides:
All courts shall be open; and every man for an injury done in his land, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.
[7] Again, this Court must reiterate that we are not declaring Act 193 unconstitutional but only "that the Statute as applied in this case is unconstitutional under" Article 5, Section 9 of the Pennsylvania Constitution. See Ieropoli, 577 Pa. at 159, 842 A.2 at 932.
[8] This Court's review, where as here, the common pleas court did not take additional testimony is limited to determining whether the Board committed an error of law or an abuse of discretion. Gall v. Zoning Hearing Board of Upper Milford Township, 723 A.2d 758 (Pa. Cmwlth.), petition for allowance of appeal denied, 559 Pa. 682, 739 A.2d 545 (1999).
[9] Specifically, the following Sections of the Code are applicable: Section 14-1604(3) of the Code prohibits outdoor advertising and non-accessory signs "within five hundred feet of any other outdoor advertising sign"; Section 14-1604(7) of the Code provides that "[n]o more than two (2) sign faces or advertising messages shall be permitted on any one (1) lot; provided, that no more than one (1) sign support structure shall be permitted on any lot"; Section 14-1604(5)(b) of the Code limits maximum sign area to 1,500 square feet for frontages along a street 60 feet wide or wider; and Section 14-1604(10) of the Code requires that an existing sign or signs of equal or greater sign area be removed for each outdoor advertising and non-accessory sign erected.
[1] Act of April 21, 1949, P.L. 665, as amended, added by Section 2 of the Act of November 30, 2004, P.L. 1523. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304599/ | SWEPSTON, J.
These two suits were tried together to a jury. There was a peremptory instruction in favor of defendant Wood and wife at the close of all the evidence. Plaintiffs’ motions for new trial were seasonably made and overruled and they have appealed and assigned error.
We shall refer to the several parties herein as plaintiff and defendant.
*347The question posed by the second assignment is in our opinion determinative of the case. It is that the trial judge was in error in directing a verdict for defendant on the ground that the undisputed evidence showed that the ambulance belonging to defendant was not being used at the time of the accident on the business of the master.
In reviewing the evidence for the purpose of this assignment we are bound to take as true all evidence and reasonable inferences therefrom as are favorable to plaintiff giving it the strongest legitimate effect to uphold the verdict and discarding all countervailing evidence and inferences therefrom.
McConnell v. Jones, Tenn. App., 228 S. W. (2d) 117.
The accident occurred August 4, 1948 about 9:30 at night at the intersection of Cleveland Street and Union Avenue, Memphis, when the ambulance of defendant collided with an automobile being driven by one of the plaintiffs and occupied by the other plaintiff.
There was evidence tending to show' the following:
Defendant is a resident of the State of Alabama and never lived in Memphis and at all times since he acquired an undertaking business in Memphis a year or so before the accident he had the business in charge of a local manager and visited here about once a month.
Bussell Kauerz had been an employee prior to July 1948, at which time he became manager, succeeding one Shoeffner, and was the manager during the period of this accident.
Defendant left the operation of the business to the manager.
About 9:00 on the evening of the accident a telephone call for an ambulance came in.
There is circumstantial evidence that the manager authorized one Tierce, a regular employee to answer the *348call and to take with him as an assistant a casual visitor, Blann; two men are required to handle a stretcher; it was a customary part of the manager’s duties to go with the ambulance but he remained at the office.
The business was located at 972 Popular Avenue. The call came from a Negro section about two miles northwest of the office. When the ambulance arrived at the place of call they found that the injured person, a Negro, had already been taken away. Instead of returning at once by a reasonably direct route to the office, these men started off to get some barbecue sandwiches for themselves and for the manager’s family; the testimony is that there had been discussion of this at the funeral parlor with the manager before the ambulance went out. The manager and his family lived upstairs and had several visitors at the time.
Tierce drove eastward past the vicinity of the office when he became confused and lost his bearings, so at the request of Tierce the other man, Blann, took the wheel. These two had been discussing the food question as they drove along and it was agreed they would drive to Leonard’s stand which is located several miles south and east of the funeral parlor.
Blann took over and met with the accident at a point' several blocks south and east of the office, before reaching the barbecue stand.
The evidence further is that Tierce was on duty twenty-four hours a day but no living quarters nor eating facilities were provided for him; that he usually obtained his meals in the daytime within a block of the office and that his wife brought him food at night; that employees could eat wherever they desired; that Tierce had never used the ambulance to go for meals or food, *349but that be bad known of other employees doing so; that kitchen facilities were provided for the manager and bis family along with living quarters in the bnilding where the funeral parlor was operated.
The trial judge was of opinion that this evidence showed that the ambulance was not being operated on the business of the defendant.
We hold the same view.
The general rule is that the owner of a motor vehicle is not liable under respondeat superior for the acts of another who is driving it, unless it is being used on the business of the owner; and likewise when initially it was being used on the business of the owner, but at the time of the accident the servant or agent has turned aside from or abandoned the affairs of the owner and is using entirely for his own business or pleasure. 60 C. J. S., Motor Vehicles, Section 437, p. 1093.
The general rule as applied to the specific subject of the servant’s use of the master’s vehicle in going to and from meals, or to and from home and work, is variously phrased in the following texts in addition to the above: 42 C. J. 1108, sec. 868; 5 Am. Jur. 718, sec. 379 & sup. pp. 109-110; Restatement of Agency, Vol. I, sec. 229(d).
The gist of the matter is that the solution of the problem depends on the facts and circumstances of each case and unless there is some fact or circumstance indicating a benefit to the owner, the use is regarded as being for the personal benefit of the servant alone, in which event the master is not liable for the acts of the servant; if the facts indicate, however, that the use of the vehicle enables the servant to arrive earlier or remain longer at his work, or to shorten the time of *350Ms absence for meals or a particular meal, or the deviation for that purpose was slight, or that the use of the vehicle for such purpose is part of the contract or is customarily furnished, or any other special fact or facts from which a benefit to the master may be inferred, then the court or jury may find it to be within the scope of employment.
Ely et al. v. Rice Bros. et al., 26 Tenn. App. 19, 167 S. W. (2d) 355 (master obligated by contract to provide car and gasoline); Hall Grocery Co. v. Wall., 13 Tenn. App. 203 (driver to knowledge of owner customarily drove truck home at night) Desoto Garage Operating Co. v. J. Thomas Wellford, admstr., unreported Tenn. App. July 12, 1924 (night manager in sale charge sent company pickup servant for part for manager’s car in the usual course of business and keeping of car in repair for use by manager in going to and from work was admitted by master to be beneficial to business.) Barker v. Elder, 20 Tenn. App. 251, 97 S. W. (2d) 654 (going for a meal held not beneficial to master.)
In the instant case it is contended that since Tierce was on twenty-four hour duty and no eating facilities were provided at the place of business, the jury could infer a benefit to the master in the saving of time by using the ambulance to go for food and return quickly to answer ambulance calls.
It seems an obvious answer is that Tierce had never found it necessary or desirable previously to so use the ambulance; he said he ate his regular meals within a block away and his wife brought him food at night; this was a single occasion and long past regular mealtime for him and all the others.
There is no evidence whatever to indicate that he or the manager expressed or indicated in any manner that *351any effort was made or desired to save time or expedite his return; had there been, time would have beehi saved by his stopping on the proper return route, or by going to his usual place within the block instead of starting out to a stand several miles away; and as concerns the manager and his family, they had kitchen facilities in the building housing the business.
We overrule the assignment.
Since this is determinative of the whole case, it is unnecessary to discuss the other secondary questions raised.
The judgment below is affirmed and costs are taxed against plaintiffs.
Anderson, P. J., and Baptist, J., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2304515/ | 958 A.2d 1048 (2008)
WHITEHOUSE
v.
WHITEHOUSE.
No. 263 WAL (2008).
Supreme Court of Pennsylvania.
October 7, 2008.
Disposition of petition for allowance of appeal. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922302/ | 756 A.2d 702 (2000)
GALLAGHER BASSETT SERVICES, Petitioner,
v.
WORKERS' COMPENSATION APPEAL BOARD (BUREAU OF WORKERS' COMPENSATION), Respondent.
Commonwealth Court of Pennsylvania.
Argued April 13, 2000.
Decided June 23, 2000.
Reargument Denied August 24, 2000.
*703 Sharon J. McGrail-Szabo, Allentown, for petitioner.
Shelley M. Jones, Harrisburg, for respondent.
Before SMITH, Judge, KELLEY, Judge, and McCLOSKEY, Senior Judge.
SMITH, Judge.
Gallagher Bassett Services (Gallagher) appeals from an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of Workers' Compensation Judge Thomas J. Hines (WCJ Hines) denying Gallagher's request for reimbursement from the Supersedeas Fund. The question presented is whether the Board erred, under the circumstances of this case, in affirming WCJ Hines' decision in which he concluded that there was no final outcome in the underlying termination proceedings in which Workers' Compensation Judge Joseph B. Sebastianelli (WCJ Sebastianelli) determined that compensation was not in fact payable to the claimant. WCJ Sebastianelli's decision to grant a termination of compensation was based upon a stipulation between the parties that Claimant Thomas Barker had fully recovered from his work injury and that benefits were terminable as of a certain date.
I
Barker suffered a herniated nucleus pulposus and lumbar myleopathy in the course of his employment with Air Products and Chemicals, Inc. (Employer) on March 16, 1993. Barker was granted workers' compensation benefits pursuant to a decision circulated by WCJ Sebastianelli on December 14, 1994. On February *704 28, 1997, Employer filed a termination petition through Gallagher, its workers' compensation insurer, alleging that Barker was fully recovered from his work injury. The termination petition also requested supersedeas. At an April 25, 1997 hearing before WCJ Sebastianelli, Barker's counsel stated that his client did not oppose the termination petition.
WCJ Sebastianelli gave the parties 30 days to submit a stipulation, and he stated that he would issue an order granting the supersedeas as of that day. The WCJ also accepted evidence from Gallagher, including the medical report of Dr. Eugene DiSalvo, which was entered into the record without opposition. Thereafter the parties executed a stipulation of facts indicating that Barker had fully recovered. Despite WCJ Sebastianelli's statement at the April 1997 hearing that he would grant supersedeas as of that date, no written order granting supersedeas was issued. Accordingly, Gallagher's supersedeas request was deemed denied from the date it was filed by operation of 34 Pa.Code § 131.43.[1] On July 3, 1997, WCJ Sebastianelli circulated a decision which adopted the parties' stipulation and terminated Barker's benefits as of February 5, 1997 based upon the stipulation.
On August 6, 1997, Gallagher filed a Supersedeas Fund reimbursement application seeking $6,840.00 for overpayment of compensation through July 3, 1997. The Department of Labor and Industry, Bureau of Workers' Compensation (Bureau) filed an answer to the application denying Gallagher's entitlement to reimbursement because the termination petition was resolved by a stipulation of facts instead of by an arm's-length determination. WCJ Hines issued a decision on August 7, 1998 denying Gallagher's application because there was no final outcome in which it was determined that compensation was not, in fact, payable. The Board affirmed the decision of WCJ Hines on the grounds that the termination proceeding was not an arm's-length determination. The Board believed that it was compelled to reach that result by controlling case precedent, but in doing so the Board stated that it found the result insulting to the ideal of judicial economy.[2]
II
A party seeking reimbursement from the Supersedeas Fund must establish the following five criteria:
1. A supersedeas must have been requested;
2. The request for supersedeas must have been denied;
3. The request must have been made in a proceeding under Section 413 of the [Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 771-774.1.3.]
4. Payments were continued because of the order denying supersedeas; and
5. In the final outcome of the proceedings `it is determined that such compensation was not, in fact, payable.'
Bureau of Workers' Compensation v. Workmen's Compensation Appeal Board (Insurance Company of North America), 101 Pa.Cmwlth. 552, 555, 516 A.2d 1318, 1320 (1986); Section 443(a) of the Act, 77 P.S. § 999(a).[3] The issue in this case is *705 whether Gallagher has satisfied the fifth criterion.
The Bureau argues that WCJ Sebastianelli's July 3, 1997 decision granting Employer's termination petition was not a final outcome of the proceedings because the WCJ adopted the parties' stipulation as the basis for terminating benefits. As support for its position, the Bureau relies upon this Court's decisions in Bureau of Workers' Compensation v. Workers' Compensation Appeal Board (Bethlehem Steel Corp.), 723 A.2d 1061 (Pa.Cmwlth.1998), Bureau of Workers' Compensation v. Workmen's Compensation Appeal Board (Old Republic Insurance Company), 689 A.2d 372 (Pa.Cmwlth.1997) (Old Republic II), and Bureau of Workers' Compensation v. Workmen's Compensation Appeal Board (Old Republic Insurance Company), 685 A.2d 224 (Pa.Cmwlth.1996) (Old Republic I).
The cases cited by the Bureau applied the Court's most oft-cited decision in this area of workers' compensation law: Insurance Company of North America. However, that decision does not support the proposition that an insurer may never recover reimbursement from the Supersedeas Fund when the final outcome of predicate proceedings results in a WCJ's decision based upon a stipulation or an agreement between the parties. The insurer in Insurance Company of North America filed a December 29, 1981 petition to suspend the claimant's benefits as of December 7, 1981. In April 1983 the claimant's counsel directed a letter to the referee stating that the claimant agreed to a finding in favor of the insurer as of the date of a hearing scheduled for that month. The sole evidence presented at the hearing was a statement from the claimant's treating physician indicating that the claimant was able to return to work as of February 21, 1983. Nevertheless, the referee entered an order granting suspension as of December 7, 1981. The Board thereafter granted the insurer Supersedeas Fund reimbursement for payments made since December 29, 1981.
The Court first determined in Insurance Company of North America that the Bureau could challenge the validity of the referee's order because the outcome of the suspension proceedings had been reached through an agreement of parties other than the Bureau with no opportunity for the Bureau to participate or to be heard. The Court next considered the referee's order in the suspension proceedings and concluded that there was no support in the record for suspending the claimant's benefits from December 7, 1981. The sole evidence in the record supporting suspension was the statement from the claimant's physician indicating that she could return to work as of February 21, 1983. Because this evidence supported a "true underlying decision on which the claim against the Fund could properly be predicated," id., 516 A.2d at 1323, the Court accordingly modified the Board's award and allowed reimbursement from the Supersedeas Fund, but only for payments made after February 21, 1983.
Thus the Court allowed the insurer to recover reimbursement in Insurance Company of North America to the extent that the evidence of record supported a true underlying decision on which the claim could be predicated. Moreover, that result is dictated by common sense and sound public policy. The law favors the settlement of disputes, Truck Terminal Motels of America, Inc. v. Berks County Board of Assessment Appeals, 127 Pa. Cmwlth. 408, 561 A.2d 1305 (1989), and there exists a strong public policy to minimize needless litigation, Darien Capital Management, Inc. v. Public School Employes' Retirement System, 549 Pa. 1, 700 *706 A.2d 395 (1997). A rule of law that bars recovery from the Supersedeas Fund whenever workers' compensation proceedings are resolved by a stipulation of parties would require insurers either to forfeit reimbursement or to needlessly litigate cases where the claimant concedes the merits of the underlying termination petition.
The Court has explained that Insurance Company of North America merely carved out an exception to the general rule that in reimbursement proceedings the Bureau may not collaterally attack the predicate decision that compensation was not, in fact, payable. Bureau of Workers' Compensation v. Workmen's Compensation Appeal Board (Liberty Mutual Insurance Co.), 113 Pa.Cmwlth. 607, 538 A.2d 587 (1988). A WCJ's decision that is based entirely upon a stipulation or upon an agreement of the parties and which is not supported by evidence in the record does not constitute a final outcome in an adversarial proceeding that can support reimbursement from the Supersedeas Fund. Bethlehem Steel; Old Republic II; Old Republic I. In this event, the Bureau may attack such a decision on grounds that it is not supported by evidence in the record. Liberty Mutual Insurance Co.
The Board states in its opinion that the Court ruled in Bethlehem Steel that "despite an employer's evidence of a doctor's opinion that claimant was fully recovered, providing a basis of the stipulation of the parties and supporting the WCJ's termination, this evidence does not convert a non-adversarial proceeding into an adversarial one." Board's opinion, p. 5. To the contrary, the parties in Bethlehem Steel "submitted to the WCJ stipulated findings of fact and conclusions of law, along with a proposed order stating that based upon the opinion of Employer's medical expert, Claimant's work injury had resolved...." Bethlehem Steel, 723 A.2d at 1062. There is no indication that the opinion of the employer's medical expert was entered into evidence before the WCJ, made a part of the record or otherwise considered by the WCJ independently of the parties' stipulation. The Court clearly followed in Bethlehem Steel the rule of law announced in Insurance Company of North America, but because the evidence of record did not support a true underlying decision on which the insurer's claim could be predicated, Bethlehem Steel reached a contrary result based upon the facts in that case.
The certified record in this case contains the expert medical testimony of Dr. DiSalvo. However, because the Board misapplied this Court's decision in Bethlehem Steel, the Board never reached the issue of whether the evidence of record supported the termination of Barker's benefits. See Insurance Company of North America. Accordingly, the decision of the Board is vacated, and this matter is remanded to the Board for a determination of whether the record supports the termination of Barker's benefits independently of the parties' stipulation. If it does, the Board shall enter an award of reimbursement to Gallagher for the overpayment of compensation to Barker.[4]
ORDER
AND NOW, this 23rd day of June, 2000, the order of the Workers' Compensation Appeal Board is hereby vacated, and this case is remanded to the Board consistent with the foregoing opinion.
Jurisdiction is relinquished.
NOTES
[1] Section 131.43 provides:
The referee hearing the request for supersedeas shall, within 14 days of the hearing, issue a written decision on the request for supersedeas, if granted. Unless a supersedeas is granted by written order, it will be deemed denied from the date of filing of the request.
[2] This Court's review of the Board's decision is limited to determining whether necessary findings of fact are supported by substantial evidence on the record as a whole, whether an error of law was committed or whether constitutional rights were violated. Russell v. Workmen's Compensation Appeal Board (Volkswagen of America), 121 Pa.Cmwlth. 436, 550 A.2d 1364 (1988).
[3] Section 443(a) provides in relevant part:
If, in any case in which a supersedeas has been requested and denied under the provisions of section 413 or section 430, payments of compensation are made as a result thereof and upon the final outcome of the proceedings, it is determined that such compensation was not, in fact, payable, the insurer who has made such payments shall be reimbursed therefor. ....
[4] The Bureau's request for an award of attorney's fees pursuant to Pa. R.A.P. 2744 is denied. Because the Court concludes that the Board erred, the Court cannot conclude that Gallagher's appeal was frivolous or taken solely for delay. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600317/ | 571 So.2d 1267 (1990)
STATE
v.
Thomas Geary GRAHAM, alias.
7 Div. 362.
Court of Criminal Appeals of Alabama.
April 12, 1990.
Don Siegelman, Atty. Gen., and Venessa Campbell, Asst. Atty. Gen., for the State.
Gary L. Phillips, Gadsden, for Thomas Geary Graham.
TYSON, Judge.
The State of Alabama appeals following a hearing before the circuit court on the appellee's motion to suppress a search warrant pursuant to which his residence had been searched.
Only one issue arises from the hearing in circuit court. Pursuant to the appellee's motion, the circuit court granted the appellee's motion to suppress the search warrant at issue, hereafter quoted, and ordered that the marijuana seized at the appellee's home as a result of the search be suppressed.
We are of the opinion that the trial court erred in so doing.
I
The search warrant at issue in this cause reads as follows:
"SEARCH WARRANT
"STATE OF ALABAMA
"ETOWAH COUNTY
*1268 "TO THE SHERIFF OR ANY CONSTABLE OF ETOWAH COUNTY, ALABAMA OR TO ANY OTHER LAWFUL OFFICER OF THE STATE OF ALABAMA AUTHORIZED TO SERVE THIS WARRANT:
"Proof by sworn affidavit having been made before me on this day by Hugh Cox that he (she) has probable cause for believing and does believe that Marijuana is being held, kept or stored at 245 Russell St., Gadsden, AL and all outside buildings or vehicles located at this address and that said property (Check Applicable Block)
". . . .
". . . .
"[x] is on said premises in the possession of a person or persons with intent to use it as a means of committing a public offense, to-wit: (Fully Describe Offense) 20-2-70 of the Alabama Controlled Substance[s] Act.
". . . .
"Contrary to the Laws of the State of Alabama.
"NOW, THEREFORE, by virtue of the authority given to me by Chapter 5, Title 15 CODE OF ALABAMA 1975, you are commanded ..., "[x] AT ANY TIME OF THE DAY OR NIGHT to make a search of the following described premises in Etowah Co., Alabama, to-wit: 245 Russell Street, Gadsden, Al and all outside buildings and vehicles located at this address for the following personal property, to-wit: Marijuana, and if you find the same, or any part thereof, to bring it forthwith before me at my office in ______, Alabama.
"ISSUED at 10:20 o'clock P.M. on this the 15th day of Jan., 1988.
"/s/ William H. Reah, III
"Judge of the Circuit Court
"of Etowah County, Alabama."
The issue is essentially a very simple one: namely, whether the failure to correctly give the street number in the address in the search warrant is of such a material variance as to make the warrant itself invalid and, therefore, to require that the evidence seized under it be suppressed. The sole issue is whether the description of the appellee's residence as 245 Russell Street, Gadsden, Alabama, when, in fact, the address was 243 Russell Street, Gadsden, Alabama, is such a material variance as to invalidate the warrant, or is only a "clerical error", which would not require that the warrant be declared invalid.
We have read the record and the testimony in this cause. We determine that the trial court's reliance on this court's opinion in Finch v. State, 479 So.2d 1314 (Ala. Crim.App.1985), was misplaced. It is true that the police officer in Finch misidentified the street address at issue by describing it in the warrant as 317 West Watts Street, Enterprise, Alabama, when, in fact, he searched 313 West Watts Street, Enterprise, Alabama. However, the facts of Finch and those of the instant cause are readily distinguishable. In Finch, the officer was not familar, as the officer in the present case was, with the actual residence of the defendant whose home was searched. There was another home located at 317 West Watts Street when the search took place at 313 West Watts Street.
In the case at bar, there was no house whatever at 245 Russell Street, Gadsden, Alabama, and, in fact, the appellee resided at 243 Russell Street and produced evidence to establish this at trial. This included a warranty deed, mail which had been sent to him at this address, a photograph showing the number 243 on the mailbox in front of the residence, and an engineer's survey designating that the correct street address was 243 Russell Street.
As herein noted, we are of the opinion that the trial court placed too narrow a view on the facts of the case and suppressed the warrant, relying primarily on Finch as aforesaid.
We are of the opinion that here the arresting officer could clearly determine the location sought to be searched from the face of the warrant. See Neugent v. State, 340 So.2d 55 (Ala.Crim.App.), cert. denied, 340 So.2d 60 (Ala.1976). Luster v. State, 433 So.2d 481 (Ala.Crim.App.), cert. denied (Ala.1983).
*1269 We are also of the opinion that this court's recent opinion in Helton v. State, 549 So.2d 589 (Ala.Crim.App.1989), which in turn quotes and relies upon the opinion of the Court of Appeals for the Eighth Circuit in Lyons v. Robinson, 783 F.2d 737 (8th Cir.1985), sets forth the proper test to be applied. There was in Helton a similar misstatement of the street address. We believe this to be a common clerical error, being two digits off. In fact, as the testimony showed, there was no residence at 245 Russell Street in Gadsden. The executing officer, Detective Cox, had been to the defendant's house and knew exactly where the house in question was located.
Considering these facts, it is obvious that the officers knew where they were going and went to the home of this appellee and found the marijuana, which the appellee admitted was his.
We are, therefore, of the opinion that this cause is due to be reversed and remanded for trial. We hold that the address shown in this search warrant was sufficient and that, under the facts, the warrant was valid and the suppression of the evidence was improper.
This cause is reversed and remanded because the warrant in this cause is determined to be legally sufficient under the Fourth Amendment to the United States Constitution.
REVERSED AND REMANDED.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600326/ | 120 F.Supp. 354 (1954)
McGRAW ELECTRIC CO. et al.
v.
UNITED STATES et al.
Civ. No. 7973.
United States District Court, E. D. Missouri, E. D.
March 19, 1954.
*355 *356 Arthur J. Freund, St. Louis, Mo., for plaintiffs.
H. G. Morison, Asst. Atty. Gen., Robert W. Strange and James E. Kilday, Special Assts. to Atty. Gen., of Washington, D. C., and George L. Robertson, U. S. Atty., St. Louis, Mo., for defendant.
Edward M. Reidy, Chief Counsel, and Samuel R. Howell, Asst. Chief Counsel, Washington, D. C., for intervening defendant, Interstate Commerce Commission.
Edward R. Gustafson and Leo P. Day, Chicago, Illinois, and Richmond C. Coburn, St. Louis, Mo., for intervening defendant Railroads.
Before THOMAS, Circuit Judge, MOORE and HARPER, District Judges.
MOORE, Judge.
This is an action under Sections 1336, 1398, 2284 and 2321 through 2325, 28 U.S.C.A., to enjoin, set aside, annul and suspend certain orders of the Interstate Commerce Commission (1) dismissing a complaint seeking the prescription of lawful rates for the future and reparations from defendant railroads on shipment of electrical fuses, and (2) discontinuing suspension of a new tariff schedule affecting the same commodities. The two proceedings were consolidated before the Commission by agreement of the parties.
We are met at the outset with plaintiffs' motion for judgment on the pleadings or for summary judgment, which was consolidated before us with the hearing on the merits. This motion is on the ground that the plaintiffs had not been accorded a full and fair hearing before the Commission. This matter requires a somewhat detailed recital of the procedure in this case before the Commission. The shortened procedure was used, whereby no oral evidence was heard, but affidavits and exhibits were submitted. The parties filed their exceptions to the proposed report of the examiner, and requested oral argument before Division No. 3 of the Commission (consisting of three members). The request for oral argument was granted. *357 and on the appointed day was heard by Commissioners Miller and Cross, after announcement that Commissioner Johnson was unavoidably absent, but would read the transcript of the argument, and would participate in the decision on the case. While the case was under submission, Commissioner Miller died, and the parties were notified that Commissioner Patterson had been appointed to take his place on Division No. 3, and that the case had been re-submitted for decision by the Division so constituted. About ten days later the Report and Opinion of Division No. 3 was announced, with a dissent, in part, by Commissioner Cross, the only member who had heard the oral argument. The plaintiffs filed original and supplemental petitions for rehearing and re-argument, which raised these matters, and both were denied by the full Commission without argument.
The defendants argue that the point is not properly raised in this court because plaintiffs failed to object to the hearing before the two commissioners, and further failed to object to the resubmission to the newly constituted division after receipt of the notice mentioned above. However, these matters were raised in the petitions for rehearing and reargument before the Commission, and in view of the relatively short period of time before the announcement of its decision by the Division as reconstituted, we will assume that these matters were sufficiently raised during the administrative proceedings.
Section 17(1) of the Interstate Commerce Act, 49 U.S.C.A. § 17(1), provides that the Commission may divide its members "into as many divisions (each to consist of not less than three members) as it may deem necessary * * * When a vacancy occurs in any division or when a Commissioner because of absence, or other cause, is unable to serve thereon, the Chairman of the Commission or any Commissioner designated by him for that purpose may serve temporarily on such division until the Commission otherwise orders." Section 17 (3) provides that "The Commission shall conduct its proceedings under any provision of law in such manner as will best conduce to the proper dispatch of business and to the ends of justice. * * * A majority of the Commission, of a division, or of a board shall constitute a quorum for the transaction of business. * * *" Under Section 17 (4) "a division * * * shall have authority to hear and determine * * * or otherwise act as to any work, business, or functions assigned or referred thereto * * * and * * * shall have all the jurisdiction and powers conferred by law upon the Commission, and be subject to the same duties and obligations."
It is to be noted that no objection was made at the oral argument to the announcement that one of the three members of the Division was absent. Plaintiffs do not now complain of this because under the statute a quorum was present, and if the majority which heard the argument had decided the case they would have no complaint. See Visceglia v. United States, D.C., 24 F.Supp. 355, where the substitution of one member after argument before a Division consisting of three members was held not to invalidate the action of the Commission.
Plaintiffs' complaint here is that the majority which rendered the decision had not heard the oral argument, and the one member who had heard argument dissented in part.
This situation is similar in some respects to that in Eastland Co. v. Federal Communications Commission, 67 App. D.C. 316, 92 F.2d 467, certiorari denied 302 U.S. 735, 58 S.Ct. 120, 82 L.Ed. 568, where a Division of three commissioners heard the evidence and argument, but the decision was later rendered by the Division with the substitution of two members who had not heard the case one member had died and the other had been transferred to another Division. *358 The Court said, 92 F.2d at pages 469-470:
"No question is raised by the appellants as to lack of notice, or opportunity to present evidence and file briefs or as to the manner in which the hearing itself was conducted. The appellants were accorded ample and timely notice and a full opportunity to be heard. The commissioners who entered the decision report that they had fully considered the evidence and the entire record of the case.
"The contention of appellants is that they were entitled to have their case passed upon by the identical members of the Broadcasting Division who sat at the presentation of all of the evidence in the case, and that the procedure followed amounted to a denial of a lawful hearing and trial of the case, inasmuch as two members who joined in the decision did not hear the oral evidence when delivered by the witnesses in person.
"In our opinion the partial change in the personnel of the Division which decided the case did not invalidate its decision, for it was nevertheless the decision of the Division which acted upon the evidence."
The Court relied upon the statutes, which are substantially similar to those concerning the Interstate Commerce Commission quoted supra, but the Court goes on to point out the fact that no motion for rehearing was made before the Division or Commission, as was done here.
However, we believe that a full and fair hearing was granted in this case. A majority of the Division as then constituted heard the oral argument after notice to the parties that the third member was unavoidably absent and would read the transcript of the oral argument and participate in the decision on the case. This he did, and also had all of the purely documentary evidence and written memoranda before him. Commissioner Patterson, who was substituted for Commissioner Miller, also had all of this material before him.
It is to be noted that the parties waived their right to present oral testimony and to cross-examine their adversaries' witnesses by consenting to the "shortened procedure" under the Commission's rules. Oral argument, under Rule 98 of the Commission's General Rules of Practice, 49 U.S.C.A.Appendix, is not granted as a matter of right but is discretionary with the Commission.
The Administrative Procedure Act, 5 U.S.C.A. §§ 1004, 1006 and 1007, does not provide the circumstances under which oral argument shall be granted, nor who shall preside at such argument. See National Labor Relations Board v. Stocker Mfg. Co., 3 Cir., 185 F.2d 451.
Due process of law under the Fifth Amendment does not necessarily require that oral argument be granted. In Federal Communications Commission v. WJR, The Goodwill Station, 337 U.S. 265 at page 275, 69 S.Ct. 1097 at page 1103, 93 L.Ed. 1353, the Court said:
"On the contrary, due process of law has never been a term of fixed and invariable content. This is as true with reference to oral argument as with respect to other elements of procedural due process. For this Court has held in some situations that such argument is essential to a fair hearing, Londoner v. City & County of Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103, in others that argument submitted in writing is sufficient, Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 911, 80 L.Ed. 1288. See also Johnson & Wimsatt v. Hazen, 69 App.D.C. 151, 99 F.2d 384; Mitchell v. Reichelderfer, 61 App.D.C. 50, 57 F.2d 416."
See, also, Sisto v. Civil Aeronautics Board, 86 U.S.App.D.C. 31, 179 F.2d 47.
As no statute or rule demands it, and procedural due process does not necessarily require it, we hold that the hearing *359 granted in this case was reasonable and adequate where all the evidence was in documentary form, and the oral argument in written form was before all the members of the Division who decided the case.
On the merits, this controversy involves ratings on electrical fuses. These are of three principal types: the screw-in fuse; the cartridge type fuse and the knife blade fuse. Under tariff schedules for Official Territory, there are two classifications into which fuses may fall: "Item 15890 Electric * * * fuse plugs, in barrels or boxes"; and "Item 15965 Fuses, noibn[1], in barrels or boxes".
The screw-in type fuse falls into the "fuse plug" classification, and in less than carload shipments takes a rating of Class 2, but by virtue of a classification exception rating takes a rating of Column 70, or 70% of First Class. The cartridge and knife blade types have been placed into the "fuses, noibn" classification, and in less than carload shipments take a first class rating, and have no exception rating. There is also a Column 70 rating on less than carload shipments of certain electrical appliances and parts thereof, including "circuit breakers * * * cut-outs * * * controllers or parts * * * motors or parts * * * switches and parts".
The shippers contended that the rates charged on the cartridge and knife blade fuses were, are and for the future will be unreasonable, unjustly discriminatory, and inapplicable, in violation of Sections 1, 2 and 6 of the Interstate Commerce Act, 49 U.S.C.A. §§ 1, 2, 6.
The Commission dismissed the Complaint and vacated the suspension order on the new tariff which amended the description in Item 15890 from "fuse plugs" to "screw shell type fuse plugs".
The plaintiffs claim, first, that the ratings applied to their knife-blade and cartridge type fuses are inapplicable because they should properly fall within the exceptions tariff relating to certain electrical appliances or parts mentioned above. Plaintiffs contend that the construction of the rate tariffs is purely a question of law for determination by this Court and that all ambiguities or reasonable doubts as to their meaning must be resolved against the Railroad Carriers.
In this connection it is asserted that the cartridge and knife-blade types are obviously "fuse plugs" because they are "plugged" into receptacles and that they are obviously both "circuit breakers" and "cutouts" under the other exceptions tariff. The short answer to this is that the plaintiffs made no such contentions before the Commission and should not be heard to make them for the first time before this Court. General Transp. Co. v. United States, D.C., 65 F. Supp. 981, 984. Actually, the contentions are not even made in the pleadings in this Court, but are raised for the first time in the briefs. Furthermore, there is evidence placed in the record by plaintiffs that the terms are not used synonymously commercially, or in the electrical industry, but describe different types of circuit-interrupting devices.
The plaintiffs did contend before the Commission that the designation of "fuse plugs" was confusing as to whether it embraced the term "plug fuse". They also contended strenuously that the cartridge and knife-blade fuses were embraced within the terms "parts" of the electrical appliances mentioned above.
The Commission found on substantial evidence that the terms "plug fuse" and "fuse plug" are used synonymously in the electrical business to describe a fuse which is screwed into a receptacle in the manner of an electric bulb. It further found that size or composition of the base makes no difference in the description; that substitution of "screw shell type fuse plugs" for "fuse plugs" would cover the Type S fuse, which has a smaller *360 base; and that the schedules under suspension, therefore, would be just and reasonable.
On the question of fuses as "parts" of electrical appliances, the Commission found:
"There is nothing peculiar in the construction or use of a fuse to take it out of its own category and place it with parts of electrical appliances. It must be admitted, of course, that a fuse may be considered to be part of an electrical appliance when shipped with, and as a part of, the appliance. However, that is not the case here. These complainants manufacture fuses and ship them in quantity as fuses. There is no showing that the fuses are shipped with, or as parts of, any electrical appliances or machinery. Similarly, there is no showing that they are manufactured to specifications for use with any particular appliance or machine.
"It is apparent that these fuses are manufactured to serve a particular purpose, i. e., the protection of the circuit, the machinery or appliance, or both. As the exception item covering electrical appliances and parts does not embrace fuses, it follows that the ratings sought are not applicable thereon."
We believe that the determination of the applicable tariffs in this case is a question of law inextricably mingled with questions of fact. The determination of whether fuses are "parts" of the electrical appliances involves determination of fact, namely, the meaning of the tariff term "fuses" in ordinary industrial and commercial usage, and what is comprehended in the term "parts" of the electrical appliances. The evidence was conflicting on these issues, but our function as the reviewing Court is limited to a determination of whether the Commission's findings are supported by substantial evidence. We believe the findings are supported by substantial evidence and, therefore, cannot be upset. As was stated in Old Colony Furniture Co. v. United States, D.C., 95 F. Supp. 507 at page 510:
"It is true that it has been frequently said that the construction of a railroad freight tariff, like that of any other document, is a question of law. But at times, as is the case here, the question of law is inextricably mingled with questions of fact. Here, as petitioners themselves contend, the words of the tariff must be given the sense which they would convey to the shipper who reads it. But this in turn requires findings of fact as to the meanings which these words have in industrial usage. Cf. Great Northern Railway Co. v. Merchants' Elevator Co., supra [259 U.S. 285, 42 S.Ct. 477, 66 L.Ed. 943]. These latter findings of the Commission, being supported by substantial evidence, cannot be upset. In the light of these findings, the Commission's ruling as to which item of the tariff is applicable is correct."
That case involved the question whether paint on wooden auto parts was a "preservative" or a "protective coating" under the tariffs. See, also, Texas & P. R. Co. v. American Tie & Timber Co., 234 U.S. 138, 34 S.Ct. 885, 58 L.Ed. 1255, where the question involved whether oak cross-ties were "lumber" within the meaning of the tariff.
The plaintiffs charge that the Commission erred as a matter of law in finding that "No proof was offered in support of the allegation of unjust discrimination, which will not be further considered". It was explained in a footnote:
"Section 2 is intended to enforce equality between shippers, and it prohibits any rebate or other device by which two shippers, shipping over the same line, the same distance, under the same circumstances of carriage, are compelled to pay different freight charges therefor. See Wight v. United States, 167 U. S. 512, 17 S.Ct. 822, 42 L.Ed. 258."
*361 The burden of plaintiffs' contention is, apparently, that all types of fuses are "a like kind of traffic" under Section 2 of the Act, and should, therefore, come under the same classification rating. But Section 2 is not applicable in such a situation, for the reason that Section 2 was intended to enforce equality between shippers. Wight v. United States, supra, and see, also, L. T. Barringer & Co. v. United States, 319 U.S. 1 at page 6, 63 S.Ct. 967, 87 L.Ed. 1171. The finding of the Commission that no proof was offered as to preferences for other shippers is supported by the record.
We now turn to the allegation that the rating of first-class on "fuses, noibn" on shipments in less than carload lots is unreasonable under Section 1 of the Act.
The Commission found that the applicable ratings on "fuses, noibn" were not shown to have been or to be unreasonable, and based this conclusion on a number of subsidiary findings. They found that there was no proof that the rates were unreasonable per se, and that the attack was directed to the proposition that the commodity had been improperly rated in the classification, which was unreasonable to the extent that it exceeds the Column 70 exception rating on fuse plugs and electrical appliances and parts; that the weights and values of the different types of fuses varied considerably; that, for example, plaintiff McGraw's fuses, noibn, ranged in weight from 49 to 62 pounds a cubic foot, and in value from 76 cents to $2 a pound, as compared with a density of 53.5 pounds a cubic foot and a value of 37 cents a pound for shipments of fuse plugs by the same company; that the Commission previously found first-class rates not unreasonable on commodities having lower values per pound than such "fuses, noibn" and similar weight densities; that motor truck competition was the motivating force in compelling the establishment in 1940 of the exceptions ratings; and that the first-class rating on fuses, noibn, had been in effect since 1930 without complaint from shippers, thus importing general satisfaction with the existing rates.
These findings and conclusions on the question of reasonableness are a matter peculiarly within the province of the Commission. The function of this Court is a limited one. It is to determine if there is in the record any rational basis for what the Commission has done. If there is, the judicial function is exhausted, and the order of the Commission must stand. Rochester Tel. Corp. v. United States, 307 U.S. 125, 146, 59 S.Ct. 754, 83 L.Ed. 1147. It was said in the Rochester case, 307 U.S. at p. 140, 59 S.Ct. at page 762:
"Only questions affecting constitutional power, statutory authority and the basic requirements of proof may be raised."
The plaintiffs contend that the Commission ignored essential elements in the determination of the rating, failed to consider some of the evidence, and placed undue reliance on the questions of value and the existence of the rating for a long period.
It is alleged that the Commission ignored the fact the Column 70 exception rating is used in Southern, Western and Western Trunk Line Territories on "fuses, noibn" and from points in Official Territory to destinations in those Territories. However, this fact is mentioned in the report of the Commission. The contention is that the Commission failed to follow its own principles as established in the Class Rate Investigation, 1939, 262 I.C.C. 447, that uniformity of rates was highly desirable as between Territories.
However, it was also held in that case that the rulings on uniformity between territories were not intended to prevent exceptional classifications where required by either the Commerce Act or for commercial or competitive reasons. Since the Column 70 ratings in other territories were applied by virtue of exceptions tariffs as to which there was some evidence in the record to show they were issued to meet motor *362 truck competition, we cannot say that the Commission ignored its own rulings or improperly applied the law.
Plaintiffs assert that the Commission stressed the element of value without taking into consideration the fact that the risk of loss was negligible on fuses of all types over a long period of years. However, the Commission mentions this fact in its report, and has indicated in the past that more significance is placed upon the value of a commodity than merely the extent to which it affects the risk of loss in transporting it. Rubber Ass'n of Am. v. Akron & B. B. R. Co., 174 I.C.C. 79, at 85.
The plaintiffs further assert that evidence as to value of other current-protective devices enjoying the 70% exception rating was ignored by the Commission. However, it is not the function of this Court to decide where the weight of the evidence lies, and what evidence shall be disregarded. Merchants' Warehouse Co. v. United States, 283 U.S. 501, 51 S.Ct. 505, 75 L.Ed. 1227.
The Commission has at times held that a classification which has long existed and is accorded long recognition is persuasive of its reasonableness, and at other times that such a factor is not conclusive. We cannot say as a matter of law that the Commission's reference to the long existence of the classification in this case is invalid.
The plaintiffs contend, lastly, that the Commission's orders are invalid because they have the effect of violating the long-and-short-haul provisions of Sec. 4 of the Interstate Commerce Act, 49 U.S.C.A. § 4. There is some evidence in the record that the first-class rates on "fuses, noibn" to border points in Official Territory exceeded the Column 70 exception rates to points just beyond the territorial border, although the former were generally intermediate to the latter. However, the plaintiffs made no such contention before the Commission, nor in the pleadings in this Court, and apparently relied upon the evidence only to attack the reasonableness of the first-class rate. Plaintiffs are not entitled to a trial de novo before the Court. Rochester Tel. Corp. v. United States, supra. Furthermore, the Commission suggests in its brief that at the time of these shipments there was in effect a Fourth Section Order of the Commission permitting such departures under the proviso of the law.
Upon the record as a whole, we cannot say that the orders of the Commission are arbitrary or capricious. They are rationally based on adequate findings and conclusions as to all the issues directed to its attention. These, in turn, find substantial support in the evidence. The plaintiffs' Complaint will, therefore, be dismissed.
NOTES
[1] The word "noibn" is a coined word meaning not otherwise indexed or classified by name. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600288/ | 571 So. 2d 1303 (1990)
THE FLORIDA BAR, Complainant,
v.
Peter S. HERRICK, Respondent.
No. 69957.
Supreme Court of Florida.
October 11, 1990.
Rehearing Denied January 3, 1991.
*1304 John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel and Stephen Tobano, Bar Counsel, Tallahassee, and Patricia S. Etkin, Bar Counsel, Miami, for complainant.
Peter S. Herrick, Miami, in pro. per.
PER CURIAM.
Peter S. Herrick petitioned this Court to review the report of the referee entered in disciplinary proceedings against him by The Florida Bar. We have jurisdiction pursuant to article V, section 15, of the Florida Constitution.
The disciplinary proceedings were initiated because Herrick mailed an unsolicited letter to a couple upon learning that the couple had an interest in a vessel that had been seized by customs. The letter read as follows:
"Customs seized a 1981 30'2" Formula Thunderbird .. . and will forfeit the vessel unless a claim and bond for $2,500.00 is given to them by August 15, 1985. Our law firm specializes in Customs laws relating to vessel seizures. If you have any questions, please call."
The referee found that the letter was sent for the purpose of obtaining professional employment. Neither the letter nor the envelope was marked "Advertisement." The respondent is not certified or designated in any area of law.
The referee recommended that Herrick be found guilty on three counts under the then-applicable Code of Professional Responsibility.[1] First, the referee recommended *1305 respondent be found guilty of violating Disciplinary Rule 2-104(B)(1)(a) of the Code of Professional Responsibility for the mailing of an unsolicited letter to a prospective client not marked as an advertisement. As to count II, he recommended that Herrick be found guilty of violating Disciplinary Rule 2-105 for stating that he was a specialist in customs law and thereby representing that he had competence or experience in a particular area of law. Under count III, the referee recommended that Herrick be found guilty of violating Disciplinary Rule 2-105 for publicly representing that he specialized and practiced in an area of law not recognized by the Florida Certification Plan or the Florida Designation Plan. The referee recommended a public reprimand.
The United States Supreme Court has held that attorney advertising is a type of commercial speech that is protected by the first amendment. Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977). However, false, deceptive, or misleading advertising remains subject to restraint. Id. at 383, 97 S.Ct. at 2708-09. The Court has noted that "because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising." Id. Further, states not only may impose restraints to prevent misleading advertising but may also require limited supplementation, such as a warning or disclaimer, in order to assure that the consumer is not misled. Id. at 384, 97 S.Ct. at 2709.
Even when a communication is not misleading, a state retains some authority to regulate. However, a state must assert a substantial interest and may only interfere with speech in proportion to the interest served. In re R.M.J., 455 U.S. 191, 102 S. Ct. 929, 71 L. Ed. 2d 64 (1982). The state rules may be no broader than reasonably necessary to prevent the perceived evil. Id.
First, we turn to Herrick's violation of Disciplinary Rule 2-104(B)(1)(a)[2] for sending an unsolicited letter not marked as an advertisement. This requirement does not violate Herrick's first amendment rights. We recognize that direct-mail solicitation does not pose the same risks as in-person solicitation. Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 108 S. Ct. 1916, 100 L. Ed. 2d 475 (1988). However, some risks are involved in mail solicitation by attorneys. As noted by the Supreme Court:
[A] letter that is personalized (not merely targeted) to the recipient presents an increased risk of deception, intentional or inadvertent. It could, in certain circumstances, lead the recipient to overestimate the lawyer's familiarity with the case or could implicitly suggest that the recipient's legal problem is more dire than it really is. Similarly, an inaccurately targeted letter could lead the recipient to believe she has a legal problem that she does not actually have or, worse yet, could offer erroneous legal advice.
Id. at 476, 108 S.Ct. at 1923 (citation omitted). While the Supreme Court has held that a state cannot justify an absolute prohibition on this type of protected speech, a state "can regulate such abuses and minimize mistakes through far less restrictive and more precise means... ." Id. The Supreme Court has explicitly recognized that one such regulation is requiring a letter to bear a label identifying it as an advertisement. Id. at 477, 108 S.Ct. at 1923-24.
Therefore, we believe that Disciplinary Rule 2-104(B)(1)(a) is constitutional as one of these "less restrictive and more precise means" of regulation envisioned by the Supreme Court. The use of the term "Advertisement" printed on the letter acts to disclose *1306 the nature of the letter to the recipient. Its purpose is to assuage any concerns the recipient may have due to receiving a personalized letter from an attorney. Certainly in our increasingly litigious society, the receipt of such a letter, personalized to one's own particular and perhaps pressing legal problem, could cause concern or confusion, especially if the recipient is generally unfamiliar with legal services.
Herrick argues that letters such as his provide important information to the public and are part of an attorney's legal duty to assist laymen in recognizing legal problems under Ethical Consideration 2-3. He states that such a letter which contains information concerning the action the recipient must take within a limited time period to protect his rights is likely to be discarded if marked "Advertisement." While this may be a legitimate concern, we think that the concerns with personalized mail solicitation outlined above present the greater risk and therefore justify the regulation.
Next, we turn to count II and Disciplinary Rule 2-105. Disciplinary Rule 2-105 reads as follows:
A lawyer shall not hold himself out publicly as a specialist or as limiting his practice, except as follows:
(1) A lawyer who complies with the Florida Certification Plan ... may inform the public and other lawyers of his certified areas of legal practice.
(2) A lawyer who complies with the Florida Designation Plan ... may inform the public and other lawyers of his designated areas of legal practice.
(3) A lawyer may permit his name to be listed in lawyer referral offices according to the fields of law in which he will accept referrals.
(4) A lawyer available to act as a consultant to or an associate of other lawyers in a particular branch of law or legal service may distribute to other lawyers and publish in local legal journals a dignified announcement of such availability, but the announcement shall not contain a representation of special competence or experience, except as permitted under DR 2-105(1) or
(2) above. The announcement shall not be distributed to lawyers more frequently than once in a calendar year, but it may be published periodically in local legal journals.
Respondent argues that this rule violates the first and fourteenth amendments to the United States Constitution.
The Supreme Court has stated that a state may not place an absolute prohibition on certain types of potentially misleading information, such as a listing of areas of practice. In re R.M.J., 455 U.S. at 203, 102 S.Ct. at 937. However, when the advertising is false, deceptive, or misleading, it is clearly subject to restraint. Bates, 433 U.S. at 383, 97 S.Ct. at 2708-09. The Florida Bar asserts that the statement that an attorney or firm specializes in a particular area of the law is misleading to the general public because it could reasonably be interpreted to mean that the attorney or firm has competence or experience in a particular area of law. Further, the Bar argues that use of the term "specialize" could easily confuse and mislead the public as to the differences between the terms "certified," "designated," and "specialized."
The respondent argues that use of the term "specialize" is not misleading because Webster's New College Dictionary (1974) defines the term as "to concentrate one's efforts in a special activity or field." Respondent supports his argument by noting that Disciplinary Rule 2-105 has been replaced with the present rule 4-7.5, Rules Regulating the Florida Bar, which states that a "lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law."
We hold that the referee's finding that respondent violated Disciplinary Rule 2-105 does not violate respondent's first amendment rights. Both Disciplinary Rule 2-105 and Rule 4-7.5 prohibit a lawyer from stating or implying that the lawyer is a "specialist" except when allowed under the Florida Certification Plan, the Florida Designation Plan, and in other limited situations.[3]*1307 By prohibiting the general use of the term "specialist," the rule seeks to restrain advertising which can be false, deceptive, or misleading. By characterizing himself as a specialist, an attorney does more than merely indicate that he practices within a particular field. The term "specialist" carries with it the implication that the attorney has special competence and expertise in an area of law. We reject Herrick's argument that the word "specialize" carries a different connotation than "specialist."
We recognize that Herrick's chosen area of practice, customs and forfeiture law, is not an area recognized under the Florida Certification Plan or the Florida Designation Plan. However, Herrick is not prevented from advertising that he practices in the area of customs law, but to permit Herrick to state that he is a specialist in customs law runs the risk of misleading the public into believing that he has been qualified under the Bar's designation or certification program. The state's interest here in preventing the public from being misled is strong and the regulation is narrowly drawn. This is not a case where the attorney truthfully advertises that he has been certified as having met the standards of a recognized organization which tests the proficiency of lawyers in certain areas of the law. Peel v. Attorney Registration & Disciplinary Comm'n, ___ U.S. ___, 110 S. Ct. 2281, 110 L. Ed. 2d 83 (1990).
We conclude that the charges under count III were subsumed by count II. Herrick was not entitled to hold himself out as a specialist in any area of law regardless of whether it was recognized under the designation or certification program
We uphold the referee's findings with respect to counts I and II and find the respondent guilty of violating Disciplinary Rules 2-104(B)(1)(a) and 2-105. We further agree that a public reprimand is the appropriate discipline. Accordingly, it is the judgment of this Court that attorney Peter S. Herrick is publicly reprimanded by publication of this opinion in the Southern Reporter. Herrick is ordered to pay the costs of this proceeding. Judgment is entered against him for costs of $694.46, for which sum let execution issue.
It is so ordered.
SHAW, C.J., and OVERTON, McDONALD, EHRLICH, BARKETT, GRIMES and KOGAN, JJ., concur.
NOTES
[1] The Code of Professional Responsibility has since been superceded by the Rules Regulating the Florida Bar.
[2] Disciplinary Rule 2-104(B)(1)(a) reads:
(1) Written communications to prospective clients for the purpose of obtaining professional employment are subject to the following requirements:
(a) Such written communications shall be plainly marked "Advertisement" on the face of the envelope and at the top of each page of the written communication in type no smaller than the largest type used in the written communication.
[3] Rule 4-7.5 of the Rules Regulating the Florida Bar reads:
A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not state or imply that the lawyer is a specialist except as follows:
(a) A lawyer admitted to engage in patent practice before the United States patent and trademark office may use the designation "patent attorney" or a substantially similar designation;
(b) A lawyer engaged in admiralty practice may use the designation "admiralty," "proctor in admiralty," or a substantially similar designation;
(c) A lawyer who complies with the Florida Certification Plan ... or who is certified by a national group which has standards for certification substantially the same as those set out in [the Florida Certification Plan], may inform the public and other lawyers of his or her certified areas of legal practice; and
(d) A lawyer who complies with the Florida Designation Plan ... may inform the public and other lawyers of his or her designated areas of legal practice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2721206/ | IN THE COURT OF APPEALS OF IOWA
No. 13-0821
Filed August 27, 2014
IN THE INTEREST OF I.M.,
Minor Child,
I.M., Mother,
Appellant,
C.M., Grandmother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,
District Associate Judge.
A mother appeals from the order terminating her parental rights. The
maternal grandmother, as intervenor, appeals from the disposition order and the
order terminating parental rights. AFFIRMED.
Jane M. White of Jane M. White Law Office, Des Moines, for appellant-
mother.
Jessica J. Chandler of Chandler Law Offices, Windsor Heights, for
appellant-grandmother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, John P. Sarcone, County Attorney, Christine Gonzalez, Assistant
County Attorney, for appellee.
Michael Sorci of Youth Law Center, Des Moines, attorney and guardian ad
litem for minor child.
Considered by Danilson, C.J., and Vogel and Bower, JJ.
2
DANILSON, C.J.
The mother appeals from the juvenile court order terminating her parental
rights to her child, I.M.1 The maternal grandmother, as intervenor, appeals from
the juvenile court’s termination order as well as the disposition order. Because
the grandmother did not provide us with a transcript of the entire disposition
proceedings, we are unable to review the juvenile court’s decision, and we affirm
the placement of the child. Because the mother does not contest the juvenile
court’s ruling there is clear and convincing evidence that grounds for termination
exist under Iowa Code sections 232.116(1)(d), (e), and (g) (2013), we affirm the
termination of her parental rights.
I. Standard of Review.
Our review of an action arising from child-in-need-of-assistance
proceedings is de novo. In re K.B., 753 N.W.2d 14, 14 (Iowa 2008).
Our review of termination decisions is de novo. In re P.L., 778 N.W.2d 33,
40 (Iowa 2010). We give weight to the juvenile court’s findings, especially
assessing witness credibility, although we are not bound by them. In re D.W.,
791 N.W.2d 703, 706 (Iowa 2010). An order terminating parental rights will be
upheld if there is clear and convincing evidence of grounds for termination under
section 232.116. Id.
II. Grandmother’s Appeal.
The grandmother appeals from the court’s disposition order and the order
terminating the mother’s parental rights. She contends the district court’s refusal
1
The father’s parental rights were also terminated. He does not appeal.
3
to modify placement is contrary to a relative placement preference and is not in
the child’s best interests.
Insofar as the grandmother’s appeal involves the district court’s disposition
order finding placement of I.M. in her care was not in the child’s best interests,
the grandmother’s failure to provide us with a transcript of the entire disposition
proceedings constitutes waiver of the issue. See Iowa R. App. P. 6.803(1) (“If
the appellant intends to urge on appeal that a finding or conclusion is
unsupported by the evidence or is contrary to the evidence, the appellant shall
include in the record a transcript of all evidence relevant to such finding or
conclusion.”); see also In re F.W.S., 698 N.W.2d 134, 135–36 (Iowa 2005)
(“Without the benefit of a full record of the lower court’s proceedings, it is
improvident for us to exercise appellate review. . . . [The appellant’s] failure to
comply with rule [6.803(1)] precludes [her] from seeking relief on appeal.”).2
Additionally, to the extent the grandmother’s appeal is based on the termination
proceedings and the resulting order, the grandmother does not have standing to
appeal the termination of the mother’s parental rights, and neither the termination
proceedings nor order contemplate the specific placement of I.M.3
III. Mother’s Appeal.
The mother raises four issues on appeal. She contends (1) the juvenile
court erred by refusing to place I.M. in I.M.’s grandmother’s custody because the
2
The disposition hearing was held over five days: August 27, October 11, November 16,
November 30, and December 27, 2012. The record only contains transcripts for the
proceedings held on November 16, 2012.
3
The order terminating the mother’s parental rights states, “It is further ordered the child
shall continue in the custody of the Department of Humans Services for pre-adoptive
foster care [and] . . . shall be placed in guardianship of the Iowa Department of Human
Services which shall actively promote her adoption.”
4
grandmother is a relative entitled to preferential treatment pursuant to section
232.102, (2) the juvenile court erred by refusing to grant sibling visitation,
pursuant to section 232.108, (3) the court erred by allowing the State to enter
criminal files of a third party into evidence, and (4) the court erred in finding
reasonable efforts had been made pursuant to section 232.102(10).
The mother’s first and second claims are waived, as they depend on the
juvenile court’s ruling in the disposition proceedings. Per her filed notice, the
mother appeals from only the juvenile court’s termination order. Alternatively, as
we have not been provided the transcripts of the entire disposition hearing, we
are unable to review the proceedings for the alleged errors. See Iowa R. App.
P. 6.803(1); see also F.W.S., 698 N.W.2d at 135–36.
Although the mother contends the district court erred by admitting
improper evidence at the termination hearing, she does not contest the court’s
ruling there is clear and convincing evidence that grounds for termination exist
under sections 232.116(1)(d), (e), and (g). Thus, even if the court’s admission of
the third party’s criminal history was improper, any such alleged error was
harmless.
The mother also claims the court erred in finding reasonable efforts had
been made, pursuant to section 232.102(10), because the court repeatedly
denied both the mother’s and the grandmother’s requests for sibling visitation.
Section 232.102(10)(a) defines reasonable efforts as:
The efforts made to preserve and unify a family prior to the out-of-
home placement of a child in foster care or to eliminate the need for
removal of the child or make it possible for the child to safely return
to the family’s home. Reasonable efforts shall include but are not
5
limited to giving consideration, if appropriate, to interstate
placement of a child in the permanency planning decisions
involving the child and giving consideration to in-state and out-of-
state placement options at a permanency hearing and when using
concurrent planning. If returning the child to the family’s home is
not appropriate or not possible, reasonable efforts shall include the
efforts made in a timely manner to finalize a permanency plan for
the child. A child’s health and safety shall be the paramount
concern in making reasonable efforts. Reasonable efforts may
include but are not limited to family-centered services, if the child’s
safety in the home can be maintained during the time the services
are provided.
The mother has not explained how sibling visitation would have aided in
“eliminat[ing] the need for removal of the child or mak[ing] it possible for the child
to safely return to the family’s home.” We will not speculate on the arguments an
appellant might have made and then search for legal authority and comb the
record for facts to support such arguments. See Hyler v. Garner, 548 N.W.2d
864, 876 (Iowa 1996). Furthermore, the mother did not raise the argument
before the district court, so we consider it waived. See Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review
that issues must ordinarily be both raised and decided by the district court before
we will decide them on appeal.”).
IV. Conclusion.
We affirm the juvenile court’s placement of the child and the order
terminating the mother’s parental rights pursuant to Iowa Code sections
232.116(1)(d), (e), and (g).
AFFIRMED. | 01-03-2023 | 08-27-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1608381/ | 791 So. 2d 515 (2001)
ALLSTATE INSURANCE COMPANY, Appellant,
v.
Roberto and Maria BLANCO, Appellee.
No. 3D00-255.
District Court of Appeal of Florida, Third District.
July 18, 2001.
Rehearing Denied August 24, 2001.
*516 Angones, Hunter, McClure, Lynch & Williams, and Christopher Lynch, Miami, for appellant.
John S. Cosgrove; and Jeanne Heyward, Miami, for appellee.
Before LEVY, FLETCHER, and RAMIREZ, JJ.
ON MOTION FOR REHEARING
PER CURIAM.
Plaintiffs Roberto and Maria Blanco's Motion for Rehearing is granted. We withdraw our opinion filed on June 6, 2001 and substitute the following in its place.
Allstate Insurance Company, defendant below, appeals an award of prejudgment interest to plaintiffs Roberto and Maria Blanco. We reverse because prejudgment interest should have been computed from the date of the appraisal award, not the date of loss.
The Blancos were insured by Allstate when their home was damaged by Hurricane Andrew. They submitted a claim which Allstate promptly paid. Five years later, the Blancos submitted a supplemental claim for Hurricane Andrew losses and received an appraisal award on February 26, 1999, which Allstate paid on March 30, 1999. The Blancos were awarded prejudgment interest from August 24, 1992, the date of loss.
"[A] plaintiff is entitled to prejudgment interest when it is determined that the plaintiff has suffered an actual, out-of-pocket loss at some date prior to the entry of judgment." Alvarado v. Rice, 614 So. 2d 498, 499 (Fla.1993). The cases that recognize a right to prejudgment interest have all involved the loss of a vested property right. Id. Here, the Blancos' supplemental claim was similar to the medical expenses at issue in the Alvarado case in that the Blancos had not suffered the loss *517 of a vested property right. Thus, the Blancos were not entitled to prejudgment interest prior to receiving an appraisal award which determined their actual loss. See also Liberty Mutual Ins. Co. v. Alvarez, 785 So. 2d 700 (Fla. 3d DCA 2001); Aries Ins. Co. v. Hercas Corp., 781 So. 2d 429 (Fla. 3d DCA 2001)(stating that the insured was entitled to prejudgment interest from the date of the appraisal award as that was the date on which the damages were liquidated).
Thus, prejudgment interest is awarded from the date of the appraisal award and would normally have been awarded from February 26, 1999, rather than from the date of loss. However, the insurance policy provisions allowed Allstate sixty days within which to pay the appraisal award and Allstate made payment within the allotted time. Thus, the Blancos are not entitled to receive any prejudgment interest.
The Blancos cross-appeal the denial of their request for costs and attorney's fees incurred while litigating entitlement to costs and attorney's fees. We agree that attorney's fees may properly be awarded for litigating the issue of entitlement to attorney's fees. See State Farm Fire & Casualty Ins. v. Palma, 629 So. 2d 830, 833 (Fla.1993). Although the parties ultimately stipulated as to the Blancos' entitlement to attorney's fees, this issue was initially contested. Therefore, the requested fees were incurred while litigating entitlement to fees, not merely for litigating the appropriate amount of fees to be awarded, and the Blancos' request for costs and fees should be granted.
The Blancos should also be awarded pre-judgment interest on the previously awarded attorney's fees, with interest accruing from the date entitlement to attorney's fees was fixed through agreement, arbitration award, or court determination. See Quality Engineered Inst. v. Higley South, 670 So. 2d 929, 931 (Fla.1996).
Accordingly, we reverse the trial court's denial of the Blancos' motion for attorney's fees and costs incurred while litigating entitlement to said fees and costs, and reverse the denial of prejudgment interest on previously awarded attorney's fees. The cause is remanded with directions to strike the pre-judgment interest award and for a determination of the amount of any additional fees required by this opinion.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600293/ | 571 So. 2d 625 (1990)
STATE of Louisiana
v.
Ricky FRITH and Wallace Posey.
No. 90-K-1655.
Supreme Court of Louisiana.
November 30, 1990.
Writ denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2721215/ | IN THE COURT OF APPEALS OF IOWA
No. 13-2057
Filed August 27, 2014
CLARENCE CHAPMAN,
Plaintiff-Appellee,
vs.
GERDAU AMERISTEEL and ESIS,
Defendant-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Carla T. Schemmel,
Judge.
Employer Gerdau Ameristeel appeals the district court decision reversing
the final decision of workers’ compensation commissioner. REVERSED.
Jordan A. Kaplan of Betty, Neuman & McMahon, P.L.C., Davenport, for
appellants.
D. Brian Scieszinski of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des
Moines, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
2
VAITHESWARAN, P.J.
This appeal from judicial review of a workers’ compensation decision
implicates a statutory provision requiring an employee to notify an employer of an
injury within ninety days of its occurrence.
I. Background Facts and Proceedings
Clarence Chapman worked as a millright for Gerdau Ameristeel.
Chapman began experiencing “trigger finger” in his left hand and pain,
numbness, and tingling in both hands. He was diagnosed with moderately
severe carpal tunnel syndrome. Chapman underwent surgery in 2008. He did
not inform his employer that the surgery was work-related.
Chapman’s condition initially improved but later took a turn for the worse.
On May 27, 2009, Chapman took family medical leave with the approval of his
employer. He returned to work about a month later and continued working until
his early retirement in June 2010.
Chapman filed a petition for workers’ compensation benefits. He alleged
an injury date of October 23, 2008, asserted the injury was to his “[b]ilateral
arms,” and claimed the injury arose from “[c]umulative work activities.” Gerdau
responded that Chapman failed to give the company notice of his injury within
ninety days of its occurrence, as required by Iowa Code section 85.23 (2009).
Following an evidentiary hearing, a deputy commissioner determined that
Chapman’s benefits claim was “barred for lack of timely notice under Iowa Code
section 85.23.” The deputy based his determination on the following findings:
[I]n late May 2009 claimant knew his injury was serious and that it
was work related. By that date, he also knew that his physical
condition was serious enough to have a permanent adverse impact
3
on his job. Claimant did not give notice of injury until April 14,
2010, approximately 11 months later.
Chapman filed an intra-agency appeal. He also filed a second petition
with the workers’ compensation commissioner alleging later injury dates of April
2, 2010, and June 1, 2010. Gerdau moved to dismiss the second petition on the
ground that it was barred by the doctrines of res judicata and judicial estoppel.
The deputy granted the motion based on claim preclusion. Chapman filed a
second intra-agency appeal.
Addressing both appeals in the same ruling, the commissioner affirmed
and adopted the deputy’s decisions as the final agency decision. Chapman
sought judicial review.
The district court reversed the agency. The court concluded the ninety-
day statutory notice period did not “begin until after [Chapman] realized he could
no longer perform his job,” which, according to the court, was on June 1, 2010,
rather than late May 2009, as the agency found. In light of this ruling, the court
determined the agency’s dismissal of Chapman’s second petition was moot.
This appeal followed.
II. Notice to Employer
Iowa Code section 85.23 states:
Unless the employer or the employer’s representative shall have
actual knowledge of the occurrence of an injury received within
ninety days from the date of the occurrence of the injury, or unless
the employee or someone on the employee’s behalf or a dependent
or someone on the dependent’s behalf shall give notice thereof to
the employer within ninety days from the date of the occurrence of
the injury, no compensation shall be allowed.
Iowa Code § 85.23.
4
The commissioner found that Chapman’s injury date was October 23,
2008, as he pled in his first petition. The commissioner recognized, however,
that the date of injury may not control for notice purposes. Herrera v. IBP, Inc.,
633 N.W.2d 284, 287 (Iowa 2001). “[A]lthough an injury may have occurred, the
[notice] period does not commence until the employee, acting as a reasonable
person, recognizes its ‘nature, seriousness and probable compensable
character.’” Id.1 In other words, the notice period “will not begin to run until the
employee also knows that the physical condition is serious enough to have a
permanent adverse impact on the claimant’s employment or employability.” Id. at
288; see also Larson Mfg. Co., Inc. v. Thorson, 763 N.W.2d 842, 855 (Iowa
2009).
The commissioner found that Chapman saw his physician on May 27,
2009, and expressed concern he “could not do his job because he was losing his
grip with tools.” The commissioner further found Chapman was taken off work
and began family medical leave on that date. This is the date the commissioner
used to begin the ninety-day notice period. We review these findings for
substantial evidence. Herrera, 633 N.W.2d at 288; Larson Mfg., 763 N.W.2d at
855.
The record contains physician notes documenting Chapman’s return visit
on May 27, 2009, and his fear
that he cannot do his job because he is prone to lose his grip on
tools, wrenches and so forth and cannot seem to put the strength
through his left upper extremity that he needs to and . . . if he lost a
1
Herrera addressed the two-year statute of limitations under section 85.26, but the Iowa
Supreme Court has stated “[t]his rule is applicable to the notice of claim provision in
section 85.23.” Orr v. Lewis Cent. Sch. Dist., 298 N.W.2d 256, 257 (Iowa 1980).
5
tool into a machine it could cause disruption of function of the
machine plus potentially seriously damage co-workers [if]
fragmentation occurred.
The notes continue: “He thinks he would be fired from his job if that occurred and
he does not wish to take that risk. He seems to be genuinely concerned about
this liability and his inability to feel confident in his grip and holding and use of his
hand and fingers.”
Also in the record is a notice granting Chapman family medical leave as of
that date for a “serious health condition” that made him “unable to perform the
essential functions of” his job. This evidence amounts to substantial evidence in
support of the commissioner’s finding that Chapman recognized the “nature,
seriousness and probable compensable character” of his injury in late May 2009.
Herrera, 633 N.W.2d at 288.
As discussed, Chapman failed to notify his employer of his injury within
ninety days of May 27, 2009. While Chapman appears to dispute this point on
appeal, the record evidence is undisputed. Specifically, a company nurse
testified she received no notification of a work-related injury and Chapman
conceded he did not inform his supervisors of the work-related nature of his
injury.
Chapman falls back on an argument that the company had actual notice of
the work-related nature of his injury. See Iowa Code § 85.23. Actual notice
under Iowa Code section 85.23 requires more than an employer’s awareness of
the employee’s injury; it requires knowledge that the injury might be work-
connected. Johnson v. Int’l Paper Co., 530 N.W.2d 475, 477 (Iowa Ct. App.
1995) (citing Dillinger v. City of Sioux City, 368 N.W.2d 176 (Iowa 1985)).
6
The commissioner found that the company nurse “did not know
[Chapman] had a work injury until notice was served on Gerdau” in 2010. The
finding is supported by substantial evidence in the form of the nurse’s testimony.
She stated she was unaware Chapman’s injury was work-related because no
incident report was filed by Chapman, she was not privy to Chapman’s private
medical records, no supervisors had reported a work-related injury, and she had
no reason to believe the nature of Chapman’s work would cause the type of
injury he sustained. While a fact-finder could have found that Chapman’s hand
surgery together with his decision to take family medical leave placed the
employer on inquiry notice of a work-related injury, inquiry notice is not the
operative standard. See George A. Hormel & Co. v. Jordan, 569 N.W.2d 148,
153 (Iowa 1997) (finding actual notice based on plant manager’s accommodation
of claimant’s injury and company’s authorization of a series of physicians to
examine the claimant); see also Larson Mfg., 763 N.W.2d at 854 (addressing due
process notice claim and finding employer had actual notice of injury date based
on assignment of employee to light duty, petition alleging disability over six year
period and access to employee’s medical records).
Because the commissioner’s relevant fact findings are supported by
substantial evidence, the commissioner did not err in concluding that Chapman’s
petition for workers’ compensation benefits was time-barred for failure to provide
the notice required by section 85.23. The district court erred in reversing this
conclusion.
7
II. Second Petition
As noted, the commissioner dismissed Chapman’s second workers’
compensation petition on claim-preclusion grounds and the district court did not
address the dismissal other than to say the issue was moot. Chapman now
urges us to reverse the ruling granting the motion to dismiss. He argues the
commissioner should have provided him an opportunity to present evidence on
alternate injury dates. Gerdau counters that neither party appealed the district
court’s ruling on the second petition and, accordingly, “this issue is not presently
on appeal” and “should not be considered.” Gerdau alternatively proceeds to the
merits and argues in part that the doctrine of judicial estoppel precludes
Chapman from raising different injury dates.
The Iowa Supreme Court has stated that the issue of judicial estoppel
“may properly be raised by courts, even at the appellate stage, on their own
motion.” Winnebago Indus., Inc. v. Haverly, 727 N.W.2d 567, 573 (Iowa 2006);
see also Tyson Foods, Inc. v. Hedlund, 740 N.W.2d 192, 195 (Iowa 2007)
(holding same). Based on this statement, we will proceed to address the
doctrine.
Judicial estoppel “prohibits a party who has successfully and
unequivocally asserted a position in one proceeding from asserting an
inconsistent position in a subsequent proceeding.” Winnebago Indus., Inc., 727
N.W.2d at 573 (citations omitted). It is applicable in administrative as well as
judicial cases. Id. at 573-74.
In his first petition, Chapman pled his injury date as October 23, 2008 “and
continuing.” At the evidentiary hearing, Chapman did not argue for a cumulative
8
injury date other than October 23, 2008. The commissioner accepted October
23, 2008, as the cumulative injury date. The commissioner’s finding was entirely
consistent with the pleadings and record.2 Chapman’s second petition alleging
new dates for the same injury was inconsistent with the position he pled and
argued in the first proceeding and the position the commissioner accepted. See
Hedlund, 740 N.W.2d at 198 (noting “judicial estoppel applies only when the
position asserted by a party was material to the holding in the prior litigation”).
Chapman was judicially estopped from claiming different dates, and the
commissioner did not err in dismissing the second petition.
III. Disposition
We conclude the commissioner got it right on all counts. We reverse the
district court order reversing the agency’s final decision.
REVERSED.
2
Additionally, the commissioner had no obligation to “fix a time of beginning for the
period of cumulative events that produced the manifestation of injury” or to establish a
chronology of subsequent occurrences. Thilges v. Snap-On Tools Corp., 528 N.W.2d
614, 618 (Iowa 1995). | 01-03-2023 | 08-27-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1600309/ | 120 F. Supp. 61 (1954)
GREEN
v.
ROBBINS.
No. 1048.
United States District Court D. Maine, S. D.
March 25, 1954.
As Amended April 9, 1954.
*62 George F. Green, pro se.
James G. Frost, Deputy to Atty. Gen., for Maine, Roger A. Putnam, Asst. to Atty. Gen., for Maine, for respondent.
CLIFFORD, District Judge.
This matter comes before this Court upon the petition of George F. Green in which he alleges that he is at present illegally restrained in the custody of the Warden of the Maine State Prison. Green is now serving a sentence of not less than five and not more than ten years, after having been found guilty of knowingly uttering a forged check by a jury in Lincoln County Superior Court, Wiscasset, Maine, on May 17, 1949.
The application for a writ of habeas corpus is in proper form and contains the allegations required by 28 U.S.C. § 2242. It is also accompanied by an affidavit of poverty as authorized by 28 U.S.C. § 1915, in lieu of the filing fee of $5.00.
This same petitioner has, on a number of prior occasions, filed habeas corpus petitions in the State Courts of Maine, all of which were denied. This is the eighth petition filed by him in the Federal Court, seeking release from his confinement.
One of his petitions, submitted to Honorable Peter Woodbury, Circuit Judge, United States Court of Appeals for the First Circuit, was denied on its merits on June 10, 1953. Green v. State, D.C., 113 F. Supp. 253.
Subsequently, another petition was filed with Honorable Calvert Magruder, Chief Judge, United States Court of Appeal for the First Circuit on July 28, 1953. It was the opinion of Judge Magruder that said petition could be construed to include two additional grounds of relief, not presented to Judge Woodbury; namely, (1) that the judgment of conviction was void because the State did not afford counsel adequate time and opportunity to consult with the accused and prepare his defense; and (2) that after the jury brought in its verdict of guilty, the court proceeded at once to impose sentence upon the prisoner without waiting for the return of his counsel to the courtroom.
The petition, however, was denied because it did not appear from any of the Federal petitions for habeas corpus that either of these two specific grounds of relief had ever been presented to the State Courts. Judge Magruder therefore ruled that Green had not exhausted his remedies available in the State Courts.
On October 14, 1953, Green presented another petition for a writ of habeas corpus to this Court which was denied on October 19, 1953. An application for a certificate of probable cause was denied by Judge Magruder on October 30, 1953. He stated as his reason for the denial that, from an examination of the voluminous papers in the case, he was not satisfied that Green, in any of the successive petitions for habeas corpus *63 which he addressed to various State Court Judges, ever asserted in a clear-cut and intelligible fashion the two allegations hereinbefore mentioned.
Shortly thereafter, Green presented a petition for a writ of habeas corpus to Associate Justice Tirrell of the Supreme Judicial Court of Maine. Notwithstanding the plain and explicit instructions of Judge Magruder, the two main allegations referred to before were hidden among a number of obviously frivolous and irrelevant allegations. Justice Tirrell entered an order on December 16, 1953, denying Green's petition.
Again Green submitted a petition for a writ of habeas corpus to Judge Magruder on December 21, 1953. The petition was denied on December 30, 1953. But in an accompanying memorandum, Judge Magruder once more very patiently spelled out in explicit terms exactly what Green should allege in filing any further petitions in a Federal Court. The present petition stems from his memorandum opinion, dated December 30, 1953.
Following precisely the instructions of Judge Magruder, Green filed another petition for a writ of habeas corpus, stripped of irrelevancies and containing substantially the same allegations asserted in the present petition, with Justice Tirrell. It was summarily denied, without a hearing, on January 15, 1954.
On January 18, 1954, Green submitted the present petition to Judge Magruder. By his order, leave was granted Green to proceed in forma pauperis, and pursuant to the authority of 28 U.S.C. § 2241(b) the said petition was transferred by Judge Magruder to this Court for hearing and determination.
On March 2, 1954, this Court ordered the Warden of the Maine State Prison to make a return, certifying the true cause of the detention of Green. The return and answer of the Warden were filed on March 11, 1954, the date on which hearing was had on said petition.
In his petition, Green alleges: (1) that he was ordered to trial on a three-hour notice and that he did not have adequate time and opportunity to consult with his attorney to prepare his defense; (2) that his attorney was not present when the jury brought in its verdict of Guilty; (3) that the State Court immediately imposed sentence upon him in the absence of his counsel; and (4) that by reason of his poverty he is unable to bear the cost of obtaining a review by the Supreme Judicial Court of Maine of the order of Justice Tirrell, denying his petition for a writ of habeas corpus; and the State of Maine does not afford an alternative procedure for obtaining a review in forma pauperis.
In order to avoid any possible misunderstanding, a pre-trial conference was had in the Judge's Chambers shortly before the trial, with all parties in attendance, including Green. The conference was reported and it is made a part of the record of this proceeding. All parties were in full accord that the only issues involved concerned the allegations hereinbefore mentioned.
I
At the outset of the hearing, the attorneys for the State filed a motion to dismiss the petition filed by Green on the ground that he had not exhausted the remedies available to him in the Courts of the State of Maine.
They assert that Green did not employ the proper procedure in petitioning Justice Tirrell for a writ of habeas corpus; that Green should have filed a petition for a writ of error; and, therefore, this Court should not entertain Green's present petition until he has first proceeded in the State Courts by way of a petition for a writ of error.
The attorneys for the State frankly admit that there is no provision under the State laws for the petitioner to obtain a review of a lower Court judgment without the necessity of furnishing a transcript of the record. They further admit that if a petition for a writ of error were brought before a single Justice and denied, the State would be unable to reach an agreement with Green *64 for a stipulation of facts to be presented to the Law Court and it would again become necessary for Green to provide a transcript of the record.
In support of their motion to dismiss, the State cited Preston v. Reed, 141 Me. 386, 44 A.2d 685, a decision concerning a civil matter. The case holds that under a writ of error a party may assign errors of fact, though not disclosed by the record, and offer proof of the same provided they do not contradict the record.
Preston v. Reed, supra, clearly is not in point so far as the instant proceedings are concerned. As held in a criminal case decided subsequent to Preston v. Reed, supra, and not cited by the State, the issues raised by a writ of error must be determined on the record of the proceedings in question. Smith v. State, 145 Me. 313, 75 A.2d 538; see also Welch v. State, 120 Me. 294, 113 A. 737. The allegations or issues raised by Green admittedly do not appear on the record, and they do not concern errors of fact. In the opinion of this Court, therefore, Green proceeded properly in the State Court by bringing a petition for a writ of habeas corpus.
It is also conceded that the State does not afford any alternative procedure of a review in forma pauperis. According to a letter written by Honorable Edward F. Merrill, Chief Justice of the Supreme Judicial Court of Maine, to Green, and which is quoted in an opinion by Judge Peter Woodbury, Green v. State, D.C., 113 F. Supp. 253, 255:
"`At present there is no provision allowing proceedings before the Law Court in forma pauperis. The rules of court relative to the filing of records and briefs apply to all persons alike.'"
Therefore, regardless of the method of review employed by Green he would be effectively barred from obtaining a hearing in the Supreme Judicial Court of Maine because of his status as a pauper. Under such circumstances, the petitioner is assumed to have exhausted his remedies. Buchanan v. O'Brien, 1 Cir., 181 F.2d 601; O'Brien v. Lindsey, 1 Cir., 204 F.2d 359. Motion to dismiss is therefore denied.
II
To support his first allegation of lack of time in which to prepare a defense, Green offered himself as a witness and produced three letters, two of which were from State Police officers and written in December of 1953, nearly five years after the arrest of Green. The two letters, admitted in evidence, stated that both officers did not recall having had any specific conversation with Green's counsel, Harry Nixon, prior to the trial at Wiscasset, Maine. Such evidence is purely negative and has slight if any bearing on the issue.
The third letter, dated July 28, 1951, was written by Mr. Harry Nixon to a Mr. George E. Wood, who at that time was an attorney at law in Rockland, Maine. The purpose of this letter, as stated by Green, was to show that he did not have a proper opportunity to prepare a defense. On the contrary, Mr. Harry Nixon stated in the letter that he had several conferences with the State Chief of Police and the F.B.I. concerning the case. If the letter has any value, therefore, it would be evidence against the interest of Green.
Green himself testified that Mr. Harry Nixon and his son, Milton, were present in Wiscasset, at the time he was arraigned in the Lincoln Municipal Court on December 6, 1948; that they were there for the purpose of representing him in those preliminary proceedings; that he simply told his attorneys that he was not guilty and did not relate to them any of the details incidental to the charge brought against him at that time; that during the five months that he was confined in lieu of bail in the Kennebec County jail awaiting grand jury action on the charge then pending against him, he corresponded by letter with his attorney on fifteen different occasions and never once mentioned any of the facts relating to his case; and that *65 although his attorneys were present in the courthouse three hours in advance of trial, they did not discuss the pending case with him at all. He admitted, however, that the opportunity to discuss his case with his counsel before the trial for the purpose of preparing a defense did in fact exist, the only exception being the three weeks just preceding the trial during which he was held incommunicado in the Kennebec County jail.
The testimony of Milton Nixon, who was associated with his father, Harry Nixon, in the trial of the case, was directly contrary to that of Green insofar as his testimony concerning the work preparatory to trial was concerned.
The facts as found by this Court in regard to the first allegation are as follows: George F. Green was arrested in Portland, Maine, on December 5, 1948 on a complaint and warrant for forgery of a $900 check. He was arraigned on that charge on the following day in the Lincoln Municipal Court, located in Wiscasset, Maine.
To represent him at the arraignment, Mr. Green had either his mother or father get in touch with Mr. Harry Nixon, an attorney from Portland, Maine, now deceased. Mr. Green knew Mr. Nixon as an able and competent attorney and had on previous occasions retained him in both civil and criminal matters. He testified that he had sufficient confidence in Mr. Nixon and felt warranted in obtaining him as his counsel in the pending case.
Mr. Nixon, along with his son, Milton, also an attorney, arrived at Wiscasset in the morning of December 6, 1948. They met with Mr. Green, discussed the case with him, and also with the State Police officers.
At the arraignment, Mr. Green pleaded not guilty and waived hearing. Probable cause was found and he was bound over to the May Term of the Superior Court. Being unable to furnish the $5,000 bail, he was taken to the Kennebec County jail, there being no county jail in Lincoln County.
According to Mr. Green's own testimony, he received, late in the night of May 16, 1949, a telegram from his attorneys stating that they would be at the Lincoln County Superior Court, on the following day. The telegram came as no surprise to Mr. Green because he knew that the Grand Jury was in session and anticipated that his matter would be considered by that group. Consequently, when he was told on the morning of May 17, 1949 that he was to be taken to Wiscasset, there was no necessity of his inquiring whether his attorneys would be there also. As Mr. Green testified:
"Well, I retained them to defend me and therefore I thought they would be there and they would know when I was indicted and on which date I would be tried."
Receipt of the telegram, therefore, was notice to him that he could reasonably expect to be tried on May 17, 1949.
Harry and Milton Nixon arrived at the Courthouse about three hours in advance of the trial. During the three hours interval, Mr. Green remained in the sheriff's office, while his counsel conferred with officers concerning matters relating to the case, whether it might be advantageous for him to plead guilty and other matters. Although denied by Green this Court finds that Mr. Harry Nixon, who was the chief counsel, again discussed the case with Green before the jury was impaneled.
At no time did Green protest to his counsel or any one else about being unprepared or going to trial at that time. Also, as Mr. Green testified, there was no indication to him that his attorneys were not prepared to try the case. In any event, Green admits that no motion was made for a continuance on any ground.
During the course of the trial, Green sat outside the rail alongside his attorneys. It was possible for him to communicate with his attorneys, and on one occasion did suggest that two witnesses be obtained in his behalf. He was told, however, that the two witnesses were *66 not needed. For whatever reason, Green did not see fit to make any other suggestions, nor did he take the stand in his defense.
Considering the facts of this case, it is the opinion of this Court that Green had ample opportunity to confer with counsel of his own choice and prepare a defense. As a matter of fact, Green admits that there was sufficient time in which to have done something insofar as preparing a defense is concerned. And it is the opportunity to prepare a defense that is the important and controlling element and not whether or in what manner his defense was prepared.
But even in this latter respect, his own attorney, Mr. Harry Nixon, now deceased, was a well-known and able trial lawyer, particularly experienced in the trial of criminal cases. It is inconceivable that during a period of five months, Mr. Nixon did not at any time ever confer with his client for the purpose of preparing a defense. Green's testimony to that effect is unworthy of credence and, to be charitable to him, it might be said that self-interest has warped his memory. This Court, therefore, concludes that his first assertion has no basis in fact and is wholly without merit.
III
What occurred after the jury returned its verdict is not entirely clear and the testimony is sharply conflicting. The State produced a state trooper who testified that he distinctly remembers that Mr. Green's chief counsel, Harry Nixon, was present when the jury returned its verdict; that a short conference was had at the Bench between counsel and Judge Beliveau; that Mr. Green was asked by Judge Beliveau if he had anything to say for himself; that Green protested his innocence; and that the Judge then proceeded to pronounce sentence of not less than five and not more than ten years while Mr. Harry Nixon was present in the courtroom.
Green himself testified that his counsel were not present when the jury returned its verdict; that Judge Beliveau asked the sheriff to bring Green's counsel into the courtroom; that his counsel did not return to the courtroom before sentence was imposed; that he attempted to make a motion but was ruled out of order by the Judge who then imposed sentence upon him.
To corroborate his testimony, in part, Green produced a letter from the prosecuting county attorney which stated that Green's counsel left the courtroom "when the jury retired and did not return at the time the verdict was pronounced."
Mr. Milton Nixon's recollection of the events that transpired after the jury returned its verdict was admittedly vague. He testified that it was his impression that he and his father were present when the jury returned its verdict; that the Court went about handling other business; that his father conferred with Judge Beliveau in chambers concerning the filing of exceptions, setting of bail and the sentence; that it was his impression that the sentence was to be from two to four years; that to the best of his recollection his father and he were not in the courtroom when the sentence was imposed.
Green produced his brother and sister-in-law, both of whom merely repeated a conversation had with Mr. Milton Nixon late in October, 1953, to the effect that it was Mr. Nixon's impression that his father and he were not present in the courtroom when the sentence was imposed upon Green.
This Court is of the opinion that it is unnecessary to make an express finding of fact as to whether counsel were present when the jury returned its verdict. Even if Green's version of the facts in this regard were accepted, it would be of such minor legal significance as to refute even a possibility of injury. And such an inconsequential impingement of the constitutional right of an accused to have counsel at every stage of the proceeding is merely error without injury. Martin v. United States, 5 Cir., 182 F.2d 225.
*67 IV
Notwithstanding the testimony of the State trooper to the effect that Green's chief counsel was present when the sentence was imposed, this Court having in mind the testimony of Mr. Milton Nixon and the letter of the prosecuting attorney, gives Green the benefit of every possible doubt in this regard. In making this finding of fact, the Court acknowledges that it is "leaning over backward" in favor of Green. However, this Court desires to emphasize that absolutely no reflection should be cast upon the trooper's integrity for this Court is convinced that he gave in detail his recollection as to what transpired at that time.
It was stated in Martin v. United States, supra, "* * * that at this time there is no question of constitutional law any more firmly established than the oft enunciated and applied principle that, in the trial of criminal cases in the federal courts, the defendant is entitled to have the guiding hand of counsel at every stage of the proceeding." Martin v. United States, 5 Cir., 182 F.2d 225, 227. The reasons behind this rule are obvious and well stated in that case. Based upon the finding that counsel were not present when sentence was imposed upon Green, this Court concludes that Green's detention is unlawful.
Despite this conclusion, the outcome is not necessarily an order directing his immediate discharge from the prison. O'Brien v. Lindsey, 1 Cir., 202 F.2d 418, and the other cases cited therein. Pursuant to the authority of the provisions 28 U.S.C. § 2243, this Court has the power to "dispose of the matter as law and justice require." The error committed by the State Court in imposing sentence upon Green in the absence of his counsel does not affect the validity of the verdict of guilty as rendered by the jury. This is not such an error, in the opinion of this Court, as would warrant the issuance of a writ of habeas corpus at this point. Before any final action is taken in this regard, a reasonable period of time should be allowed the State to correct its error in accordance with the order of this Court.
IT IS THEREFORE ORDERED, ADJUDGED, and DECREED that the present application for a writ of habeas corpus be retained on the docket of this Court without disposition until further order of the Court in order to provide the State a reasonable opportunity to take such steps as are appropriate to correct the error in the sentence as found by this Court.
IT IS FURTHER ORDERED that attested copies of this order be mailed by the Clerk of this Court to the Petitioner herein, the Respondent herein, and to the Office of the Attorney General of the State of Maine. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1551171/ | 86 B.R. 829 (1988)
In re Steven J. BUTLER, Debtor.
John H.F. HOWKINS and Agnes D. Howkins, his wife, Plaintiffs,
v.
Steven J. BUTLER, Defendant.
Bankruptcy No. 87-05581S, Adv. No. 88-0421S.
United States Bankruptcy Court, E.D. Pennsylvania.
May 25, 1988.
Joseph L. Carney, Norristown, Pa., for plaintiffs.
John Judge, Philadelphia, Pa., trustee.
Eugene J. Malady, Media, Pa., James G. Buckler, Brookhaven, Pa., for debtor.
OPINION
DAVID A. SCHOLL, Bankruptcy Judge.
The Plaintiffs in this adversarial proceeding seek a determination that the Debtor-Defendant's debt to them is non-dischargeable under 11 U.S.C. § 523(a)(2)(A) and have filed a motion contending that their pre-petition state court judgment against the Debtor entitles them to summary judgment on "the principals [sic] of collateral estoppel and res judicata." The Debtor has filed a cross-motion requesting that summary judgment be entered in his favor. We hold that, although the state court judge trying the dispute giving rise to the Plaintiff's claim made numerous specific findings in his Opinion and found the Debtor chargeable with "fraud in the inducement," he stopped short of indicating whether he necessarily found the Debtor's conduct to constitute intentional "false pretenses," "false misrepresentations," or "actual fraud." We shall therefore deny the cross-motion and schedule the trial of this matter promptly on June 15, 1988.
The Debtor filed the underlying Chapter 7 bankruptcy case on November 6, 1987. The Plaintiffs instituted the instant adversary proceeding on May 15, 1988, about a month after the creditors' meeting scheduled pursuant to 11 U.S.C. § 341(a).
On May 6, 1988, the Plaintiffs filed the motion before us. Noting that the trial *830 was scheduled shortly thereafter, on May 25, 1988, we entered an Order on May 10, 1988, allowing the Debtor until May 20, 1988, to file a response. Counsel for the Debtor responded promptly in the form of a cross-motion for summary judgment and Brief, despite having other commitments which he articulated in unsuccessfully requesting a brief extension to file same.
On September 24, 1987, the Honorable Samuel Salus, II, of the Court of Common Pleas of Montgomery County, in Case No. 84-03914, issued detailed (46) Findings of Fact and (20) Conclusions of Law, supporting a Verdict and Opinion of the Court (hereinafter referred to as "the Opinion"). This case involved claims by the Plaintiffs, husband and wife, as buyers of residential realty, against the Debtor and his non-debtor wife Patricia (collective referred to hereinafter as "the Sellers"), a roofer, and a plumber. Judge Salus found that the buyers and sellers had enjoyed, in the ten years prior to 1983, a cordial business and social relationship. On several occasions in September, 1983, they discussed the prospects of the Plaintiffs' purchasing the Sellers' home, in the course of which the Sellers represented that the house had a completely new slate roof, that the heater worked adequately, and that there was only a small water flow into the basement from a defective downspout. This resulted in the execution of an agreement of sale for the home between the parties on September 27, 1983, at a price of $220,000.00. Thereafter, the Plaintiffs learned that only part of the new slate roof had been installed due to the failure of the Sellers to make the full payment to the roofer; the heating system was defective, resulting in the bursting of pipes and a replacement of the heater; and the basement leak was caused not by a downspout, but by a hole in the basement floor.
With respect to the roof, Judge Salus found that the Sellers had made certain misrepresentations and that "[t]he truth of the statements regarding the roof was questionable." Opinion at 7, ¶ 31. Regarding the problems with the heater, Judge Salus concluded that the Sellers' "representations were inaccurate and not fully divulged." Id. at 8, ¶ 39. Regarding the water leaks in the basement, he found that the Sellers "knew or had reason to know of the `wet' basement but misrepresented its condition." Id. at 9, ¶ 42. The court therefore found that the Sellers "violated the trust and friendship reposed in them by the plaintiffs due to their ten year social relationship and antique dealings." Id. at 9, ¶ 44. However, Judge Salus also held that the Sellers' conduct "[a]lthough reprehensible . . . was not so egregious, wanton, intentional or reckless" as to justify punitive damages. Id. at 9, ¶ 45.
In his Conclusions of Law, Judge Salus found that the "Plaintiffs have proven fraud in the inducement and misrepresentation." Id. at 9, ¶ 1. He therefore awarded the Plaintiffs $20,000.00 for the deficiencies in the roof; $3,000.00 for damages to the interior of the home which resulted when the pipe burst; and $22,800.00 for replacing the heating system, a total of $45,800.00. The roofer and the plumber were totally exonerated from any liability.
The Plaintiffs' present action is based upon 11 U.S.C. § 523(a)(2)(A), which reads as follows:
Sec. 523. Exceptions to discharge.
(a) A discharge under Section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt
. . . . .
(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition; . . .
It is well established that, in order to succeed in an action under this Code provision, the creditor must prove each of the five following elements by "clear and convincing evidence:"
(1) that the debtor made the representations;
(2) that at the time he knew they were false;
(3) that he made them with the intention and purpose of deceiving the creditor;
*831 (4) that the creditor relied on such representations; and
(5) that the creditor sustained the alleged loss and damage as the proximate result of the representations having been made.
In re Fitzgerald, 73 B.R. 923, 926 (Bankr. E.D.Pa.1987). See also In re McCall, 76 B.R. 490, 492 (Bankr.E.D.Pa.1987) (FOX, J.); In re Hammill, 61 B.R. 555, 556 (Bankr.E.D.Pa.1986) (TWARDOWSKI, present CH. J.); and In re Taylor, 49 B.R. 849, 851 (Bankr.E.D.Pa.1985) (GOLDHABER, CH. J.). We have also emphasized that "`[a] necessary element under § 523(a)(2)(A) is actual fraud rather than merely fraud implied in law. 3 COLLIER ON BANKRUPTCY, ¶ 523.08[4] (15th ed. 1985).' In re Emery, 52 B.R. 68, 70 (Bankr.E.D.Pa.1985) [GOLDHABER, CH. J.]." In re Woerner, 66 B.R. 964, 976 (Bankr.E.D.Pa.1986), aff'd, C.A. No. 86-7324 (E.D.Pa. April 28, 1987).
In Brown v. Felsen, 442 U.S. 127, 138-39, 99 S. Ct. 2205, 2213, 60 L. Ed. 2d 767 (1979), the Supreme Court cautioned that dischargeability complaints must be resolved by bankruptcy courts, and hence that res judicata did not apply as to a prior trial court determination of the underlying claims between the parties. This is because a dischargeability complaint generally presents a different "cause of action" than a court proceeding in which the creditor seeks damages. See United States v. Athlone Industries, Inc., 746 F.2d 977, 983 (3d Cir.1984); and In re Laubach, 77 B.R. 483, 485-86 (Bankr.E.D.Pa.1987).
However, as the Third Circuit Court of Appeals pointed out in In re Ross, 602 F.2d 604, 607-08 (3d Cir.1979), Brown v. Felsen did not preclude the application of the doctrine of collateral estoppel arising from the prior trial court determination in the bankruptcy court adjudication of dischargeability. See 442 U.S. at 139 n. 10, 99 S. Ct. at 2213 n. 10. Thus, if all of the following prerequisites are satisfied, a bankruptcy court could conceivably conclude that the findings of a court which has tried the subject matter of a dischargeability complaint could rule in favor of one or the other of the parties on the basis of collateral estoppel:
". . . (1) the issue sought to be precluded must be the same as that involved in the prior action; (2) that issue must have been actually litigated; (3) it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the prior judgment."
Id. at 608 (quoting Haize v. Hanover Insurance Co., 536 F.2d 576, 579 (3d Cir. 1976)).
As our recent decision in In re Gaebler, 83 B.R. 264, 268-69 (Bankr.E.D.Pa. 1988), indicates, we do not consider the application of collateral estoppel to dischargeability complaints to be broad. Only when the court trying the claim concerning which dischargeability is sought has clearly and unmistakeably made legal conclusions or factual findings which coincide precisely with the requirements of a particular provision of § 523(a) would we be inclined to apply collateral estoppel in favor of either the claimant or the debtor in such a case. A re-trial of a matter previously tried for determination of liability for purposes of determining dischargeability may be tedious. However, we believe that it is necessary in almost every case. It is our experience that disposition of dischargeability complaints turns largely on the credibility of the parties. Compare Gaebler, supra, 83 B.R. at 269 (debtor credible; debt discharged) with In re Mistry, 77 B.R. 507, 510, 512-13 (Bankr.E.D.Pa.1987); aff'd sub nom. Writer v. Mistry, C.A. No. 87-6466 (E.D.Pa. Feb. 9, 1988); and In re Somerville, 73 B.R. 826, 833, 837, 838 (Bankr.E.D.Pa.1987) (debtors not credible; debts not discharged). It is necessary to receive live testimony from the most significant party involved, i.e., the the debtor, to make a credibility determination. Therefore, unless the court which has previously tried the matter has made very specific findings on the very issues relevant to the dischargeability complaint, which usually include credibility, we would not apply collateral estoppel. Compare In re Tilbury, 74 B.R. 73, 79 (Bankr. 9th Cir.1987) (collateral estoppel applied in "unusual" case including detailed state court record); and McCall, supra, 76 B.R. at 494-95 (collateral *832 estoppel applied where state court specifically found all of the elements of actual fraud).
The state court decision in the instant case includes a finding that the Sellers were chargeable with "fraud in the inducement." The court states, with a certain degree of precision, as follows:
2. Under Pennsylvania Law the elements of a cause of action for fraud in the inducement include (1) misrepresentation, (2) utterance thereof, (3) an intent by the maker that the recipient will thereby be induced to act, (4) justifiable reliance by the recipient on the misrepresentation and (5) damages as a proximate result.
Opinion at 10, ¶ 2. We believe that the reference to "fraud in the inducement" only distinguishes the conduct of the Sellers from "fraud in the factum," i.e., fraud based on a misrepresentation other than a misrepresentation of the contents of a document. See Annot., Fraud In the Inducement and Fraud in the Factum as Defenses Under UCC § 3-305 Against Holder in Due Course, 78 A.L.R. 3d 1020, 1024-25 (1977). It does not allow us to ascertain whether Judge Salus found actual fraud or "constructive fraud" on the part of the Sellers.
Constructive fraud is defined as an act done or omitted which amounts to positive fraud, or is construed as a fraud by the court because of its detrimental effect upon public interests and public or private confidence, even though the act is not done or omitted with an actual design to perpetrate positive fraud or injury upon other persons. Constructive fraud, sometimes called legal fraud, is nevertheless fraud, although it rests upon presumption and rests less upon furtive intent than does moral or actual fraud. It is presumed from the relation of the parties to a transaction or from the circumstances under which it takes place (footnotes omitted).
37 AM.JUR.2d 23 (1968). See In re Bowen, 151 F.2d 690, 691-92 (3d Cir.1945); Carr-Consolidated Biscuit Co. v. Moore, 125 F. Supp. 423, 433 n. 28 (M.D.Pa.1954); and LaCourse v. Kiesel, 366 Pa. 385, 390, 77 A.2d 877, 880 (1951). Judge Salus takes great pains to make findings regarding the parties' close and possibly fiduciary relationship, which is an important element of "constructive fraud." 37 AM.JUR.2d, supra, at 24. He consistently opts for the term "misrepresentations" to describe the Sellers' conduct, and, at one point, see page 830 supra (page 9 ¶ 31 of Opinion), characterizes the lack of the truth of the representations as no more than "questionable." If "constructive fraud" is in fact all that was found to be present, we would not be able to conclude that the state court's findings support the conclusion that the elements of § 523(a)(2)(A) are made out. In any event, the Opinion lacks conclusivity as to the crucial elements of the Debtor's knowing that the representations were false and acting with the "intention and purpose of deceiving" the Plaintiffs. See page 831 supra, elements (2) and (3). See also In re Hauser, 72 B.R. 165, 167 (Bankr. D.Minn.1985). Cf. Gaebler, supra, 83 B.R. at 268-69; In re Castaneda, 81 B.R. 470, 472-73 (Bankr.N.D.Ill.1988); and Somerville, supra, 73 B.R. at 837-38.
We caution the Plaintiffs to assess their case very carefully. If they do not prevail at trial, they may very well be faced with not only lack of success in collecting their claim, but the obligation to pay the attorney's fee of the Debtor's counsel. See In re Woods, 69 B.R. 999 (Bankr.E.D.Pa.1987).
On the other hand, we refused to conclude that the failure of Judge Salus to award punitive damages should constitute collateral estoppel in favor of the Debtor. The Opinion expressly states that the Sellers made significant misrepresentations regarding the house and that they knew or should have known that they were false. The new slate roof was not completely installed because the Sellers failed to pay more than half of the bill, a fact which they certainly could be expected to know. The court found that the Sellers, by living in the premises for years, were very likely to have known the full extent of the condition of the heating system and the basement. The very use of the term "fraud" in the Opinion, even if embellished by the phrase "in the inducement," may be suggestive of a conclusion that some greater wrongdoing than "constructive fraud" was present.
*833 In deciding the case, Judge Salus did not feel compelled to resolve whether the Sellers "knew" or whether they merely "should have known" or "had reason to know" of the defects in the premises. This is, however, the very issue that we must decide to determine whether the debt is dischargeable under § 523(a)(2)(A). The possibility that the Sellers did know of the defects and nevertheless misrepresented them with the express purpose of deceiving the Plaintiffs cannot be ruled out on the basis of the Opinion, and hence of the record as it stands in this proceeding. We therefore conclude that we cannot decide this proceeding in favor of the Debtor or the Plaintiffs on the ground of collateral estoppel based on this Opinion.
We are therefore compelled to enter the enclosed Order denying both of the Cross-motions for summary judgment and scheduling the matter for trial as promptly as possible. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600330/ | 1 So.3d 186 (2009)
LOPEZ
v.
STATE.
No. 2D08-5926.
District Court of Appeal of Florida, Second District.
January 21, 2009.
Decision without published opinion. App.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922298/ | 190 N.W.2d 864 (1971)
Michael R. PATTERSON, Respondent,
v.
Joseph DONAHUE, et al., Appellants.
No. 42640.
Supreme Court of Minnesota.
October 8, 1971.
*865 Miley & Reding, St. Paul, for appellants.
Bentson & Kalina, Burnsville, for respondent.
Heard before KNUTSON, C. J., and NELSON, OTIS, PETERSON and KELLY, JJ.
OPINION
KELLY, Justice.
Defendants appeal from a judgment in plaintiff's favor and the denial of their motion for a new trial. Reversal is sought on the grounds that plaintiff's attorney argued to the jury the effect of a special verdict, the trial court refused an instruction to the jury specifically removing from them the right to consider future earning capacity, and the damages were given under influence of passion and prejudice and are excessive. We affirm.
On November 15, 1967, plaintiff, Michael R. Patterson, was driving his car on a service road after leaving his employer's plant. He stopped his car near a stop sign at the point where the service road intersects with Old Shakopee Road and waited for a car on Old Shakopee Road to pass. While he was waiting, plaintiff's automobile was struck from the rear by an automobile operated by defendant Joseph Donahue. The force of the blow pushed plaintiff's automobile 45 feet ahead where it came to a stop on Old Shakopee Road. The impact caused plaintiff to be thrown forward in the automobile, and his head scraped the top of the car. At the trial defendants claimed that plaintiff lingered unnecessarily at the intersection and that before the collision plaintiff stopped, started, and then stopped, thus confusing the defendant driver.
When plaintiff arrived home after the accident, he had a stiff neck and soon developed severe headaches. Testimony at the trial illustrated prolonged pain and several *866 unsuccessful attempts at treatment. Plaintiff underwent two operations which failed to provide permanent relief. Medical expenses and lost wages totaled over $8,000.
Defendants contend that prejudicial error occurred when plaintiff's attorney in his argument to the jury explained the effect of a special verdict in the following manner:
"It is grasping at straws to try to show some negligence on his [plaintiff's] part. As counsel explained, we have comparative negligence, and we will go over the proposed verdict.
"You will see what this comparative negligence is. Where there is a percentage. What percent of it is plaintiff's negligence if you find plaintiff negligent was the causation here. What percent of negligence caused by the defendant was the causation factor here. He is trying to show that there might be some percentage [so] as to reduce the amount of damages. It is a wishful thought on the part of the defendant. But, there is no basis and no reason for wasting very much of my time this afternoon with you on it, because I just can't visualize negligence, but pure and simple negligence on the part of the defendant as he drove his car."
1. References to the legal effect of a verdict by counsel during oral argument are improper.[1] Whether or not such improper argument constitutes grounds for a new trial is a matter resting almost wholly in the discretion of the trial court.[2] In this case, where the issue of negligence of the parties is fairly clear, the trial court was not obligated to grant a new trial because of counsel's remark that a finding of negligence on the part of the plaintiff would reduce his damages.
2. Neither was the trial court required to grant cautionary instructions to negate counsel's improper remark. The necessity of such instruction is a matter within the trial court's discretion.[3] The trial court acted within its discretion by instructing generally on the matter.
3. Both parties agreed that future earnings were not at issue in the trial. The trial judge instructed the jury to consider lost wages only up to the date of the trial. Defendants contend that it was reversible error for the trial court to refuse to issue specific cautionary instructions removing the issue of plaintiff's future earning capacity from the jury's consideration. The need for such instructions is said to arise from the following line of argument:
"[Plaintiff's counsel]: * * * Mr. Patterson got laid off in February, on February 20th. Let's sit down and see how we turn out? No, he has been out hunting for work. He has went to four or five placesI don't remember, use your best recollection, I have not got notes, but he told you. He didn't get work. He told them what was wrong and he didn't get work.
"[Defendants' counsel]: If it please the Court, I object to that line of argument. *867 I thought there was no testimony in this case in regard to that.
"THE COURT: Well
"[Plaintiff's counsel]: There was no argument that he lost wages. I am testifying that he went looking for work and he didn't get work. He testified and told them what was wrong with him and that is where I stopped. I will go no farther with this argument.
"THE COURT: All right."
The explanation of counsel which satisfied the trial court negates any possibility of prejudice.
4. Defendants further argue that the award of $57,000 was excessive and caused by bias, passion, and prejudice. The jury heard evidence of great pain and inconvenience. Plaintiff underwent extensive treatment and two dangerous operations. The award is not so excessive that bias, passion, and prejudice are conclusively demonstrated.
5. We have affirmed the trial court's decision on the merits of the parties' arguments. It is, however, appropriate once again to reiterate our views on the propriety of counsel's questioning a juror after the verdict is rendered.[4] Both parties in this case submitted affidavits of their attorneys which relate conversations with a juror. The proper course of action would have been to request from the trial court a hearing to determine the validity of the verdict. During this hearing the jurors could be examined in the presence of the court and all counsel. Attorneys should not take the initiative in questioning jurors. The remote possibility that misconduct requiring reversal may be undetected is more than offset by the importance of shielding jurors from harassment. Moreover, if the procedure outlined in Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960), is followed, litigants will not be precluded from asserting jury misconduct because of the actions of their attorneys.
Affirmed.
NOTES
[1] See, Johnson v. O'Brien, 258 Minn. 502, 105 N.W.2d 244 (1960). See, also, DeGroot v. Van Akkeren, 225 Wis. 105, 273 N.W. 725 (1937) where the Wisconsin Supreme Court disapproved of the reading of its comparative negligence statute to the jury.
This case was decided in the court below before the enactment of L.1971, c. 715, which purports to amend Minn.St.1969, § 546.14, although by statutory authority this provision was superseded as of January 1, 1952, by promulgation by this court of Rule 51, Rules of Civil Procedure.
[2] See, Jangula v. Klocek, 284 Minn. 477, 483, 170 N.W.2d 587, 591 (1969).
[3] See, Sroga v. Lund, 259 Minn. 269, 271, 106 N.W.2d 913, 915 (1961); Mattfeld v. Nester, 226 Minn. 106, 130, 32 N.W.2d 291, 307 (1948).
[4] See, Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922313/ | 52 Wis.2d 372 (1971)
190 N.W.2d 145
BARTELL and husband, Respondents,
v.
LUEDTKE and another, Appellants.
No. 199.
Supreme Court of Wisconsin.
Argued September 13, 1971.
Decided October 5, 1971.
*376 For the appellants there was a brief and oral argument by Frank M. Coyne of Madison.
For the respondents there was a brief by Nugent & Nugent of Waupun, and oral argument by J. E. Nugent.
*377 HANLEY, J.
The sole issue on this appeal is whether it was an abuse of discretion for the trial judge to order a new trial in the interest of justice.
It is well settled that in cases where the trial court has awarded a new trial in the interest of justice, this court will affirm unless there is a clear showing of abuse of discretion. Van Gheem v. Chicago & N. W. Ry. Co. (1967), 33 Wis. 2d 231, 147 N. W. 2d 237. The determination of whether discretion was abused by the trial court is guided by a number of elementary principles which were stated in Hillstead v. Shaw (1967), 34 Wis. 2d 643, 150 N. W. 2d 313, and approved in Quick v. American Legion 1960 Convention Corp. (1967), 36 Wis. 2d 130, 152 N. W. 2d 919; and Loomans v. Milwaukee Mut. Ins. Co. (1968), 38 Wis. 2d 656, 158 N. W. 2d 318:
". . . It is elementary that in such cases the supreme court does not look for evidence to sustain the jury's findings, but seeks reasons for sustaining the trial court. Essentially, the supreme court usually defers to the trial court's decision because of the trial court's opportunity to observe the trial and evaluate the evidence, and the order is highly discretionary. If one ground relied upon by the trial court in granting a new trial in the interest of justice is correct, this is sufficient to affirm the order of the trial court." Hillstead v. Shaw, supra, at page 648.
It has also been stated that a new trial may be granted in the interest of justice because the verdict is against the great weight of the evidence, even though there is sufficient credible evidence to support the jury's finding. Landrey v. United Services Automobile Asso. (1970), 49 Wis. 2d 150, 181 N. W. 2d 407.
In reviewing the order, we are to examine the reasons stated, in the light of the record, in order to determine whether the order constitutes an abuse of discretion. One of the reasons given by the trial court for granting a new trial was that Luedtke was negligent, with respect to management and control, as a matter of law. The view the judge took of the evidence indicated that he *378 believed plaintiffs' testimony as to how the accident occurred and rejected defendants' version. If it were true that Bartell was stopped for twenty or forty seconds before the collision, a finding of guilty as a matter of law could be sustained. However, this testimony is disputed. Luedtke stated that Bartell stopped suddenly; and Mrs. Luedtke testified that their car "drifted" into the Bartell vehicle just after the latter had come to a stop. In addition, both Bartell and Luedtke testified that there was a patch of ice. Skidding can occur without fault on the part of a driver. Voigt v. Voigt (1964), 22 Wis. 2d 573, 126 N. W. 2d 543. Therefore, it could not be stated as a matter of law that Luedtke was negligent as to management or control. Under the evidence this was purely an issue of fact for the jury to determine.
The trial judge was also concerned that the jury had entered "None" in response to the damage question. The trial court recognized, and we emphasize, that the denial of damages does not necessarily show prejudice or perversity on the part of the jury. Dahl v. K-Mart (1970), 46 Wis. 2d 605, 176 N. W. 2d 342. The trial court felt that the jury must have ignored the testimony of Mrs. Bartell's doctor, which the trial judge characterized as "uncontradicted" and "the only credible evidence" relative to hospitalization. However, the record reveals that the doctor stated that it was impossible to tell whether or not the conditions revealed by the X rays were caused by the accident.
The trial judge emphasized that he could not envision Mrs. Bartell going through hospitalization and treatment unless she needed it. There was evidence, however, that she was not averse to going to the hospital. She stated it was "Sort of like a vacation" to be in the hospital. She also admitted that she would rather be hospitalized than have a simple operation performed in the doctor's office. These statements could have substantially influenced the jury on the question of whether *379 Mrs. Bartell suffered any damages at all. As to treatment, both Mrs. Bartell and her doctor testified that many of the office visits were not primarily to treat the injury sustained in the accident. Mrs. Bartell was going through her menopause and received medication and tests on that account. At one time the doctor was concerned about the possibility of pregnancy and tested for that. Treatment was prescribed for anemia and chronic sinusitis and laryngitis. Aside from Mrs. Bartell's non-expert opinion that the accident shocked her into menopause, there is no showing how these conditions were related to the accident.
The trial court made no comment on the damages sustained by the vehicles involved in the accident. The testimony clearly established that the car in which plaintiffs were riding showed nothing except a small dent in the rear bumper. From this fact alone the jury could have reasonably concluded that the impact was too slight to cause the injuries complained of. The jury is entitled to draw legitimate inferences from physical facts. Vogel v. Vetting (1953), 265 Wis. 19, 60 N. W. 2d 399.
The record in this case clearly indicates that the great weight of the credible evidence supports the findings of the jury. The trial court cannot substitute its judgment for the trier of fact. The fact that the trial judge may not concur in the jury's verdict or that a different jury might reach a different conclusion is not grounds for the granting of a new trial. Field v. Vinograd (1960), 10 Wis. 2d 500, 103 N. W. 2d 671.
We conclude that the evidence in this case did not warrant the granting of a new trial in the interest of justice and that it was an abuse of discretion to do so.
By the Court.Order reversed, cause remanded with directions to reinstate the verdict and enter judgment thereon. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2695951/ | [Cite as Beitzel v. Ohio Dept. of Transp., Dist. 11, 2010-Ohio-2022.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
BONNIE BEITZEL
Plaintiff
v.
OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 11
Defendant
Case No. 2009-06036-AD
Deputy Clerk Daniel R. Borchert
ENTRY OF DISMISSAL
{¶ 1} On July 7, 2009, plaintiff, Bonnie Beitzel, filed a complaint against
defendant, Department of Transportation. Plaintiff alleges on or about May 6, 2009 at
approximately 5:40 p.m., while traveling north on State Route 93, outside of Baltic,
Ohio, by the post office, when her vehicle struck a deep pothole causing tire and wheel
damage. Plaintiff seeks damages in the amount of $482.50 due to the negligence of
defendant in maintaining the roadway.
{¶ 2} Defendant filed a motion to dismiss. In support of the motion to dismiss,
defendant stated in pertinent part:
{¶ 3} “Defendant has performed an investigation of this site and this section of
SR 93 falls under the maintenance jurisdiction of the Village of Baltic. (See Exhibit A)
As such, this section of roadway is not within the maintenance jurisdiction of the
defendant.”
{¶ 4} Plaintiff has not responded to defendant’s motion to dismiss. The site of
the damage-causing incident was located in the Village of Baltic.
Case No. 2009-06036-AD -2- ENTRY
{¶ 5} Ohio Revised Code Section 5501.31 in pertinent part states:
{¶ 6} “Except in the case of maintaining, repairing, erecting traffic signs on, or
pavement marking of state highways within villages, which is mandatory as required by
section 5521.01 of the Revised Code, and except as provided in section 5501.49 of the
Revised Code, no duty of constructing, reconstructing, widening, resurfacing,
maintaining, or repairing state highways within municipal corporations, or the bridges
and culverts thereon, shall attach to or rest upon the director . . .”
{¶ 7} The site of the damage-causing incident was not the maintenance
responsibility of defendant. Consequently, plaintiff’s case is dismissed.
{¶ 8} Having considered all the evidence in the claim file and, for the reasons
set forth above, defendant’s motion to dismiss is GRANTED. Plaintiff’s case is
DISMISSED. The court shall absorb the court costs of this case.
________________________________
DANIEL R. BORCHERT
Deputy Clerk
Entry cc:
Bonnie Beitzel Jolene M. Molitoris, Director
2173 Kevin Court N.E. Department of Transportation
New Philadelphia, Ohio 44663 1980 West Broad Street
Columbus, Ohio 43223
DRB/laa
Filed 1/22/10
Sent to S.C. reporter 5/7/10 | 01-03-2023 | 08-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1041571/ | Filed 9/20/13 Pak v. Asaf CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ABDOLAHAD PAK, B245078
Plaintiff and Appellant, (Los Angeles County Super. Ct.
No. BC454381)
v.
JAMSHID J. ASAF,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, Rita
Miller, Judge. Affirmed.
Thomas Law Company and Jeffrey G. Thomas for Plaintiff and Appellant.
Law Offices of Mark Henry Shafron and Mark Henry Sharon for Defendant and
Respondent.
_______________________________
Plaintiff and appellant Abdolahad Pak appeals from the trial court’s judgment in
favor of defendant and respondent Jamshid J. Asaf in this action for breach of contract
with respect to a loan agreement made in 2009 and common counts of money lent and
money had and received after February 2, 2009.1 Pak contends the trial court erred in
failing to rule on his “speaking” motion to amend the complaint to include the issue of
Asaf’s liability under a loan agreement executed in 2008 and presents several challenges
to the trial court’s findings with respect to the agreement in 2008 (2008 Agreement). He
also contests the trial court’s finding that Ednaco, a codefendant in the suit, did not
function as Asaf’s alter ego.
We affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
Events Precipitating the Lawsuit
As we will discuss below, the complaint only refers to the 2009 Agreement, and
no proper oral motion was made to amend it to include breach of an earlier agreement,
nor was breach of an earlier agreement tried by consent. We include details of the earlier
agreements to the extent that they evidence the parties’ prior dealings and therefore aid in
determining whether the 2009 Agreement was enforceable.
Pak and Asaf are immigrants from Iran. They first met through Pak’s brother, a
long-time friend of Asaf from dental school in Iran. Asaf started a dental practice in the
United States, Encino Smile Center, Inc., and Pak sought to work for him as a dental
technician. Asaf did not hire Pak, but they continued to see one another about once a
month. Pak was in need of a job. Asaf suggested to Pak that if he loaned money to
Ednaco, a dried fruit and nut company, Asaf could get Pak a 10 percent return on his
1 Although the loan agreement was made in December 2009, it was executed in
2010. Because the parties and trial court refer to it as the “2009 Agreement,” we will
refer to it as such throughout the opinion.
2
investment. Ednaco was owned by Edna Davidi, a dental patient and friend of Asaf’s.
Davidi and Asaf lived in the same community and attended the same synagogue.
Davidi’s son had helped Asaf’s son and daughter, and as a result, Asaf was very grateful
to the family. Asaf testified that he occasionally worked on a volunteer basis to help
Davidi, but that his only financial interest in Ednaco was as a creditor, who had lent
money to the company. Pak testified Asaf represented himself as having an ownership
interest in Ednaco and had stated, “I own Ednaco,” and “I am Ednaco.” Pak presented
other witnesses who testified Asaf solicited loans for Ednaco, Davidi referred to Asaf as
her partner, and between eight months to a year in 2009, Asaf went to Ednaco once a
week and spent approximately half a day assisting with paperwork.
On or about November 16, or 20, 2005, Pak loaned $120,000. Pak presented a
note written by Asaf on a prescription pad as a memorialization of the transaction: “OK
to pay monthly of $500 interest for $60,000 by check.”2 Both Pak and Asaf signed below
these words. Pak issued a check dated November 29, 2005, payable to Ednaco in the
amount of $60,000, which he gave to Asaf. Ednaco negotiated the check and deposited it
into its own account. On November 30, 2005, Pak prepared a typewritten document in
English, titled “The Agreements,” which provided in relevant part: “This agreement is
between Abdolahad Pak (as Lender) and Dr. James Asaf and Ednaco (as Borrowers).
Mr. Abdolahad Pak lends one check to the amount of $60,000 on 12/1-05 to Dr. James
Asaf and every month take $500 as interest, and he cancel the agreement at any time with
30 days notice before take the money back. Borrowers have commitment to pay 12
check to the amount of each $5000.00. Dr. James Asaf gives a 2nd check as collateral to
the amount of $60,000.” On December 5, 2005, Pak issued a second check payable to
Ednaco in the amount of $60,000, which he gave to Asaf. Again, Ednaco negotiated the
check and deposited it in its own account. At some point, Asaf gave Pak two checks
written on his and his wife’s personal checking account, made out to Pak, for $60,000
each. One of the checks was dated November 20, 2005. The parties do not dispute that
2 The writing was in Farsi, but the parties do not contest this translation.
3
the checks were held by Pak as collateral for the $120,000 in loans he made in November
and December of 2005. Pak does not contest that all payments required under the
agreement were made up until August of 2008, when the parties made a new agreement.
On or about August 18, 2008, the parties orally agreed to a loan of an additional
$149,000 by Pak. The principal ($101,000) and interest were still remaining on the 2005
loans, such that the total indebtedness was $250,000. On August 18, 2008, Pak obtained
three cashier’s checks from his Bank of America account, which were made out to him
and totaled $149,000. The checks were deposited into Ednaco’s account. Pak testified
there was a supplementary oral agreement made around the same time providing the loan
would bear monthly interest of 10 percent, and payments of interest would be made at the
same time the principle payments were due. Pak also testified that the first payment of
interest, due on September 18, 2008, was never made.
Sometime in late 2008, Pak prepared documents, entitled “Promissory Note” and
“Guaranty,” with the help of a Spanish-speaking paralegal, whom he found on the
internet, intended to memorialize the August 2008 loan. The Promissory Note provided
that Pak would lend Ednaco $250,000 to be repaid in 12 monthly installments of
$20,837.00 on the 18th of each month, beginning December 18, 2008. Ednaco was to
open a joint bank account with Pak, into which all of Ednaco’s profits were to be
deposited. Pursuant to the agreement, Ednaco would employ Pak and pay him a salary of
$2,500 per month for the duration of the loan. Pak was to be given priority over all other
creditors. As security, Asaf was to provide paintings valued at $250,000. The
Promissory Note was two pages long. Signature and date lines were provided for Ednaco
by Davidi and for Pak. Pak signed the Promissory Note above his typewritten name but
did not date his signature. Ednaco did not sign the Promissory Note. Asaf initialed the
first and second pages of the Promissory Note. He signed the second page below Pak and
outside of the typewritten signature area. The Guaranty provided that: “In consideration
of any financial accommodations given or to be given or continued by Kourosh Pak
(‘Secured Party’) to Ednaco Distribution, Inc. (‘Debtor’) under the above-referenced
Promissory Note, the undersigned hereby guarantees the due and prompt payment of all
4
indebtedness, obligations, or performance of Debtor to Secured Party.” (Emphasis
added.) Signature and date lines were provided for Edna Davidi; the “Encino Smile
Center (or), by Jamshid a/k/a James Asaf[;] and Jamshid a/k/a James Asaf.” The
Guaranty was signed by Asaf, in his individual capacity only, and dated December 23,
2008. Pursuant to the Guaranty, Asaf gave Pak checks written on his joint checking
account with his wife and on his dental office account as security for the Promissory
Note. Asaf also left paintings on deposit in a warehouse near Ednaco.
Ednaco failed to make timely payments pursuant to the Promissory Note. Ednaco
did not timely make the January 18, 2009 principle or interest payments, nor did it timely
make payments in several months after that. Ednaco also failed to pay Pak the promised
$2,500 per month salary. He was paid considerably less ($1,600), and some payments
were missed entirely. Asaf often made payments to Pak in cash or in checks drawn on
his personal account with his wife or the Encino Smile Center. Asaf never signed checks
for Ednaco.
In December 2009, Pak prepared another Promissory Note and Guaranty, using
the same Spanish-speaking paralegal. The documents used the 2008 Promissory Note
and Guaranty as templates. The Promissory Note provided Pak would lend Asaf
$250,000 to be repaid in 13 monthly installments of $20,000 on the 18th of each month,
beginning January 18, 2010. Asaf was to open a joint bank account with Pak, into which
all of Asaf’s profits were to be deposited. Pursuant to the agreement, Asaf would employ
Pak and pay him a salary of $2,500 per month for the duration of the loan. Pak was to be
given priority over all other creditors. The Promissory Note was two pages long.
Signature and date lines were provided for Dr. James Asaf & Ednaco Distribution, Inc.
(Debtor) by Dr. James Asaf and for Pak (Creditor). Asaf initialed page 1 of the
Promissory Note in the right-hand margin and initialed page 2 next to the word creditor,
which was located in approximately the same place he initialed on page 1. Pak did not
sign the Promissory Note. The Guaranty provided that: “In consideration of any
financial accommodations given or to be given or continued by Kourosh Pak (‘Secured
Party’), to Encino Smile Center, Inc. (‘Debtor’) under the above-referenced Promissory
5
Note, the undersigned hereby guarantee the due and prompt payment of all indebtedness,
obligations, or performance of Debtor to Secured Party.” (Emphasis added.) Signature
and date lines were provided for the “Encino Smile Center by Jamshid a/k/a James Asaf
and Jamshid a/k/a James Asaf.” The Guaranty was signed by Asaf, in his individual
capacity and as Encino Smile Center, and dated January 18, 2010. Asaf never made a
payment under the 2009 note.
The parties disagree as to the nature of the 2009 Agreement. Pak claims the 2009
Agreement was a renewal of the 2008 Agreement, intended to shift the indebtedness from
Ednaco to Asaf, and change the terms of repayment. Asaf alleges the loan was a new
loan for $250,000 to him, to be used for expansion of his dental practice, and possibly for
him to lend money to Ednaco. The parties agree Pak did not lend any additional monies
pursuant to the 2009 Agreement. Asaf continued to make payments to Pak after the 2009
Agreement was signed. Pak argued the payments were made pursuant to the renewal
agreement. Asaf insisted they were payments due under the 2008 Agreement.
In the spring of 2010, Pak’s employment with Ednaco was terminated. In
November of 2011, Pak demanded the balance of the loan be repaid to him.
The Lawsuit
Pak filed the operative complaint against Ednaco, Davidi, and Asaf on February 2,
2011, alleging breach of the 2009 Agreement and common counts of money lent and
money had and received after February 2, 2009. Asaf cross-complained for indemnity
and apportionment of fault as to codefendants, and for usury as to Pak.
The case proceeded to a bench trial. Davidi declared bankruptcy and was
dismissed from the action. Ednaco defaulted, and the trial served as a default prove-up as
to it. Asaf’s usury counterclaim was dismissed prior to the end of trial, at the urging of
the trial court that it ran counter to Asaf’s overall position that no additional money had
been loaned.
6
The trial court issued its decision in favor of Asaf and Ednaco on May 30, 2012,
finding Pak failed to establish his claims by a preponderance of the evidence. The cross-
claims for indemnity and apportionment of fault were rendered moot by the judgment.
The trial court found Pak failed to establish Asaf had an alter ego relationship with
either Ednaco or Davidi, and that any obligation of Asaf under the 2009 Agreement was
in an individual capacity. The court emphasized the only note sued upon was the 2009
Agreement but discussed and made findings with respect to the previous agreements,
because their consideration was necessary in determining the nature of the 2009
Agreement. The court found the August 2008 oral agreements had been breached on
September 18, 2008, because Pak testified that the principle and interest payments due on
that date were never made. The two-year statute of limitations for oral agreements had
therefore run before the complaint was filed on February 2, 2011. With respect to the
December 2008 Promissory Note, the court determined that Ednaco, and not Asaf, was
the debtor, and because Ednaco had not signed the Promissory Note, Asaf was not bound
by the Guaranty, which was limited to debt “under the above-referenced Promissory
Note,” although Asaf believed he was bound and had acted accordingly.
The trial court then ruled Pak failed to establish the 2009 Agreement was a
renewal of the 2008 Agreement by a preponderance of the evidence. The court found
that: 1) the Promissory Note did not purport to be a renewal on its face; 2) it was
unlikely Pak would abandon a ripe claim against Ednaco and create a new document
addressing Ednaco’s debt when it was in breach and had a poor payment history; 3) it
was unlikely Asaf would willingly shoulder the full responsibility of the debt when the
money had gone solely to Ednaco; and 4) it was likely Pak would prefer to lend money
to Asaf, a successful dentist with his own practice, rather than Ednaco, a struggling fruit
and nut company. The court could not conclude under the circumstances the 2009
Agreement was more likely than not a renewal of the 2008 Agreement, rather than a note
predicated on a loan of money that was to occur in the future and was never made.
Finally, the trial court found in favor of Asaf on the common counts for money
lent and money had and received. The common counts were based on the 2009
7
Agreement, and Pak conceded that neither Ednaco nor Asaf received additional monies
pursuant to the note. Moreover, the court noted that even if the common counts had been
based on the 2008 Agreement, the two-year statute of limitations would have run on the
common counts. The court emphasized the rulings in the matter were based primarily on
the burden of proof, and to the extent the testimony conflicted, the court found Asaf to be
the more credible witness.
DISCUSSION
Amendment of the Complaint
Although he concedes the 2009 Agreement was the only agreement sued upon in
the complaint, Pak contends the trial court abused its discretion in failing to rule on his
“speaking” motion to amend the complaint to include breach of the 2008 Agreement.
This contention fails because Pak’s counsel made no such motion. Although courts must
be liberal in granting a request to amend a complaint, the movant is required to clearly
“indicate the nature of the proposed amendment or the manner in which he would amend
his complaint. (See Schultz v. Steinberg (1960) 182 Cal.App.2d 134, 140-141.)” (Tiffany
v. Sierra Sands Unified School Dist. (1980) 103 Cal.App.3d 218, 226 (Tiffany).) Here,
the only amendment Pak’s counsel specifically requested was an amendment correcting
the previous statement in the complaint that interest on the 2009 Agreement was current
through September of 2010, after evidence offered at trial indicated those payments were
not current. The portion of the record Pak points to in support of his position shows only
that he wished to amend to seek unpaid interest accrued before September 2010, not that
he wished to include breach of the 2008 Agreement:
“The Court: So I’m going to read paragraph 12 [of the complaint] with [the
December 18, 2009 promissory note] in mind. [¶] ‘Concurrent with the execution of the
note,’ and that would be on December 18, 2009, ‘defendants verbally promised and
agreed to pay plaintiff interest in the unpaid principal balance due under the note at a rate
8
of 10 percent per anum.’ Defendants in fact paid $2100 per month as interest on the note
for nine months from January 2010 until September 2010. Okay. So I think you’re
trying to point out to me that the complaint says they were current.
“[Defendant’s counsel]: Through September.
“The Court: And that [Pak’s] testimony is now that they were not. [¶] All right.
So the question is, and it’s really a question for [plaintiff’s] counsel, are you asking to
amend the complaint to seek interest before September 2010?
“[Plaintiff’s counsel]: Yes, Your Honor. We would move to conform to proof
and request interest before that date per exhibit 23 is the chart that was made up by
plaintiff and myself based upon receipts we got from the defense in discovery that
showed that the interest really wasn’t current.”
There can be no prejudice in the trial court’s failure to rule on a motion to amend
to include breach of the 2008 Agreement where that particular issue was never addressed
in the motion. (See Tiffany, supra, 103 Cal.App.3d at p. 226.) Accordingly, Pak was not
prejudiced here. 3
We are likewise not persuaded that the issue was tried by consent. Pak argues the
following exchange during opening arguments supports his position:
“[Pak’s counsel]: So essentially at this time what we’re suing on is the 2009
promissory note, the renewal of the earlier ones. We’re also asking for recovery of the
principal amount, interest, legal fees and court costs. [¶] The defense will argue that this
was not a primary undertaking by Dr. Asaf, that yes, he agrees that $250,000 was loaned,
but he will testify that the renewed note was for a completely new advance, 250,000 fresh
dollars, and in his testimony he will say that loan was never made which we agree with.
3 Pak also points to Asaf’s counsel’s failure to establish prejudice with respect to
the amendment to include the pre-September 2010 interest as evidence that the issue of
the 2008 breach was tried by consent. The two are separate issues. Failure to establish
prejudice as to the pre-September 2010 interest cannot serve as proof of trial by consent
of whether there was a breach of the 2008 Agreement.
9
So fulcrum on that plaintiff will testify no, no, no, that was a rollover of the previous
obligation. There was no new loan to be made.
“The Court: If it was a rollover of the previous obligation, then you would be
suing on the 2008 note instead of the 2009 note, wouldn’t you?
“[Pak’s counsel]: We could, but the 2009 note replaced the 2008 note. Once –
“The Court: But if the 2009 note didn’t replace the 2008 note then you would be
suing on the 2008 note?
“[Pak’s counsel]: Agreed. Very astute. I hadn’t thought of that. We would be.
“The Court: Would it make any difference? Would it make any difference if you
were suing on the 2008 or 2009 note?
“[Pak’s counsel]: It wouldn’t matter. . . . [¶] I think essentially that’s our
position.”
This discussion may have initially clarified for Pak’s counsel that if the 2009 note
did not replace the 2008 note, Pak would have to sue on the 2008 note to recover any
unpaid monies under that earlier obligation, but ultimately, counsel concluded it was
irrelevant which note Pak sued upon and never moved to amend the complaint to refer to
the 2008 Agreement.
In trying the issue of whether the 2009 Agreement was a replacement of the 2008
Agreement of the 2008 note, the parties necessarily presented evidence pertaining to the
2008 Agreement, including Asaf’s admission money had been lent under that agreement.
This alone is not enough to support the conclusion that the issue of whether the 2008
Agreement was breached was tried by consent, however. Breach of the 2009 Agreement
and breach of the 2008 Agreement are separate issues, and “‘“evidence which is relevant
to an issue actually raised by the pleadings cannot be considered as authorizing the
determination of an issue not presented.” [Citation.]’ [Citations.]” (Lein v. Parkin
(1957) 49 Cal.2d 397, 401 (Lein).)
Moreover, Asaf did not consent to trying the issue. In his counsel’s opening
argument, which followed Pak’s, counsel reiterated that the only contract sued upon in
the pleadings was the 2009 contract:
10
“The Court: . . . you said that plaintiff has two causes of action: breach of
contract and common counts.
“[Asaf’s counsel]: Common counts is two counts of one cause of action.
“The Court: You’re off on apples [and oranges] again. I’m trying to ask you
about oranges and the breach of contract claim is for the 2009 contract as opposed to the
2008 contract.
“[Asaf’s counsel]: Correct. . . . The 2009 contract doesn’t mention Ednaco. It
talks about a loan to Dr. Asaf. . . .”
Pak’s counsel neither objected nor corrected Asaf’s counsel, nor moved to amend
following this exchange. Asaf’s counsel reiterated the 2009 contract was the only
contract sued upon in his closing arguments, specifically stating that no amendment had
been made, and again, Pak’s counsel made no response of any kind. “‘[I]t is settled law
that where the parties and the court proceed throughout the trial upon a theory that a
certain issue is presented for adjudication, both parties are thereafter estopped from
claiming that no such issue was in controversy even though it was not actually raised by
the pleadings. [Citations.] But such principle of estoppel operates only where it appears
“from the record on appeal . . . that the issue was actually and intentionally tried by the
introduction of pertinent evidence, and that the party against whom the estoppel is
invoked consciously participated or acquiesced in such trial as if the issue had been made
by the pleadings. . . .” [Citations.]’” (Lein, supra, 49 Cal.2d at pp. 400-401.) It is clear
from the proceedings that Asaf did not consent to trying the issue of whether the 2008
Agreement was breached and correctly believed no request to amend the pleadings had
been made in the course of trial.
Finally, Pak argues that Asaf must be bound by the arguments in his cross-
complaint for usurious interest, which Pak asserts “must be construed as judicial
admissions” of Pak’s loan to him in 2009. The cross-complaint referred only to the 2009
Agreement and monies allegedly lent after February 2, 2009, and has no relevance to the
issue of whether the 2008 Agreement was breached. However, if we were to conclude
that Asaf was bound to statements made in the cross-complaint, those admissions would
11
be binding on Pak as well, completely undercutting Pak’s argument that the 2009
Agreement served only as a renewal of the 2008 Agreement. (See Barsegian v. Kessler
& Kessler (2013) 215 Cal.App.4th 446, 452 [“A judicial admission is . . . conclusive both
as to the admitting party and as to that party’s opponent. [Citation.] Thus, if a factual
allegation is treated as a judicial admission, then neither party may attempt to contradict
it—the admitted fact is effectively conceded by both sides.”].)
Pak’s argument would fail regardless, because he was not prejudiced by Asaf’s
delay in moving to dismiss the cross-complaint. From the very start of trial, Pak was
aware that Asaf’s case rested upon the theory that no money was lent pursuant to the
2009 Agreement, as Pak’s counsel stated himself in opening argument: “[Dr. Asaf] will
testify that the renewed note was for a completely new advance, 250,000 fresh dollars,
and in his testimony he will say that loan was never made which we agree with.” Both
parties knew that this was Asaf’s version of the facts and agreed that it was true no
money had been lent. Any assertion to the contrary is disingenuous at best. Ultimately,
the cross-complaint was dismissed, without any argument from Pak’s counsel that relief
from the purported “judicial admissions” would prejudice Pak. There are simply no
admissions of payment in 2009 to which Asaf must be bound.
Enforceability of the 2009 Agreement
We turn to the question of liability under the 2009 Agreement and/or for monies
lent after February 2, 2009. In doing so, we first resolve the question of alter ego
liability.
“Generally speaking, there are two requirements for disregarding the corporate
entity: ‘. . . (1) that there be such unity of interest and ownership that the separate
personalities of the corporation and the individual no longer exist and (2) that, if the acts
are treated as those of the corporation alone, an inequitable result will follow.’ [Citation.]
[¶] Since the determination as to whether or not these requirements have been
established by the evidence is primarily one for the trial court and is not a question of
12
law, the conclusion of the trier of fact will not be disturbed if it is supported by
substantial evidence. [Citations.]” (Jack Farenbaugh & Son v. Belmont Construction,
Inc. (1987) 194 Cal.App.3d 1023, 1032-1033.)
Here, substantial evidence supports the trial court’s finding that Ednaco did not
function as Asaf’s alter ego. Pak offered no evidence as to Ednaco’s form. His only
bases for believing that Asaf had an ownership stake in Ednaco were Asaf’s purported
statements that he “owned” or “was” Ednaco, and his work at Ednaco half a day once a
week for periods in 2009. Asaf guaranteed Ednaco’s debt to Pak in 2008, and Asaf often
paid Pak in cash or with checks drawn from his own account or the Encino Smile Center
account, which would be in keeping with his role as guarantor. Asaf never signed a
check on behalf of Ednaco, however, and explained that he helped with paperwork there
as a favor to Davidi, who had helped his own family substantially. Pak showed no
evidence that Asaf ever personally benefitted from the loans made to Ednaco, nor did he
show any commingling of the monies loaned. Pak himself clearly recognized Asaf as
separate from Ednaco, otherwise there would have been no point in changing the names
of the borrowers on the several loan agreements between the parties. Thus, Asaf’s
liability can only be based on his liability as an individual.
We next look to the contract itself, applying fundamental principles of contract
interpretation, “‘“[which] are based on the premise that the interpretation of a contract
must give effect to the ‘mutual intention’ of the parties. ‘Under statutory rules of contract
interpretation, the mutual intention of the parties at the time the contract is formed
governs interpretation. (Civ. Code, § 1636.) . . .’”’ [Citation.]” (TRB Investments, Inc.
v. Fireman’s Fund Ins. Co. (2006) 40 Cal.4th 19, 27.) “The mutual intention to which
the courts give effect is determined by objective manifestations of the parties’ intent,
including the words used in the agreement, as well as extrinsic evidence of such objective
matters as the surrounding circumstances under which the parties negotiated or entered
into the contract; the object, nature and subject matter of the contract; and the subsequent
conduct of the parties.” (Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912.)
13
“When a dispute arises over the meaning of contract language, the court must
decide whether the language is ‘reasonably susceptible’ to the interpretations urged by
the parties. [Citation.] ‘“. . . Whether the contract is reasonably susceptible to a party’s
interpretation can be determined from the language of the contract itself [citation] or from
extrinsic evidence of the parties’ intent [citation].”’ [Citations.]” (Badie v. Bank of
America (1998) 67 Cal.App.4th 779, 798.) “‘If the court decides the language is
reasonably susceptible to the interpretation urged, the court moves to the second
question: what did the parties intend the language to mean? [Citation.] . . .’ [Citation.]”
(Oceanside 84, Ltd. v. Fidelity Federal Bank (1997) 56 Cal.App.4th 1441, 1448.)
“The trial court’s ruling on the threshold determination of ‘ambiguity’ (i.e.,
whether the proffered evidence is relevant to prove a meaning to which the language is
reasonably susceptible) is a question of law, not of fact. (Madison v. Superior Court
(1988) 203 Cal.App.3d 589, 598.) Thus the threshold determination of ambiguity is
subject to independent review. (Equitable Life Assurance Society v. Berry (1989) 212
Cal.App.3d 832, 840.)” (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165 (Winet); see
also ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266-1267.)
“When the competent parol evidence is in conflict, and thus requires resolution of
credibility issues, any reasonable construction [by the trial court] will be upheld as long
as it is supported by substantial evidence. (Stratton v. First Nat. Life Ins. Co. (1989) 210
Cal.App.3d 1071, 1084.)” (Winet, supra, at p. 1166.)
Here, the language of the 2009 Agreement is unambiguous: Pak was to loan
$250,000 to Asaf, to be guaranteed by the Encino Smile Center. The contract appears to
stand alone. There is no mention of the 2008 Agreement or any other previous debt and
no mention of renewal. Ednaco is not a borrower on the note. There is nothing in the
2009 Agreement that would lead a reasonable person to believe that it was intended as a
renewal.
Looking to extrinsic factors, we conclude the trial court’s finding that Pak failed to
meet his burden by a preponderance of the evidence is supported by substantial evidence.
Given the agreements were drafted by laypersons and non-native English speakers, it is
14
possible that either interpretation was intended despite lack of any reference to the 2008
Agreement, but, as the trial court elucidated in its opinion, Asaf’s interpretation of the
2009 Agreement is the more rational one. No evidence was presented that Asaf received
any of the monies loaned pursuant to the 2008 Agreement, so it seems illogical that he
would willingly take over full responsibility for repayment of the loan. In fact, in the
parties’ prior course of dealing, the opposite had occurred. Both Asaf and Ednaco had
been listed as borrowers on the 2005 note, but when the amount due and owing was
rolled into the new 2008 Agreement and additional monies were loaned, Ednaco, who
received all of the monies, was listed as the sole borrower on the new note. It would not
make sense for Asaf to willingly shift the burden of that loan back to himself while
Ednaco was still failing to make timely payments. Moreover, it is unlikely that Pak
would have renewed the agreement with Ednaco, which had a poor payment history,
rather than pursuing a ripe claim against the company. It makes much more sense that
Pak would instead loan money to Asaf, who had paid Ednaco’s monthly installments, and
was backed by the Encino Smile Center, his own successful dental practice.
Consideration of the contract language and the extrinsic factors together tips the
scale in favor of Asaf’s interpretation, if any. We conclude the trial court’s reasonable
construction of the 2009 Agreement is supported by substantial evidence. The court’s
ruling on the common counts is also supported. The parties agree that no monies were
lent within the two years prior to the filing of the complaint, so Asaf could not have
breached the agreement by failing to make payments.
15
DISPOSITION
We affirm the judgment. Costs on appeal are awarded to Jamshid Asaf.
KRIEGLER, J.
We concur:
TURNER, P. J.
KUMAR, J.*
* Judge of the Los Angeles County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
16 | 01-03-2023 | 09-20-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1041611/ | Electronically Filed
Intermediate Court of Appeals
CAAP-11-0000387
20-SEP-2013
08:29 AM | 01-03-2023 | 09-21-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/283023/ | 405 F.2d 763
Clinton GILCHRISTv.MITSUI SEMPAKU K. K. (Defendant and Third-Party Plaintiff),v.JARKA CORPORATION (Third-Party Defendant), Appellant.
No. 17113.
United States Court of Appeals Third Circuit.
Argued September 27, 1968.
Decided December 31, 1968.
Certiorari Denied March 24, 1969.
See 89 S. Ct. 1195.
F. Hastings Griffin, Jr., Dechert, Price & Rhoads, Philadelphia, Pa., for appellant.
George D. Sheehan, Rawle & Henderson, Philadelphia, Pa., for appellee.
Before BIGGS, GANEY and FREEDMAN, Circuit Judges.
OPINION OF THE COURT
GANEY, Circuit Judge.
1
Plaintiff, a longshoreman, obtained a verdict against the defendant-shipowner for either its negligent conduct or the unseaworthiness of the Matsudasan Maru, a ship upon which he was injured during the unloading operation of bulk sugar. The shipowner in turn recovered a verdict for indemnity against the third-party defendant stevedoring company, plaintiff-longshoreman's employer at the time he was injured. The same jury returned both verdicts. An amount, agreed to by the shipowner and the stevedoring company, was added to the judgment of indemnity. The stevedoring company appeals from the judgments denying its motion for judgment n.o.v. and its motions for a new trial, and the awarding the shipowner its expenses for defending the principal action.1
2
At the trial, lasting seven days, there was evidence that the hold of the ship in question carried approximately 1,300 tons of bulk sugar and that it was unloaded by means of a large clamshell crane working in a vertical plane. When the loose sugar in the sides of the hold became inaccessible to the jaws of the crane, longshoremen pushed it to the center of the hatch with bulldozers. When the major portion of the loose sugar was removed from the hold, a gang of longshoremen was sent into the hold to sweep and shovel up the remaining sugar on the floor and scrape the sugar which had caked on the bulkheads. The plaintiff-longshoreman, Clinton Gilchrist, was injured when a scraper fell from the hands of one of his fellow workers and struck him on the head. Gilchrist testified, on cross-examination by counsel for the stevedoring company, that if the sugar had been unloaded and scraped in stages, the longshoremen would not have been required to reach as high as they did in order to scrape the caked sugar from the sides of the ship. There also was evidence that the scraper which struck Gilchrist was dull and shorter than the others, and that the longshoremen in the hold did not wear helmets.
3
From this evidence the jury could have found: (1) The ship was negligent or unseaworthy, or both, because when it was turned over to the stevedoring company, its loading was such as to permit sugar to cake on the bulkheads; (2) The stevedoring company was negligent in unloading the sugar in the manner that it did, such as (a) scraping the caked sugar from the bulkheads, (b) lowering the level of the sugar to such a depth before ordering the workers to scrape the sides, (c) failing to inspect the scrapers and requiring the longshoremen to use sharp scrapers with sufficient length handles, (d) requiring the men to work too close together, and (e) failing to require the longshoremen to wear protective headgear.
4
The stevedoring company maintains that the jury could have concluded that the conduct of the shipowner in turning over to the stevedoring company a ship with caked sugar on its bulkheads was the basic or real cause of plaintiff-longshoreman's injury, even though that same body might have found that the stevedoring company's conduct was a substantial factor in causing the injury. If the jury came to these conclusions, the argument runs, it had no alternative but to find for the stevedoring company on the issue of indemnity, and the jury should have been so instructed. The trial judge did not misapply the substantive law of indemnity in refusing to charge in this vein. See Crumady v. The J. H. Fisser, 358 U.S. 423, 428-429, 79 S. Ct. 445, (1959); Italia Soc. per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 320-321, 84 S. Ct. 748, 11 L. Ed. 2d 732 (1964); Johnson v. Sword Line, Inc., 257 F.2d 541, 545 (C.A.3, 1958).
5
The stevedoring company also argues that the jury could have found that on the day plaintiff-longshoreman was injured, it performed the unloading operation in the usual manner, which was reasonably proper, and there was nothing unusual until a longshoreman tried to chop away at the caked sugar, and the scraper was not sharp enough to cut into the unforeseeably latently hard bit of sugar. The fault with this argument is that no evidence was produced that the caked sugar was unforeseeably hard.
6
The stevedoring company also claims that the charge on causation was wrong. The trial judge told the jury that the shipowner is entitled to indemnity if they found that the unseaworthiness of the ship or the negligence which caused the shipowner to be liable was "brought into play" by the stevedoring company's breach of warranty of workmanlike service. He also told the jury that it should find for the shipowner if they concluded that the stevedoring company's breach of its duty of workmanlike conduct "was one of proximate cause of the injury [to plaintiff-longshoreman] and caused the liability of the shipowner." In this connection he told the jury to bear in mind the definitions given in his charge in the principal action where "proximate cause" was defined in part as being such conduct "as to lead reasonable men to regard it as a cause." Because of this charge the stevedoring company maintains that the jury was told that no matter how much they thought the shipowner's liability was in fact caused by the ship itself, they should nevertheless give the shipowner indemnity if the stevedoring company's breach of warranty contributed to that liability even if it were as little as five to ten percent.
7
Counsel for the stevedoring company did not object to the use of the term proximate cause or its definitions in the charge either in the principal action2 or in the third-party action. The jury had already found in the principal action that the shipowner was liable to the injured plaintiff-longshoreman. This liability stemmed only from the conduct of the stevedoring company. Even if the jury found that the caked sugar made the ship unseaworthy, this condition could not have injured the plaintiff-longshoreman unless it was brought into play or acted upon by the longshoremen. Consequently, the issues remaining to be decided by the jury were: (1) Did the stevedoring company breach its warranty of workmanlike service, and (2) Was there any conduct on the part of the shipowner which was sufficient to wipe out its right to indemnification. The stevedoring company should not be heard to complain of a portion of a charge which was more favorable than that to which it was entitled.
8
Next, the stevedoring company complains about the charge on latent condition. The trial judge told the jury that a shipowner can recover indemnity from a stevedoring company for its breach of warranty of workmanlike service even though the defect causing the injury was latent and the stevedoring company was without fault. The reason for its objection is that such a charge was inapplicable to the indemnity action. As pointed out by counsel for the stevedoring company, the only possible latent condition in the case was the degree of hardness in the caked sugar on the bulkhead, and on this factual issue evidence was lacking. The scrapers which the stevedoring company brought aboard the ship may have been too dull or too short for the purpose for which they were to be used, but such defects were open to view and not latent. We agree that this portion of the charge was unnecessary.3 However, we are of the opinion that the stevedoring company was not prejudiced by such reference when the charge is considered in its entirety. In summarizing the situation to the jury, the trial judge said:
9
"* * * The shipowner's negligence is not fatal to recovery against the stevedore in this area of contractual indemnity, and thus there is no application of any theory of primary or secondary negligence. A shipowner can recover from a stevedore for breach of warranty even though the [defect] causing the [injury] was latent, and the stevedore was without fault. The stevedore's implied warranty of workmanlike performance is sufficiently broad to make him liable where there is a failure to furnish reasonably safe equipment pursuant to its contract with the shipowner notwithstanding the fact that the stevedore was not negligent.
10
"Now let me give you an example of what I mean. Let's take the cable case again. Let's assume a stevedoring company brings onto a ship a cable to life 3 tons and when it looked at it and inspected it in a reasonable manner they would have reason to believe that the cable would in fact, lift 3 tons, but when it lifted 3 tons it snapped in the center and then only after it was broken it became obvious that some of the internal strands were defective * * *. The stevedoring company was not negligent because they inspected it, but, nevertheless, they could be liable because the cable was not reasonably safe equipment to do the job it was intended to be used for."4
11
We can construe this portion of the charge in the light that the trial judge was telling the jury to what extent the law goes in permitting recovery of indemnity against a stevedoring company by a shipowner and not as specifically referable to the facts of this case. Since there was no evidence of any latent defect in the scraper brought aboard ship by the stevedoring company, the jury could not have been misled by this discussion. Thus the effect of this portion of the charge was to inform the jury that if they believed that any of the equipment supplied by the stevedoring company was not reasonably safe for the purpose for which it was intended, the stevedoring company could be held liable to the shipowner for indemnity, even though the former was not negligent in failing to discover the defect.
12
The stevedoring company claims that the trial judge's failure to tell the jury that the shipowner owes the stevedoring company a duty to supply it with a vessel reasonably free of defects was reversible error. We disagree. The shipowner is not deprived of its right of indemnity by the fact that there may have been an improper stow. See Italia Soc. per Azioni di Navigazione v. Oregon Stevedoring Co., supra, 376 U.S. 315, 323, 84 S. Ct. 748; D/S Ove Skou v. Hebert, 365 F.2d 341, 348-350 (C.A.5, 1966).
13
The stevedoring company complains of the trial judge's use of the words "brought into play". The trial judge told the jury that the shipowner is entitled to indemnity if they found that
14
"* * * the fault of the stevedoring concern brought the unseaworthiness of the vessel into play and the fault amounted to a breach of warranty of workmanlike service. Or, similarly, if you found that the negligence which caused the liability of the shipowner was brought into play by a breach of the warranty of workmanlike service — the key words are `brought into play' — in such circumstances the vessel owner may similarly recover."
15
When the trial judge repeated in substance this portion of the charge, counsel for the stevedoring company objected "to the use of the words `brought into play' without any explanation of those words." At this point, the trial judge asked him how he defined them. Counsel replied that in the particular confines of this case he didn't know how to define them, and added, "I don't think it is an applicable charge."
16
Here again that portion of the charge claimed to be erroneous was not validly objectionable. Whatever condition or situation was the basis for liability of the shipowner to the plaintiff-longshoreman, the condition was brought into play or the situation was brought about by the stevedoring company. As we have mentioned earlier herein, the issue before the jury in the indemnity action was whether the stevedoring company had breached its warranty of workmanlike service. The stevedoring company was not harmed by this portion of the charge.
17
In the midst of their deliberations, the jury forwarded a note to the trial judge asking him who would be liable if they felt that both parties were at fault. He obliged by giving additional instructions. The stevedoring company objected to the additional charge on the ground that it did not answer the jury's question because allegedly it did not permit the jury to "come to grips" with the question as to which party is more at fault by reason of the condition of the load or the method of the work followed by the longshoremen.
18
This objection brings into bold relief the stevedoring company's main difficulty in this case. The law of indemnity is not concerned with the comparison or degree of fault of the shipowner and the stevedoring company. The trial judge explained to the jury several times that if they found that the stevedoring company had performed its contract in a workmanlike manner the shipowner had no right to recover against the stevedoring company. He informed them in substance that the shipowner could not recover unless the conduct of the stevedoring company amounted to a breach of warranty of workmanlike service. He also told them that the right of indemnity could be defeated if they found that there had been inducement or participation on the part of the shipowner. In so charging the trial judge committed no error requiring a new trial.
19
The stevedoring company complains of the court's denial of its motion to file a supplemental pleading so as to allege, as a defense to the indemnity claim, that the shipowner was not acting in good faith, and its refusal thereafter to grant it a continuance. We are satisfied that these motions were within the trial judge's discretion and were properly denied.
20
Its motion for a new trial based on after discovered evidence was also properly denied. The evidence referred to in the motion was not in the legal sense "after discovered evidence." See Brown v. Pennsylvania R. Co., 282 F.2d 522 (C.A.3, 1960); Gibson v. International Freighting Corp., 173 F.2d 591, 592-593 (C.A.3, 1949); Kender v. General Expressways, Ltd., 34 F.R.D. 237 (E.D.Pa. 1963). Also see United States v. Rutkin, 208 F.2d 647 (C.A.3, 1953).
21
Finally, the stevedoring company complains of the award of an additional jury trial giving the shipowner an opportunity to offer evidence on the amount of its defense expenses about which it offered no evidence at the trial. After the jury had returned its verdict on March 24, 1966, and had been discharged, counsel for the victorious shipowner asked that "the judgment be formed to include the shipowner's counsel fees and expenses in defending the principal action." The stevedoring company objected on the ground that no evidence had been presented on the amount of the fees and expenses and their reasonableness. On March 28, 1966, a judgment on the verdict was entered. The judgment contained the notation: "* * * the third-party plaintiff to have right of indemnity against third-party defendant for the amount paid to plaintiff and costs, (the Court reserves its ruling on the third-party plaintiff's request for attorney's fees and expenses) * * *." The shipowner did not file a motion with respect to the above until April 19, 1966, when it filed a paper entitled "Motion for Entry of Judgment" and in which it asked, in addition to the amount it had paid plaintiff-longshoreman without interest, for costs, and counsel fees and expenses set out in the motion. On April 3, 1967, over a year after judgment was entered on the verdict in the indemnity action, the district judge signed an order directing counsel to make every reasonable effort to come to an agreement on the question of counsel fees, and should they be unable to agree, "a separate jury trial on that issue in accordance with 42(b) of the Federal Rules of Civil Procedure will be scheduled in this action." In the memorandum opinion which followed on April 26, 1967, the judge did not explain why he signed the order for a partial trial except as follows:
22
"This Memorandum Opinion is filed in accordance with that Order [of April 3, 1967] and I am still waiting to hear, formally, from counsel, whether they can agree on the issue of counsel fees. This issue has been severed for a subsequent trial, if necessary, should the parties be unable to come to agreement on the amount of legal fees and related costs to be recovered in the indemnity action."
23
On November 20, 1967, the issue of counsel fees was called for trial. Prior to trial counsel agreed that the shipowner had incurred an attorney's fee and expenses in the amount of $3,751.03, and that judgment be entered for this additional amount. On November 24, the following order and judgment was entered:
24
"At the call of the trial on the issue of counsel fees and expenses, counsel for third-party defendant duly objected to the trial's being held on the grounds (1) that the judgment for indemnity, in accordance with third-party defendant's post-trial motions, was erroneously entered, and (2) that the court lacked power or was in error in ordering the post-verdict jury trial of counsel fees and expenses. He stated, however, that subject to those objections his client, in order to avoid the expense and inconvenience of the jury trial which has been ordered, would not dispute that defendant incurred reasonable counsel fees and expenses of $3751.03. Counsel for defendant agreed that defendant would limit its claim to that amount in compromise of its claim of $4412.98. In accordance with my prior ruling the objections of third-party defendant are overruled. Accordingly I order the following:
25
"JUDGMENT.
26
"The clerk is directed to enter judgments in favor of Mitsui Sempaku K. K. and against Jarka Corporation (1) in the amount of $27,556 with interest from April 19, 1966, and (2) in the amount of $3751.03."
27
In the case of Ellerman Lines, Ltd. v. Atlantic & Gulf Stevedores, Inc., 339 F.2d 673, Judge Hastie, now Chief Judge of this Court, said at p. 674: "If conduct of [the stevedoring company] in violation of its warranty to [the shipowner] was the sole responsible cause of [the longshoreman's] injury, as the libel alleges, the expense to which [the shipowner] is subjected in defending [the longshoreman's] suit against it to recover for that injury is an element of damages caused by the [stevedoring company's] breach of warranty, even if [the shipowner] succeeds in defeating [the longshoreman's] claim." (Cited cases omitted and emphasis added.) There has been no showing in the actions here involved that the conduct of the stevedoring company was the sole responsible cause of the plaintiff-longshoreman's injury. Therefore, the shipowner was not entitled to recover the expenses to which it was subjected in defending the plaintiff-longshoreman's action against it from the stevedoring company. Hence we need not determine whether the verdict was res adjudicata on the defending expense issue and whether the district court had the power to sever that issue and grant a separate jury trial on its own motion, and even though it did have such power in this action, whether it had to be exercised within ten days from the entry of judgment on the verdict.
28
The stevedoring company's agreeing to the amount of the shipowner's defense expenses and the entry of judgment for that amount if it should turn out that the shipowner is entitled to be reimbursed for those expenses does not render the issue moot. The position of the stevedoring company is made clear by the recital in the judgment of November 24, 1967.
29
Accordingly, the judgments of the district court denying the motion of the stevedoring company (Jarka Corporation) for judgment n. o. v. and its motions for a new trial will be affirmed; and the second part of the judgment of November 24, 1967, awarding the shipowner (Mitsui Sempaku K. K.) an additional amount in the sum of $3,751.03 will be reversed.
Notes:
1
The reasons given by the district court for denying the motion for judgment n.o.v. and the first motion for a new trial appears in a Memorandum Opinion at 266 F. Supp. 961 (E.D.Pa.1967)
2
Contrary to the position taken by counsel for the stevedoring company at the trial, his client was in the principal action, and he could have interposed any objection to the charge which the shipowner could have made. See Rule 14 of the Federal Rules of Civil Procedure concerning third-party practice; Lecklikner v. Transandina Compania Naviera, S. A., 390 F.2d 179 (C.A.3, 1968)
3
Apropos the stevedoring company's objection on this point, counsel for the shipowner informed the trial judge: "I would have no objection to telling the jury there was no latent condition here. I think the law in Italia [Italia Soc. per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 84 S. Ct. 748] still applies as a general principal of law."
4
In summarizing again, the trial judge said to the jury: "The stevedore's implied warranty of workmanlike performance is sufficiently broad to make him liable where there is a failure to furnishreasonably safe equipment pursuant to its contract with the shipowner notwithstanding the fact that the stevedore was not negligent." (Emphasis added.) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2690391/ | [Cite as In re Courtney, 136 Ohio St. 3d 1220, 2013-Ohio-2551.]
IN RE COURTNEY.
[Cite as In re Courtney, 136 Ohio St. 3d 1220, 2013-Ohio-2551.]
(No. 2013-0995—Submitted June 19, 2013—Decided June 21, 2013.)
ON CERTIFIED ENTRY OF FELONY CONVICTION.
____________________
{¶ 1} On June 18, 2013, and pursuant to Gov.Bar R. V(5)(A)(3), the
Secretary of the Board of Commissioners on Grievances and Discipline of the
Supreme Court of Ohio filed with the Supreme Court a certified copy of a
judgment entry of a felony conviction against Darren Lee Courtney, an attorney
licensed to practice law in the state of Ohio.
{¶ 2} Upon consideration thereof and pursuant to Gov.Bar R.
V(5)(A)(4), it is ordered and decreed that Darren Lee Courtney, Attorney
Registration No. 0064364, last known business address in Mason, Ohio, is
suspended from the practice of law for an interim period, effective as of the date
of this entry.
{¶ 3} It is further ordered that this matter is referred to disciplinary
counsel for investigation and the commencement of disciplinary proceedings.
{¶ 4} It is further ordered that respondent immediately cease and desist
from the practice of law in any form and that he is forbidden to appear on behalf
of another before any court, judge, commission, board, administrative agency, or
other public authority.
{¶ 5} It is further ordered that effective immediately, respondent is
forbidden to counsel or advise or prepare legal instruments for others or in any
manner perform legal services for others.
SUPREME COURT OF OHIO
{¶ 6} It is further ordered that respondent is divested of each, any, and all
of the rights, privileges, and prerogatives customarily accorded to a member in
good standing of the legal profession of Ohio.
{¶ 7} It is further ordered that before entering into an employment,
contractual, or consulting relationship with any attorney or law firm, respondent
shall verify that the attorney or law firm has complied with the registration
requirements of Gov.Bar R. V(8)(G)(3). If employed pursuant to Gov.Bar R.
V(8)(G), respondent shall refrain from direct client contact except as provided in
Gov.Bar R. V(8)(G)(1) and from receiving, disbursing, or otherwise handling any
client trust funds or property.
{¶ 8} It is further ordered that pursuant to Gov.Bar R. X(3)(G),
respondent shall complete one credit hour of continuing legal education for each
month, or portion of a month, of the suspension. As part of the total credit hours
of continuing legal education required by Gov.Bar R. X(3)(G), respondent shall
complete one credit hour of instruction related to professional conduct required by
Gov.Bar R. X(3)(A)(1) for each six months, or portion of six months, of the
suspension.
{¶ 9} It is further ordered that respondent shall not be reinstated to the
practice of law in Ohio until (1) respondent complies with the requirements for
reinstatement set forth in the Supreme Court Rules for the Government of the Bar
of Ohio, (2) respondent complies with this and all other orders issued by this
court, (3) respondent complies with the Supreme Court Rules for the Government
of the Bar of Ohio, and (4) this court orders respondent reinstated.
{¶ 10} It is further ordered by the court that within 90 days of the date of
this order, respondent shall reimburse any amounts that have been awarded by the
Clients’ Security Fund pursuant to Gov.Bar R. VIII(7)(F). It is further ordered by
the court that if after the date of this order, the Clients’ Security Fund awards any
amount against respondent pursuant to Gov.Bar R. VIII(7)(F), respondent shall
2
January Term, 2013
reimburse that amount to the Clients’ Security Fund within 90 days of the notice
of that award.
{¶ 11} It is further ordered that on or before 30 days from the date of this
order, respondent shall do the following:
{¶ 12} 1. Notify all clients being represented in pending matters and any
co-counsel of respondent’s suspension and consequent disqualification to act as
an attorney after the effective date of this order and, in the absence of co-counsel,
also notify the clients to seek legal service elsewhere, calling attention to any
urgency in seeking the substitution of another attorney in respondent’s place;
{¶ 13} 2. Regardless of any fees or expenses due respondent, deliver to
all clients being represented in pending matters any papers or other property
pertaining to the client or notify the clients or co-counsel, if any, of a suitable time
and place where the papers or other property may be obtained, calling attention to
any urgency for obtaining those papers or other property;
{¶ 14} 3. Refund any part of any fees or expenses paid in advance that
are unearned or not paid and account for any trust money or property in
respondent’s possession or control;
{¶ 15} 4. Notify opposing counsel or, in the absence of counsel, the
adverse parties in pending litigation of respondent’s disqualification to act as an
attorney after the effective date of this order and file a notice of disqualification of
respondent with the court or agency before which the litigation is pending for
inclusion in the respective file or files;
{¶ 16} 5. Send all such notices required by this order by certified mail
with a return address where communications may thereafter be directed to
respondent;
{¶ 17} 6. File with the clerk of this court and disciplinary counsel of the
Supreme Court an affidavit showing compliance with this order, showing proof of
3
SUPREME COURT OF OHIO
service of notices required herein, and setting forth the address where the affiant
may receive communications; and
{¶ 18} 7. Retain and maintain a record of the various steps taken by
respondent pursuant to this order.
{¶ 19} It is further ordered that respondent shall keep the clerk and
disciplinary counsel advised of any change of address where respondent may
receive communications.
{¶ 20} It is further ordered that all documents filed with this court in this
case shall meet the filing requirements set forth in the Rules of Practice of the
Supreme Court of Ohio, including requirements as to form, number, and
timeliness of filings. All case documents are subject to Sup.R. 44 through 47,
which govern access to court records.
{¶ 21} It is further ordered that service shall be deemed made on
respondent by sending this order, and all other orders in this case, to respondent’s
last known address.
{¶ 22} It is further ordered that the clerk of this court issue certified copies
of this order as provided for in Gov.Bar R. V(8)(D)(1), that publication be made
as provided for in Gov.Bar R. V(8)(D)(2), and that respondent bear the costs of
publication.
____________________
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
________________________
4 | 01-03-2023 | 08-01-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1551211/ | 142 F.2d 805 (1944)
BARBER
v.
UNITED STATES.
No. 5172.
Circuit Court of Appeals, Fourth Circuit.
February 5, 1944.
William Barber, pro se.
Carlisle W. Higgins, U. S. Atty., of Greensboro, N. C., for appellee.
Before PARKER, SOPER and DOBIE, Circuit Judges.
PARKER, Circuit Judge.
This is an appeal from an order denying a motion to vacate the judgment and sentence in a criminal case. The petitioner, William Barber, was convicted in 1937 of the crime of bank robbery in violation of 12 U.S.C.A. § 588b and was sentenced to a term of 25 years in prison. He was represented at the trial by an able and experienced lawyer and introduced evidence in *806 support of an alibi defense, although he did not take the stand in his own behalf. In the year 1943, he filed in the court below a motion for a new trial, which was denied, and then a motion to set aside the judgment and sentence of the court on the ground that, at the time of his trial, he had been denied reasonable opportunity to prepare his defense and that a new trial should be granted him so that he might have opportunity to present additional alibi evidence that he claimed to have discovered. He asked for an order that he be brought from Alcatraz Prison to Greensboro to be present at the hearing of this motion. The court appointed counsel to present his motion, heard evidence thereon and found the facts as follows:
"A Bill of Indictment was found by the grand jury at the May term of the Wilkesboro Court by the Middle District of North Carolina, charging the defendants Coltrane, Barber, Jackson and Northcutt with the robbery of the Reidsville Bank, and they were arrested on this charge under a capias on the 19th day of May, 1937, and the defendant Barber's counsel, Mr. J. H. Scott, was furnished with a copy of this indictment promptly after its return by the grand jury at Wilkesboro, and the parties were informed that the case would be tried at the June term, 1937, of this Court at Greensboro, and the defendants and their counsel knew that the case would be tried at the June term in Greensboro.
"In the trial of the bank robbery case it developed that a Plymouth automobile was used by the robbers, which was a vehicle which had been stolen, on the 7th day of October, 1936, in Nashville, Tennessee, the bank having been robbed on October 12, 1936. This car was positively identified by the owner from Tennessee, who was cross examined in this trial and who identified Northcutt and Coltrane as the two persons who forcibly took the car from him at the point of a pistol, and he positively identified the car by the motor number. This car was identified in connection with the bank robbery by various witnesses at the scene where the crime was committed, and Mrs. Sawyer testified that she saw the defendant Barber on Saturday before the bank was robbed on Monday, pass her place at different intervals in that automobile, and on the day of the robbery, both she and her husband testified that Barber and Northcutt were in the Plymouth car and that Coltrane was following behind them in a Ford. There were other witnesses at the bank who identified Barber, as one of the three men and also identified Coltrane and Northcutt and Nettie Jackson as the woman.
"The records do not disclose that a motion was made for the continuance of the case. The defendant Barber, offered witnesses, three in number, who testified that on the morning the bank was robbed he was at the court house in Durham, North Carolina, and the feature of his motion which appeals to the Court the most, is the fact that he has three witnesses here who testified that they saw him in Durham at Court on that morning the crime was committed which tends to show that he was not at the scene of the crime at that time, but this evidence is cumulative of the evidence which was produced and there is no probable ground to believe that it would have altered the result of the trial.
"The Court gave careful consideration to the case when it was being tried, and is not now in position to say that it has any grave doubt on the question of the defendant's guilt.
"For the reasons above stated the Court is of the opinion that the motion to vacate the judgment and sentence should be denied."
The contentions on appeal resolve themselves into three points: (1) that the court below erred in not having appellant brought from prison and produced at the hearing of his motion; (2) that defendant was denied due process on the original trial of his case in that a preliminary hearing was not held and he was not allowed adequate time to prepare his defense; and (3) that a new trial should be granted because of the additional evidence produced in support of defendant's alibi, unsuccessfully asserted on the trial. There is no merit in any of these points.
Whether the motion is treated as in the nature of a petition for writ of error coram nobis under the old practice or as a motion for a new trial, it is perfectly clear that appellant had no constitutional right to be present at the hearing of the motion and cannot complain because the Court refused to order that he be brought from prison and produced at the hearing. Such a hearing is in no sense a part of the criminal trial at which the Constitution requires the presence of the accused. As on the hearing of an appeal or writ of error *807 in a higher court, what is under investigation on such motion is, not the guilt or innocence of the accused, but the validity or regularity of the proceedings attending his trial. Schwab v. Berggren, 143 U.S. 442, 12 S.Ct. 525, 36 L.Ed. 218; Ormsby v. United States, 6 Cir., 273 F. 977, 985; Alexis v. United States, 5 Cir., 129 F. 60, 64; Com. v. Costello, 121 Mass. 371, 23 Am.Rep. 277; State v. Jacobs, 107 N.C. 772, 11 S.E. 962, 22 Am.St.Rep. 912; 14 Am.Jur. 900; 23 C.J.S., Criminal Law, § 1504, p. 1325; note, 5 L.R.A. 835. As said in State v. Fahey, 35 La.Ann. 9, 12: "It can now be considered as elementary, that the absence of the accused during the trial of motions not making part of the actual trial of his guilt or innocence, but having reference to the form or conduct of the trial, will not vitiate the proceedings".
A recent decision directly in point is that of the Circuit Court of Appeals of the Fifth Circuit in Bell v. United States, 5 Cir., 129 F.2d 290, 291. That case involved a motion, in the nature of a petition for writ of error coram nobis, that a conviction be set aside on the ground that the defendant had been deprived of his constitutional right to counsel and to compulsory process for witnesses and had been otherwise unfairly dealt with. In sustaining the action of the trial judge in refusing the request of the defendant for an order that he be brought from Alcatraz to be present at the hearing of the motion, the Court, speaking through Judge Sibley, said: "The refusals of the judge to postpone the hearing to secure witnesses, and to order Bell brought from Alcatraz, are specified as error. Bell's presence was no more necessary than for the hearing of any other motion for new trial. His sworn petition treated as an affidavit, fully stated what he had to say. The expense of bringing him across the continent would have been great. The refusal to do it was well within the court's discretion, assuming that by some writ it could have been accomplished."
If a prisoner, by merely filing a motion to vacate the judgment in a criminal case or for a new trial on the ground of after-discovered evidence, could require that he be taken from prison and produced in court for the hearing of the motion, the government would be put to great and unnecessary expense, opportunities for the escape of dangerous prisoners would be multiplied, and the proper administration of the penal system would be greatly interfered with. The constitutional guaranty which assures to an accused the right to be present at the trial of the charge against him does not embrace the right to be present at the hearing of motions made after he has been convicted of the charge, nor does it confer upon him the right to be taken from the prison where he is serving his sentence and carried about over the country at the expense of the government in order that he may be present at the hearing of such motions. Merely to state the contention of appellant to the contrary is to answer it.
There is nothing in the point that the prisoner was not granted a preliminary hearing or given sufficient time to prepare his defense. The only purpose of a preliminary hearing is to determine whether there is sufficient evidence against an accused to warrant his being held for action by a grand jury; and, after a bill of indictment has been found, there is no occasion for such hearing. Appellant here was informed of the charge against him well in advance of trial and neither he nor his lawyer requested a continuance to prepare his defense. He introduced a number of witnesses in support of the alibi upon which he relied as a defense, although not taking the stand in his own behalf; and there is nothing in the record indicating that he did not have full opportunity to present his defense or that he was not fairly dealt with in any particular.
With respect to the additional evidence offered on the hearing of the motion for new trial, it is well settled that, even where such motion has been made in apt time, the granting or refusing thereof is a matter resting in the sound discretion of the trial judge not reviewable on appeal. It is equally well settled that a motion on such ground must be made during the term, or while jurisdiction of the cause is retained by the trial court, and that a motion in the nature of a petition for writ of error coram nobis cannot afterwards be availed of to bring such matter before the court for decision. United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 59 L.Ed. 129. Motion in the nature of petition for writ of error coram nobis is available only for the purpose of bringing before the court "errors in matters of fact which had not been put in issue and passed upon, and were material to the validity and regularity of the legal proceeding itself." United States v. Mayer, supra, 235 U.S. at *808 page 68, 35 S.Ct. at page 19, 59 L.Ed. 129; Bronson v. Schulten, 104 U.S. 410, 416, 26 L.Ed. 797; Robinson v. Johnston, 9 Cir., 118 F.2d 998, 1000; Strang v. United States, 5 Cir., 53 F.2d 820; 31 Am.Jur. 323; note, 97 Am.St.Rep. 362, 369, 371. It cannot be used to review the proceedings as upon a motion for a new trial or an appeal.
For the reasons stated, the order appealed from will be affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600356/ | 120 F.Supp. 304 (1954)
PADUANO
v.
YAMASHITA KISEN KABUSHIKI KAISHA et al.
Civ. 13466.
United States District Court, E. D. New York.
March 31, 1954.
Murray S. Lokietz, and Alfred R. Sandominick, Brooklyn, N. Y. (William A. Blank, Brooklyn, N. Y., of counsel), for plaintiff.
Kirlin, Campbell & Keating, New York City (Roland C. Radice, New York City, of counsel), for defendants.
BRUCHHAUSEN, District Judge.
The defendant moves for reargument of its motion for an order dismissing the amended complaint, pursuant to Rule 12 of the Federal Rules of Civil Procedure, 28 U.S.C.A., upon the ground that the action is between aliens and that the Court lacks jurisdiction of the subject matter.
The plaintiff, a citizen of Italy, domiciled in the United States since 1946, instituted the action against the defendant, Yamashita Kisen Kabushiki Kaisha, a foreign corporation, owner of the vessel "Yamashita Maru", and against the defendant, Norton, Lilly & Company, a domestic corporation, to recover damages for personal injuries claimed to have been sustained while the plaintiff was engaged in unloading the vessel at its pier in Brooklyn, New York. The plaintiff at the time was in the employ of a stevedoring concern, John T. Clark and Son, not a party to the action. The plaintiff has demanded a jury trial.
The action is based upon the general maritime law and not upon the Jones Act, 46 U.S.C.A. § 688. The latter act applies only where the action is brought by an employee against his employer.
The plaintiff bases his claim to jurisdiction on the civil jury side of the court in that the action involves a maritime *305 tort, arising under the Constitution and laws of the United States and the right to a jury trial is "saved" under 28 U.S. C.A. § 1333.
The defendant urges a dismissal of the action on the grounds that this Court is without jurisdiction of an action between aliens and diversity of citizenship is not complete on both sides.
The plaintiff's position is that the absence of diversity of citizenship, or complete diversity on both sides within the meaning of 28 U.S.C.A. § 1332 is of no importance; that the jurisdiction of this Court on the civil jury side is based upon 28 U.S.C.A. § 1331 in that maritime torts are grounded upon maritime law and arise under the Constitution and laws of the United States, wherein the right to a jury trial is "saved" by 28 U.S.C.A. § 1333.
The plaintiff argues that the subject matter of his action is a maritime tort, Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208, cognizable in admiralty through a common law remedy of trial by jury in the district court, that is to say, that the tort "carries the jury trial with it" saving to the person alleging the tort, the right to a jury trial; that since the maritime law is, by virtue of the Constitution, the law of the United States, the tort is within the sphere of federally created rights. Panama R. Co. v. Johnson, 264 U.S. 375, 44 S.Ct. 391, 68 L. Ed. 748. Thus, it is argued that, regardless of the absence of diversity of citizenship, the case is properly on the civil jury side of the Court. Doucette v. Vincent, 1 Cir., 194 F.2d 834; Moore-McCormack Lines, Inc., v. Amirault, 1 Cir., 202 F.2d 893; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202. It is further urged by the plaintiff that since he is a longshoreman, and longshoremen are entitled to the remedies of seamen under the Jones Act, International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157, and inasmuch as longshoremen are entitled to the benefits of the doctrine of unseaworthiness, Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, the plaintiff is entitled to bring this non-statutory action in this Court despite the fact that he is an alien, since his residence of some years in this country would permit him to enforce his rights under the Jones Act within the meaning of Gambera v. Bergoty, 2 Cir., 132 F.2d 414, thus antiquating Cunard S. S. Co. v. Smith, 2 Cir., 255 F. 846.
The Supreme Court in Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, indicated existence of the important question, of whether or not the district court on the civil jury side had jurisdiction of a maritime tort in the absence of diversity. The Court said, 346 U.S. at page 410 in footnote 4, 74 S.Ct. at page 205:
"The complaint shows diversity which is sufficient to support jurisdiction of the District Court. The complaint also shows that the claim rests on a maritime tort which under the Constitution is subject to dominant control of the Federal Government. In this situation we need not decide whether the District Court's jurisdiction can be rested on 28 U.S.C. § 1331, 28 U.S.C.A. § 1331, as arising `under the Constitution, laws or treaties of the United States.' See Doucette v. Vincent, 1 Cir., 194 F.2d 834, and Jansson v. Swedish American Lines, 1 Cir., 185 F.2d 212, 30 A.L.R.2d 1385. Cf. Jordine v. Walling, 3 Cir., 185 F.2d 662."
Plaintiff, at page 7 of his brief, places the following interpretation upon the footnote:
"Certainly, the Supreme Court of the United States has indicated, in Doucette v. Vincent, cited supra, and Jansson v. Swedish American Line [1 Cir.], 185 F.2d 212 [30 A.L.R.2d 1385], that if the matter were presented directly to them, that is, jurisdiction based solely on a maritime tort, it would hold that such a maritime tort in itself would be sufficient for jurisdiction. No other conclusion can be drawn from *306 the following language of the Court:
"`Consequently, the basis of Hawn's action is a maritime tort, a type of action which the Constitution has placed under national power to control in "its substantive as well as its procedural features * * *"'."
Such a finality of construction cannot be given to the footnote on page 410 of the Supreme Court's opinion in the Pope & Talbot case by the paragraph on page 409 of 346 U.S., 74 S.Ct. 204, 205. The latter specifically rejected the argument that the Pennsylvania rule with respect to an absolute bar of contributory negligence could defeat a claim based on maritime law, and is not correlative to the footnote. The paragraph clearly bars any state law from infringing on maritime causes but it does not qualify the footnote, which appears to leave the question unanswered.
The case of Doucette v. Vincent, 1 Cir., 194 F.2d 834, is in conflict with the case of Jordine v. Walling, 3 Cir., 185 F.2d 662. Basically, these cases deal with the question of whether or not claims under the Jones Act for negligence, unseaworthiness and maintenance and cure, may all be joined together before a jury on the civil jury side in a case where diversity of citizenship is absent, but the question of fundamental theory is the same, viz.: Is diversity of citizenship needed where a maritime tort is alleged in order to obtain jurisdiction on the civil jury side of the district court?
The argument favoring the necessity for diversity of citizenship is set forth in Jordine v. Walling, 3 Cir., 185 F.2d 662, 666, where the Court discussed 28 U.S.C.A. § 1333 and the "`saving to suitors' clause":
"The section does, however, save `to suitors in all cases all other remedies to which they are otherwise entitled.' This `savings to suitors' clause was intended to carry into Title 28 in modern and simplified form the similar provisions of Sec. 24, par. 3, and Sec. 256, par. 3, of the Judicial Code of 1911 `savings to suitors in all cases the right of a common-law remedy where the common law is competent to give it'.[5] The latter clause has been held to authorize any competent court which has jurisdiction of the parties to entertain a civil action at law for the enforcement of a right conferred by the maritime law where the right is of such nature that adequate relief may be given in such an action.[6]
*307 "It is settled that a seaman's right to damages for a maritime tort and his right to maintenance and cure may each be adequately enforced in a civil action at law and that state courts of general common law jurisdiction may, if they acquire jurisdiction of the parties, entertain such actions for the enforcement of those rights."[7]
The Court in the case of Jordine v. Walling, supra, 185 F.2d at page 667 said:
"It does not necessarily follow, however, that the federal district courts may also entertain such actions for they are not courts of general common law jurisdiction but are strictly limited to the jurisdiction conferred upon them by Congress.[8] Where, however, there is diversity of citizenship the federal district courts are empowered by Section 1332 of Title 28 United States Code to entertain civil actions in the nature of actions at law both for maritime torts and for maintenance and cure if the amount in controversy in each instance exceeds $3,000."[9]
The Court in the case of Jordine v. Walling, supra, 185 F.2d at page 667 considered the possibility of jurisdiction under 28 U.S.C.A. § 1331 as it implements Article III, Section 2 of the Constitution, which is the plaintiff's contention in the case at bar. Section 1331 is as follows:
"The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs, and arises under the Constitution, laws or treaties of the United States."
As to this contention, the Court in Jordine v. Walling, supra, 185 F.2d at page 667 said: (Italics ours)
"It is settled, however, that cases arising under the `laws * * * of the United States' to which the section refers are only such as grow out of the legislation of Congress and involve the validity, construction or application of acts of Congress.[11] They, therefore, do not include cases arising under those general principles of the maritime law[12]which have not been modified *308 by Congressional legislation. This is, of course, not to say that the rules of the maritime law may not be altered by Congress[13] or that if so altered they will not thereby become `laws * * * of the United States' within the meaning of Section 1331."
The Court in Jordine v. Walling, supra, then discussed the difference between cases in "`Law and Equity'" and "`Cases of admiralty'" as separately delineated in the Constitution. The Court in Jordine v. Walling, supra, 185 F.2d at page 668, said, referring to what it considers the obvious exclusion of cases arising in admiralty: (Italics ours)
"They thus exclude `Cases of admiralty and maritime Jurisdiction', as to which cases jurisdiction is separately conferred by the same section of the Constitution. In thus making separate provision for jurisdiction over cases in law and equity arising under the Constitution, laws and treaties on the one hand, and cases of admiralty and maritime jurisdiction on the other, the Constitution, as Chief Justice Marshall pointed out long ago in American Insurance Co. v. Canter, 1828, 1 Pet. 511 [545], 26 U.S. 511, 545 [7 L.Ed. 242], contemplated distinct classes of cases so that the grant of jurisdiction over one class did not confer jurisdiction over the other. The logic of the great expounder of the Constitution is unanswerable. If admiralty cases were understood to arise under the Constitution or laws of the United States it was wholly unnecessary to mention them separately."
The clash of fundamental theory is emphasized by an analysis of Doucette v. Vincent, 1 Cir., 194 F.2d 834, which is in conflict with Jordine v. Walling, supra. The case of Doucette v. Vincent, supra, as well as Jordine v. Walling, supra, involved the joinder on the civil jury side of claims arising under the doctrines of seaworthiness and maintenance and cure. The Court in Doucette v. Vincent, supra, 194 F.2d at page 841, discussed the jurisdictional question and said that there is no question that the Constitutional divisions of "`Cases in Law and Equity'" and "cases in admiralty" are not redundant since the admiralty itself is unique, and is separately set up, citing The Moses Taylor, 4 Wall. 411, 18 L.Ed. 397, and Rounds v. Cloverport Foundry & Machine Co., 237 U.S. 303, 35 S.Ct. 596, 59 L.Ed. 966. Yet causes of action for personal injuries could be brought as "Cases in Law" under the foundation of Schoonmaker v. Gilmore, 1880, 102 U.S. 118, 26 L.Ed. 95 and Panama R. Co. v. Johnson, 264 U.S. 375, 388, 44 S.Ct. 391, 68 L.Ed. 748. Thus, it is argued, the remedy is saved to the suitor under 28 U.S.C.A. § 1333, allowing district court jurisdiction in the application of the uniform admiralty law of the United States, as adopted and established by the Constitution, eliminating the requirement of diversity. In other words, it is claimed that the nature of the action makes the district court a competent court, on the civil jury side, because of the substantive foundation of the action, Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160, 40 S.Ct. 438, 64 L.Ed. 834, and the suitor thus retains his remedy, so to speak, without any further requirement, Chelentis v. Luckenbach Steamship Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171, since it is based on controlling federal law. Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239. In addition, it is argued in footnote 8 of Doucette v. Vincent, supra, that not only are three contra United States Supreme Court cases antiquated, but a fourth written by Chief Justice Marshall "was not one of his most luminous opinions". The non-luminous opinion referred to in footnote 8 is American Insurance Co. v. Canter, 1 Pet. *309 511, 545, 26 U.S. 511, 545, 7 L.Ed. 242, and is the case referred to in Jordine v. Walling, 3 Cir., 185 F.2d 662, 668, as deserving a description that "The logic of the great expounder of the Constitution is unanswerable."
The essence of defendant's position rests upon its theory of Jordine v. Walling, supra, and cases cited therein, which hold that these actions do not properly arise under 28 U.S.C.A. § 1331, thus calling for the rules with respect to diversity of citizenship and upon Cunard S. S. Co. v. Smith, 255 F. 846, which was a dismissal of an action between an alien longshoreman resident in Brooklyn against an alien steamship company, by the United States Court of Appeals for the Second Circuit.
Once having set forth the fundamental theories, it seems proper to analyze the leading authorities as they bear a relationship to both the arguments of the parties, and the juridical position of a district court when faced with such a question.
First, it is settled law that a cause of action arising under the maritime law is governed by admiralty principles, and that those principles are applied wherever the cause is brought completely unfettered by any contravening law, and operating uniformly throughout the land. Southern P. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L. Ed. 1086. There is no doubt "that the district court, sitting in admiralty, was entitled to declare the applicable law in such a case, as it was within the power of Congress to modify that law" is the correct and fixed principle as stated in Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 62, 34 S.Ct. 733, 735, 58 L.Ed. 1208, 1213. The principles may be enforced, not only in a district court sitting in admiralty, but elsewhere, as was said in Waring v. Clarke, 5 How. 441, 460, 461, 12 L.Ed. 226, 236, cited in Panama R. Co. v. Johnson, 264 U.S. 375, 388, 44 S.Ct. 391, 68 L.Ed. 748:
"In respect to the clause in the ninth section of the Judiciary Act `saving and reserving to suitors in all cases a common law remedy where the common law is competent to give it' we remark, its meaning is, that in cases of concurrent jurisdiction in admiralty and common law, the jurisdiction in the latter is not taken away. The saving is for the benefit of suitors, plaintiff and defendant, when the plaintiff in a case of concurrent jurisdiction chooses to sue in the common law courts, so giving to himself and the defendant all the advantages which such tribunals can give to suitors in them."
The fact that the case of Waring v. Clarke, supra, was cited in Panama R. Co. v. Johnson, 264 U.S. 375, 388, 44 S.Ct. 391, 68 L.Ed. 748, involving the Jones Act, together with other cases cited therein, should be here noted. In Panama R. Co. v. Johnson, supra, 264 U.S. at page 388, 44 S.Ct. at page 394, the Court said:
"But, as Congress is empowered by the constitutional provision to alter, qualify or supplement the maritime rules, there is no reason why it may not bring them into relative conformity to the common-law rules or some modification of the latter, if the change be country-wide and uniform in operation. Not only so, but the constitutional provision interposes no obstacle to permitting rights founded on the maritime law or an admissible modification of it to be enforced as such through appropriate actions on the common-law side of the courtsthat is to say, through proceedings in personam according to the course of the common law. Chelentis v. Luckenbach S. S. Co., 247 U.S. 372, 384, 38 S.Ct. 501, 62 L.Ed. 1171; Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 159, 40 S.Ct. 438, 64 L.Ed. 834. This was permissible before the Constitution, and is still permissible. Judicial Code, §§ 24 and 256; Waring v. Clarke, 5 How. 441, 460, 12 L.Ed. 226; New Jersey Steam Navigation *310 Co. v. Merchants' Bank, 6 How. 344, 390, 12 L.Ed. 465; Leon v. Galceran, 11 Wall. 185, 188, 191, 20 L.Ed. 74; Schoonmaker v. Gilmore, 102 U.S. 118, 26 L.Ed. 95; Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638, 646, 20 S.Ct. 824, 44 L.Ed. 921; Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 259, 42 S.Ct. 475, 66 L.Ed. 927; Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S.Ct. 274, 68 L.Ed. 582."
Part of the opinion in Leon v. Galceran, 11 Wall. 185, 188, 20 L.Ed. 74, is as follows: (Italics ours)
"Where the suit is in rem against the ship, or ship and freight, the original jurisdiction of the controversy is exclusive in the district courts, as provided by the 9th section of the judiciary act; but when the suit is in personam against the owner or master of the vessel, the mariner may proceed by libel in the district court, or he may, at his election proceed in an action of law either in the circuit court, if he and his debtor are citizens of different states, or in a state court as in other causes of action cognizable in the state and Federal courts, exercising jurisdiction in common-law cases, as provided in the 11th section of the judiciary act. 1 Stat. at L. 78; The Belfast, 7 Wall. [624] 642, 644, 19 L.Ed. [266], 271."
Leon v. Galceran, supra, is cited in Panama R. Co. v. Johnson, supra.
The Court in Leon v. Galceran, supra, then discussed the "savings clause" in relation to the question of jurisdiction and continued as follows: (Italics ours)
"He may have an action at law in the case supposed either in the circuit court or in a state court, because the common law, in such a case, is competent to give him a remedy, and wherever the common law is competent to give a party a remedy in such a case, the right to such a remedy is reserved and secured to suitors by the saving clause contained in the 9th section of the judiciary act."
The reference to a competent court having jurisdiction over the parties in Leon v. Galceran, supra, is clear. That portion of The Belfast, cited as 7 Wall. 624, 642, 644, 19 L.Ed. 266, 271, referred to in Leon v. Galceran, supra, reads as follows: (Italics ours)
"Properly construed, a party under that provision may proceed in rem in the admiralty; or he may bring a suit in personam in the same jurisdiction; or he may elect not to go into admiralty at all, and may resort to his common-law remedy in the state courts or in the circuit court of the United States, if he can make proper parties to give that court jurisdiction of his case."
The italized reference to "proper parties", supra, is with specific reference to diversity of citizenship in The Belfast, 7 Wall at pages 643, 644, 19 L.Ed. 266.
The same reasoning is apparent in American Steamboat Co. v. Chase, 16 Wall. 522, 533, 21 L.Ed. 369, cited in footnote 6 of Jordine v. Walling, 3 Cir., 185 F.2d 662, 666. The Court wrote: (Italics ours)
"Where the suit is in rem against the thing, the original jurisdiction is exclusive in the district courts, as provided in the 9th section of the judiciary act; but when the suit is in personam against the owner, the party seeking redress may proceed by libel in the district court, or he may, at his election, proceed in an action at law, either in the circuit court if he and the defendant are citizens of different states, or in a state court as in other cases of actions cognizable in the state and Federal courts exercising jurisdiction in common law cases, as provided in the 11th section of the judiciary act. Leon v. Galceran, 11 Wall. 188, 20 L.Ed. 75. He may have an action at law, in the case, supposed, either in the circuit court or in a state court, because the common law in such a case is competent to *311 give him a remedy, and wherever the common law in such a case is competent to give a party a remedy, the right to such a remedy is reserved and secured to suitors by the saving clause contained in the 9th section of the judiciary act, 1 Stat. at L. 78; The Belfast, supra; The Moses Taylor, supra; The Hine v. Trevor, supra. [4 Wall. 555, 18 L. Ed. 451].
The statements are made in Doucette v. Vincent, 1 Cir., 194 F.2d 834, 843, at footnote 8 that the rationale of the cases of The Belfast, Leon v. Galceran, and American Steamboat Co. v. Chase, are purely dictum, as is the reasoning of American Insurance Co. v. Canter, 1 Pet. 511, 545, 7 L.Ed. 242, and that the opinion in the latter case is "not one of his [Justice Marshall] most luminous opinions." Those cases, at least, contain carefully considered reasons in support of the decisions if not actually semble, and certainly such precise Supreme Court guides in the absence of strong contra Appellate reasoning should not be lightly set aside. Cf. The rationale applied in 5 Moore's Federal Practice 280, 281, footnotes 12-18. It is further stated in footnote 8 of Doucette v. Vincent, supra, that these cases are, in any event, antiquated since they are of the PreJensen era before it was recognized that in a suit at common law on a maritime tort, maritime law is applicable. It is further argued therein, that these cases were decided prior to 1875, before the Circuit Courts were given general original jurisdiction. If that is so, what can be the explanation for the citation of Leon v. Galceran, 11 Wall. 185, 188, 20 L.Ed. 74, in Panama R. Co. v. Vasquez, 271 U.S. 557, 560, 46 S.Ct. 596, 70 L.Ed. 1085, in its discussion of the savings clause and tortious claims thereunder? The Court said, discussing jurisdiction 271 U.S. at page 560, 46 S.Ct. at page 597: (Italics ours)
"And it uniformly has been regarded as permitting such actions to be brought in either the federal courts or the state courts, as the possessor of the right may elect. Leon v. Galceran, 11 Wall. 185, 188, 20 L.Ed. 74".
It will be recalled that the Supreme Court said in Leon v. Galceran, supra, 11 Wall. at page 188, 20 L.Ed. 74:
"* * * or he may at his election, proceed in an action of law either in the circuit court, if he and his debtor are citizens of different states, * * *."
This is a strong answer to the argument of dictum, as is 5 Moore's Federal Practice, 280, 281, and footnotes therein. In addition, Panama R. Co. v. Vasquez was decided in 1925, nine years after the decision in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, and fifty years after the jurisdictional change alluded to in footnote 8 of Doucette v. Vincent, supra. In footnote 8 of Doucette v. Vincent, the Court interprets Mr. Justice Black's words in Garrett v. Moore-McCormack Co., 317 U. S. 239, 244, 245, 63 S.Ct. 246, 250, 87 L.Ed. 239, wherein the Justice referred to Belden v. Chase, 150 U.S. 674, 14 S.Ct. 264, 37 L.Ed. 1218 as "an 1893 decision". It would seem that such reasoning is of little pertinence here, since there is no doubt that admiralty rules rather than the common law rule of contributory negligence apply in collision cases which was the subject matter of the Garrett case, 317 U.S. at pages 244, 245, 63 S.Ct. at pages 250, 251.
Three cases mentioned in footnote 6 of Jordine v. Walling, 3 Cir., 185 F.2d 662, 666, point in the direction of a requirement of diversity. A well reasoned case clearly stating the requirement of diversity of citizenship on the civil jury side is Philadelphia & R. R. Co. v. Berg, 3 Cir., 274 F. 534, 538, 539, certiorari denied 257 U.S. 638, 42 S.Ct. 50, 66 L.Ed. 410. It was not passed upon directly since diversity was present, and the court itself stated that the Supreme Court had not passed on the question, but the reasoning of the case is persuasive. The Court also cited Engel v. Davenport, 271 U.S. 33, 37, 46 S.Ct. 410, 70 L.Ed. 813, and Chelentis v. Luckenbach *312 S. S. Co., 247 U.S. 372, 383, 384, 38 S.Ct. 501, 62 L.Ed. 1171, two diversity cases, based on statutes, for the proposition that the action may be brought in a competent court having jurisdiction of the parties. The argument, of course, is that when the action is based on statute, diversity is not needed, and thus Chelentis v. Luckenbach S. S. Co., supra, is of less value to plaintiff. Cf. Garrett v. Moore-McCormack Co. 317 U.S. 239, 243, footnote 6, 63 S.Ct. 246, 87 L.Ed. 239; 5 Moore's Federal Practice 281, footnote 15.
The utilization of Schoonmaker v. Gilmore, 102 U.S. 118, 26 L.Ed. 95, citing The Belfast, Leon v. Galceran, and American Steamboat Co. v. Chase, all supra, in Panama R. Co. v. Johnson, supra, 264 U.S. at page 388, 44 S.Ct. at page 394, adds further weight to the position requiring diversity of citizenship. The cases of Knapp, Stout, & Co. v. McCaffrey, 177 U.S. 638, 20 S.Ct. 824, 44 L.Ed. 921, Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927, and Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S.Ct. 274, 68 L.Ed. 582, do not aid plaintiff's position. For a good discussion of common law remedy see Knapp, Stout, & Co. v. McCaffrey, 177 U.S. 638, 644, 20 S.Ct. 824, 44 L.Ed. 921, and Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 123, 124, 44 S.Ct. 274, 68 L.Ed. 582. As a matter of fact, the district court opinion in Johnson v. Panama R. Co., D.C., 277 F. 859, 860, where it was alleged that the parties were citizens of the same state, reasoned that the former rule requiring diversity of citizenship was no longer applicable when the Jones Act was utilized. Judge Garvin, 277 F. at page 860, said: (Italics ours)
"It is true that the Judiciary Act (Comp.St. § 991[1]) requires that, if an action is brought in a court of the United States, at common law, to recover for maritime injuries it must appear that the parties are citizens of different states. See Leon v. Galceran, 11 Wall. 185, 20 L. Ed. 74; Hornthall v. The Collector, 9 Wall. 560, 19 L.Ed. 560. The court cannot agree with defendant's contention that this rule is not modified by section 33, supra. That section gives a right of recovery, under certain conditions, to any seaman and determines the district in which the suit must be brought as that within which defendant resides or in which he has his principal office. The necessary effect of this is to permit a seaman who is a citizen of a state within the district aforesaid and of that district itself to sue, under the statute, in the federal court of the district in question."
The Circuit Court for the Second Circuit, on appeal, 289 F. 964, 983, referring to trial by jury, said: (Italics ours)
"If it be assumed that he had no such right previously, then the right is one arising under a law of the United States * * *".
Although the cited portion, supra, is only an assumption strongly qualified by an "if", there is certainly authority for it. Indeed, the cases cited in footnote 8 of Jordine v. Walling, supra, 185 F.2d at page 667, although on different facts, support the rooted theory that the Courts only have such jurisdiction as is conferred upon them, and that Federal jurisdiction is not to be unduly expanded. Coupling this with authority in support of a diversity requirement and in support of the theory that admiralty cases do not arise under the laws of the United States, the theory of Jordine v. Walling, as it is pertinent here, seems better founded than the theory that a "uniform federal law" is the foundation of original jurisdiction. See Doucette v. Vincent, 1 Cir., 194 F.2d 834, 843-846. Judge Marshall's reasoning in American Insurance Co. v. Canter, 1 Pet. 511, 26 U.S. 511, 7 L.Ed. 242, wherein he stated that admiralty cases are distinct and that if they were understood to arise under the "constitution or laws" of the United States it would have been unnecessary to mention them separately, seems well founded. As to the procedural question of joinder of different *313 causes of action, under the Jones Act, this Court need not rule. At least joinder has not been disapproved in the Second Circuit. See Gonzales v. United Fruit Co., 193 F.2d 479, 480, footnote 1, citing 5 Moore's Federal Practice 281-285, which criticizes Jordine v. Walling, insofar as it does not permit joinder under the Jones Act in the absence of diversity of citizenship. But, as to cases not under the Jones Act, see 5 Moore's Federal Practice 280, 281, especially footnotes 17 and 18, citing cases previously discussed, requiring diversity of citizenship before Congress acts to make a law of the United States. For amplification with respect to the Constitution or Laws of the United States, see the cases cited in footnote 11 of Jordine v. Walling, supra, 185 F.2d at page 667 therein.
Thus, plaintiff's argument as earlier set forth must fall. Neither Panama R. Co. v. Johnson, Atlantic Transport Co. v. Imbrovek, Garrett v. Moore-McCormack Co., nor Pope & Talbot, Inc., v. Hawm, afford the authority he needs. Uniform application of an admiralty right does not in and of itself create civil jury jurisdiction, nor can the extension of remedies as in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, and International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157, create such jurisdiction. It is obvious from a reading of Gambera v. Bergoty, 2 Cir., 132 F.2d 414, 415, that the only question answered therein, as pointed out by the Circuit Court, was whether a particular individual was entitled to the protection of the Jones Act. Thus, it does not affect the status of one outside the cloak of the act who must necessarily be governed by Cunard S. S. Co. v. Smith, 2 Cir., 255 F. 846.
In summary, the weight of authority requires a dismissal of this action on the civil jury side of this Court. This decision supersedes the prior decision made by this Court herein, which was rendered under a misapprehension that it was an action under the Jones Act.
The motion for reargument is granted and upon said reargument the defendant's motion for a dismissal of the amended complaint is granted.
Settle order in conformity with this decision.
NOTES
[5] "28 U.S.C.1940 Ed., §§ 41(3), 371(3). The phrase of the present law `all other remedies to which they are otherwise entitled' clearly includes the earlier phrase `the right of a common-law remedy where the common law is competent to give it'. A common law remedy is, of course, a remedy other than in admiralty and a suitor is entitled to it if, and only if, the common law is competent to give it to him.
"The reviser's note to § 1333 states:
"`The "saving to suitors" clause in said sections 41(3) and 371(3) of title 28, U.S.C., 1940 ed., was changed by substituting the words "any other remedy to which he is otherwise entitled" for the words "the right of a common-law remedy where the common law is competent to give it." The substituted language is simpler and more expressive of the original intent of Congress and is in conformity with rule 2 of the Federal Rules of Civil Procedure abolishing the distinction between law and equity.' H. Rep.No. 308, 80th Cong., 1st Sess., p. A118.
"By the Act of May 24, 1949, § 79, 63 Stat. 101, the `saving to suitors' clause of § 1333 was amended to read as above set out in order to conform more closely to the prior language. H.Rep.No. 352, 81st Cong., 1st Sess., p. 14.
[6] "Leon v. Galceran, 1870, 11 Wall. 185 [187-188, 191], 78 U.S. 185, 187-188, 191, 20 L.Ed. 74; [American] Steamboat Company v. Chase, 1872, 16 Wall. 522 [533-534], 83 U.S. 522, 533-534, 21 L. Ed. 369; Chelentis v. Luckenbach S. S. Co., 1918, 247 U.S. 372, 383-384, 38 S.Ct. 501, 62 L.Ed. 1171; Philadelphia & R. R. Co. v. Berg, 3 Cir., 1921, 274 F. 534, certiorari denied 257 U.S. 638, 42 S.Ct. 50, 66 L.Ed. 410; Engel v. Davenport, 1926, 271 U.S. 33, 37, 46 S.Ct. 410, 70 L.Ed. 813; Panama R. Co. v. Vasquez, 1926, 271 U.S. 557, 560-561, 46 S.Ct. 596, 70 L.Ed. 1085.
[7] "Leon v. Galceran, 1870, 11 Wall. 185, 78 U.S. 185, 20 L.Ed. 74; [American] Steamboat Company v. Chase, 1872, 16 Wall. 522, 83 U.S. 522, 21 L.Ed. 369; Panama R. Co. v. Vasquez, 1926, 271 U.S. 557, 46 S.Ct. 596, 70 L.Ed. 1085.
[8] "United States v. Hudson, 1812, 7 Cranch 32, 11 U.S. 32, 3 L.Ed. 259; Gillis v. California, 1934, 293 U.S. 62, 66, 55 S.Ct. 4, 79 L.Ed. 199; Chicot County [Drainage] Dist. v. Baxter State Bank, 1940, 308 U.S. 371, 376, 60 S.Ct. 317, 84 L.Ed. 329; City of Indianapolis v. Chase National Bank, 1941, 314 U.S. 63, 76-77, 62 S.Ct. 15, 86 L.Ed. 47; Lockerty v. Phillips, 1943, 319 U.S. 182, 187, 63 S.Ct. 1019, 87 L.Ed. 1339.
"In Stevens v. R. O'Brien & Co., 1 Cir., 1933, 62 F.2d 632, 633 and Nolan v. General Seafoods Corporation, 1 Cir., 1940, 112 F.2d 515, 517, this distinction was apparently not recognized. Compare McDonald v. Cape Cod Trawling Corporation, D.C.Mass., 1947, 71 F.Supp. 888, 891-892.
[9] "Philadelphia & R. R. Co. v. Berg, 3 Cir., 1921, 274 F. 534, certiorari denied 257 U.S. 638, 42 S.Ct. 50, 66 L.Ed. 410; Modin v. Matson Nav. Co., 9 Cir., 1942, 128 F.2d 194, 196.
[11] "State of Tennessee v. Davis, 1879, 100 U.S. 257, 264, 25 L.Ed. 648; New Orleans, M. & T. Railroad Co. v. Mississippi, 1880, 102 U.S. 135, 141, 26 L.Ed. 96; Shulthis v. McDougal, 1912, 225 U.S. 561, 569, 32 S.Ct. 704, 56 L.Ed. 1205.
[12] "American Insurance Co. v. Canter, 1828, 1 Pet. 516, 26 U.S. 511, 544, 7 L. Ed. 242; The Chusan, 1843, Fed.Cas. No.2,717; The Lottawanna, 1874, 21 Wall. 558 [572, 574-576], 88 U.S. 558, 572, 574-576, 22 L.Ed. 654; The Osceola, 1903, 189 U.S. 158, 168-169, 23 S.Ct. 483, 47 L.Ed. 760; Southern Pacific Co. v. Jensen, 1917, 244 U.S. 205, 215, 37 S. Ct. 524, 61 L.Ed. 1086; Panama R. Co. v. Johnson, 1924, 264 U.S. 375, 385-387, 44 S.Ct. 391, 68 L.Ed. 748.
[13] "O'Donnell v. Great Lakes [Dredge & Dock] Co., 1943, 318 U.S. 36, 40-41, 63 S.Ct. 488, 87 L.Ed. 596." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600391/ | 120 F.Supp. 551 (1954)
AMBASSADOR EAST, Inc.
v.
SHELTON CORNERS, Inc., et al.
United States District Court S. D. New York.
April 27, 1954.
*552 O'Brien, Driscoll & Raftery, New York City, Edward C. Raftery, Paul D. O'Brien, Milton M. Rosenbloom, New York City, of counsel, for plaintiff.
O'Dwyer & Bernstein, New York City, for defendant Shelton Corners, Inc.
Wien, Lane, Klein & Purcell, New York City, for defendants Lawrence A. Wien, Harry B. Helmsley, Alvin S. Lane and William F. Purcell, associated in a joint venture doing business under the name of Shelton Hotel Associates.
Budner & Budner, New York City, for defendant Hotel Shelton Equities, Inc.
IRVING R. KAUFMAN, District Judge.
Plaintiff moves for a temporary injunction restraining defendants from using the name Pump Room or any facsimile thereof, on the ground that the use of this name constitutes unfair competition and causes irreparable damage to plaintiff's business.
Plaintiff is a Delaware corporation which owns and operates the Ambassador East Hotel in Chicago, Illinois. As part of the operation, and on the hotel premises, plaintiff has a fashionable restaurant and night club known as the Pump Room. From the affidavit of James A. Hart, president of the plaintiff corporation, it appears that the Pump Room was opened on October 1, 1938, and that it was named for a famous 18th Century watering spa and rendezvous for royalty and actors at Bath, England. The affidavit describes in detail the unique character of the Pump Room, and alleges the excellence of its service, food and reputation, as well as the high quality of its clientele. It explains the methods used, and asserts that substantial expenses have been incurred, in advertising this distinctive quality of the Pump Room. For example, the affidavit states that the Pump Room's gross revenue during the last five years totalled $5,500,000. Annual magazine advertising costs for the Ambassador Hotels in Chicago and the Pump Room are stated to be $45,000; $35,000 a year is similarly expended for other public relations *553 activities which in large measure are devoted to the Pump Room. An estimated $25,000 has been expended for the printing and circulation of pamphlets describing the Pump Room. Assertions of the restaurant's national fame and reputation are supported by extensive quotations from national magazines and other media of publicity which have recognized the high quality of the Pump Room and its distinctive character. The affidavit further states that no expense or detail was spared to make the Pump Room as famous as its English counterpart and that as a result the name Pump Room represents extraordinary quality and character. The replacement cost of the Pump Room today is estimated to be $200,000 to $250,000. During the past year, some $30,000 was spent in renovating the room and a total of $100,000 was spent for the installation of a new air-conditioning system. The affidavit urges that the use of the name Pump Room by any other restaurant confuses the public because of the association in the mind of the public with the Chicago Pump Room, and that should the public find such other restaurant inferior in quality to the Chicago restaurant, the reputation of the Chicago Pump Room will be irreparably damaged. The affidavit notes that it has been brought to affiant's attention that defendants operate a medium class restaurant in New York City called the "Pump Room", in no way similar in decor or in quality of service to the Pump Room in Chicago; that defendants have been notified that they are thereby infringing the valuable trade name of the Chicago Pump Room, and that unless defendants are enjoined, plaintiff will sustain irreparable damage.
Additional affidavits by two New York residents, and by plaintiff's attorney, elaborate upon and substantiate the statements of the Hart affidavit.
Defendants do not deny the general assertions of the plaintiff as to the quality and reputation of the Pump Room, nor do they deny that their New York restaurant is using the name "Pump Room" and that it is a less expensive and less elaborate establishment than plaintiff's. Defendants, however, vigorously assert that there is no competition between their business and plaintiff's; that plaintiff comes before the Court with unclean hands because its use of the name Pump Room rests upon a misrepresentation that it has an authorized connection with the original Pump Room in Bath, England; that defendants have not practiced nor intended to practice any unfairness toward or fraud upon plaintiff and that there is no likelihood of confusion; and that plaintiff has no title or property in or to the use of the name Pump Room in New York. Lester Genser, president of defendant, Shelton Corners, Inc., states in his affidavit of April 15, 1954, that defendants did not copy the name Pump Room from the plaintiff or adopt the name by reason of any publicity that may have been given to it by the extensive advertising of plaintiff. A further affidavit of defendants' attorney indignantly and picturesquely denounces the anti-democratic character of the celebrity-catering Chicago establishment.
It is clear from the undenied assertions of plaintiff's affidavits and from the accompanying exhibits that the name Pump Room is a valuable trade name secured by plaintiff at great effort and expense over the last fifteen years. Plaintiff took the name Pump Room from its English counterpart, with the latter's approval and encouragement. But plaintiff has given the name its own meaning in the United States. When the Pump Room is spoken of in America, I am convinced that the reference is generally understood to mean the plaintiff's establishment in Chicago.[1] Thus plaintiff's trade name is a valuable business asset which it is the policy of the law to protect. Siegel Co. v. Federal Trade *554 Commission, 1946, 327 U.S. 608, 612, 66 S.Ct. 758, 90 L.Ed. 888.
Defendants urge that no injunction should issue since there is no competition or conflict of interests between plaintiff's business and their own. But direct or "market competition" is not an essential ingredient of unfair competition. If one uses another's trade name, he borrows the owner's reputation and good will. "This is an injury, even though the borrower does not tarnish [the name], or divert any sales by its use; for a reputation, like a face, is the symbol of its possessor and creator, and another can use it only as a mask." Yale Electric Corp. v. Robertson, 2 Cir., 1928, 26 F.2d 972, 974. Furthermore, there is obvious danger of confusion in the instant case, since anyone who had heard of the Chicago Pump Room might be attracted to defendants' establishment in the belief that the New York restaurant had the same characteristics and was under the same management. The plaintiff is entitled to protection against such likely confusion and the damage to its business and reputation which may result, Stork Restaurant v. Sahati, 9 Cir., 1948, 166 F.2d 348, 356; Restatement of Torts, Vol. 3, 597-598, even if neither unfairness nor fraud was intended by defendants. Stork Restaurant v. Sahati, supra, 166 F.2d at page 360; Restatement, supra, at 565. Cf. Miles Shoes, Inc. v. R. H. Macy & Co., Inc., 2 Cir., 1952, 199 F.2d 602, certiorari denied, 1953, 345 U.S. 909, 73 S. Ct. 650, 97 L.Ed. 1345; American Chicle Co. v. Topps Chewing Gum, Inc., 2 Cir., 1953, 210 F.2d 680.
Defendants' assertion that plaintiff is guilty of unclean hands in that it has represented an authorized connection between the Chicago Pump Room and its English counterpart is entirely without foundation. Undenied statements in the affidavits, as well as the accompanying exhibits, establish that plaintiff states only that its restaurant was modeled upon the famous English Pump Room and that its operation has been conducted with the full approval and encouragement of the Pump Room in Bath, England.
A temporary injunction is an extraordinary remedy. It is granted only upon a clear showing that the party seeking the injunction is likely to prevail at trial, and where the Court finds that without the injunction the complaining party will suffer irreparable injury. Cf. Foundry Services, Inc. v. Beneflux Corporation, 2 Cir., 1953, 206 F.2d 214. I am convinced, however, that plaintiff has made a sufficient showing of probable success in its action, and that without a temporary injunction it may suffer damage to its reputation which could not adequately be compensated by a later award. Furthermore, plaintiff urges without contradiction that defendants can remove the name "Pump Room" from their advertisements and displays with comparative ease and without interfering with any permanent installations of their restaurant.
The motion for a temporary injunction, restraining defendants from using the trade name Pump Room, is granted. Settle order.
NOTES
[1] It is to be noted that the Pump Room in Bath, England, apparently has not been operated as a restaurant since World War II. Affidavit of Paul D. O'Brien, plaintiff's attorney, April 6, 1954, p. 4. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1551179/ | 142 F.2d 52 (1944)
JORDAN
v.
SHELBY MUT. PLATE GLASS & CASUALTY CO. (two cases).
Nos. 5218, 5219.
Circuit Court of Appeals, Fourth Circuit.
April 11, 1944.
*53 Langhorne Jones, of Chatham, Va. (Carter & Williams, of Danville, Va., on the brief), for appellants.
Henry M. Sackett, Jr., and Samuel H. Williams, both of Lynchburg, Va., for appellee.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
DOBIE, Circuit Judge.
The facts, about which there is little or no dispute, of these cases (which were heard together), were thus set out by Judge Barksdale in his opinion below, D.C., 51 F. Supp. 240:
"At and before the time of the accident which is the basis of this action, Thomas J. Hurley was employed by a partnership composed of B. J. and F. P. Kavanaugh, trading as `Lynchburg Rendering Company' and doing business in Lynchburg, Virginia. On May 19, 1938, at the direction of his employer, Hurley drove an automobile owned by his employer from Lynchburg to Winston Salem, N. C., for the purpose of checking in a shipment of hides sold by his employer to a purchaser there. This automobile was kept in the possession of the employer and used by Hurley only occasionally when directed to use it for a specific business purpose. He had never used this or other automobiles of his employer for his own purposes, nor had he ever had this car, or others of his employer, in his possession, except while transacting business for his employer. Hurley, as well as other employees, had been instructed by the employer never to use the company's automobiles for pleasure or personal affairs, or to permit any passengers to ride with them. Nevertheless, contrary to these instructions, Hurley, unknown to his employer, took a friend, one Marcotte, with him from Lynchburg to Winston Salem. Upon arriving there, Hurley found that his business could not be transacted on that day. He telephoned his employer, and was instructed to spend the night in Winston Salem, accomplish his mission the next day, and return to Lynchburg. Thereupon, the friend, Marcotte, insisted that he was obliged to be in Lynchburg the next morning. Solely to accommodate his friend, Hurley then drove his employer's automobile back to Danville, Virginia, hoping that Marcotte could find someone there who would take him to Lynchburg that night. Not finding anyone at Danville who was going to Lynchburg, Hurley then proceeded to drive Marcotte further along the route to Lynchburg, and before reaching Chatham Hurley collided with another automobile, resulting in injuries to Charlie Wilbrun Wheeling and Roma Ferguson Wheeling. Suits were instituted by them and final judgments obtained against Hurley in a state court. In one action, a judgment was also obtained against the employer, upon the theory that Hurley, at the time of the accident, was the agent of his employer. Upon appeal, the judgment against the employer was set aside, the judgment against Hurley being left undisturbed, no appeal having been taken therefrom. Kavanaugh v. Wheeling, 175 Va. 105, 7 S.E.2d 125. Subsequently, both *54 Charlie Wilbrun Wheeling and Roma Ferguson Wheeling were adjudicated bankrupts, and these actions (now consolidated as one action) were brought by their trustees against the insurer of the employer upon the theory that Hurley was an additional insured under the omnibus clause of the employer's public liability insurance policy."
The insurance policy, on which appellant relies, reads:
"Definition of `Insured.' The unqualified word `insured' wherever used in coverages A and B and in other parts of this policy, when applicable to these coverages includes not only the named insured but also any person while using the automobile and any person or organization legally responsible for the use thereof, provided that the declared and actual use of the automobile is `pleasure and business' or `commercial', each as defined herein, and provided further that the actual use is with the permission of the named insured." (Italics ours.)
Section 4326a of the Code of Virginia makes the following provision, which is conventionally known as "the omnibus clause":
"* * * No such policy shall be issued or delivered in this State to the owner of a motor vehicle, by any corporation or other insurer authorized to do business in this State, unless there shall be contained within such policy a provision insuring such owner against liability for damages for death or injuries to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner." (Italics ours.)
It is conceded that we must here apply the law of Virginia. And, as Judge Barksdale pointed out, it was expressly stated by the Supreme Court of Appeals of Virginia, Kavanaugh v. Wheeling, 175 Va. 105, 115, 7 S.E.2d 125, 129:
"There is no contradiction of the evidence of either the employers or the driver (Hurley) that the latter used the car without the consent of the former for a purpose directly contrary to the specific instructions of his employers."
We are convinced, after a careful study of the Virginia cases, that Judge Barksdale arrived at the correct conclusion when he granted the motion of the defendant-insurer for a summary judgment in its favor.
We agree with Judge Barksdale that the opinion of the highest Virginia court in Phoenix Indemnity Co. v. Anderson & Powell, Receivers (hereinafter called the Anderson case), 170 Va. 406, 196 S.E. 629, is determinative of the instant case. Counsel for appellant strenuously attempt to distinguish that case from the instant case on two grounds: (1) The Virginia court, in the Anderson case, was applying the law of North Carolina and not the law of Virginia; (2) in the Anderson case, the coverage of the policy was limited to commercial purposes, while the instant coverage included both commercial and social purposes.
The answer to the first of appellant's contentions, we think, is that the Virginia court decided the Anderson case on principle, and not on the authority of North Carolina decisions. The Virginia court, too, used language (hereinafter set out) which, to our minds, shows clearly that this court decided on the law which the court thought was the law and also ought to be the law, with a crisp indication that the same result would have been reached had the court been determining the apposite law of Virginia.
As to appellant's second contention, we point out that the specific ratio decidendi of the Anderson case was not the fact that the policy-coverage there was limited to commercial purposes. On the contrary, the court expressly held that the use of the car there was not with the permission of the owner, and therefore the "omnibus clause" did not apply. The facts of the two cases, the Anderson and the instant case, are more than strikingly similar.
The facts of the Anderson case, as set out in the opinion of Associate Justice Holt (170 Va. at pages 408, 409, 196 S.E. at page 630), were:
"This corporation (the Royall Grocery Company) owned a half ton Ford truck. Two or three times a week, Royall (Secretary and Treasurer of the Royall Grocery Company) would send Johnson (an employee of the Royall Grocery Company) in it to Raleigh to purchase fresh vegetables for the Wake Forest store. They would be brought in the early morning by farmers from the surrounding country to the city market, and it was from them *55 that purchases were made by Johnson with money given him for that purpose by Royall. Sometimes Johnson would start in the early morning, and sometimes he would start in the evening, after business hours, in order that he might spend the night with his brother who lived in Raleigh and make an early return to Wake Forest, 16 miles away. His duty, and his only duty, was to purchase these fresh vegetables and to bring them, still fresh, to the Wake Forest store.
"On the evening of November 8, 1935, Royall, in accordance with an established custom, gave Johnson money and sent him to Raleigh to make purchases for tomorrow's trade. The Wake Forest store closed at half past six. Johnson ate dinner at home and then drove straight to his brother's house, which he reached somewhere between 7:30 and 8 o'clock. Within about an hour he left it and went to the market to see if he could pick up bargains already there. He bought nothing but drank to an extent not stated. Thereafter he started to return to his brother's house but chanced to remember a friend, Bobbitt, who had once driven a truck for the Royall Grocery Company, but who had been discharged and was then working at Staubt's bakery. Bobbitt was at work and did not get off until 11 o'clock. They then went in Bobbitt's car to a `nip joint,' where they took a drink, and from there to a café for lunch. Bobbitt went back to his work and Johnson to his truck parked near the bakery. He turned into Hillsboro street and to his left instead of to his right, which would have taken him back to his brother's home; `I discovered my mistake after I had gone several blocks, and I decided that I did not want to go home then, so I continued to ride,' out towards Durham on United States Highway No. 1, until he reached a point about 5½ miles from the State Capitol, when he ran off the road and into an instrument case which operated crossing signals at Thompson's crossing on the Seaboard Air Line, doing damage in amount $1,108.32."
Three quotations from the opinion in the Anderson case (set out by Judge Barksdale) are very much in point. Thus (at 170 Va. page 411, 196 S.E. at page 631) Judge Holt said:
"To ask one to believe that this midnight ride towards Durham was either permissive or commercial is to ask too much."
And, again (at 170 Va. page 414, 196 S.E. at page 633) we find:
"We are also told that delivering an automobile by the assured to another with permission to use it for a particular purpose carries with this permission the right of indefinite use. There are cases which so hold. A leading case to that effect is Stovall v. New York Indemnity Co., 157 Tenn. 301, 8 S.W.2d 473, 72 A.L.R. 1368. An elaborate discussion of this subject will be found in a note to the Stovall case in 72 A.L.R. 1375 et seq.
"Outside of court one would be surprised to learn that permission to drive to Raleigh carried with it permission to drive to El Paso. In the instant case, Johnson drove to Raleigh, not under general permission, but under an express order to proceed to that city, purchase perishable produce, and to return with it promptly to Wake Forest. No liberality of construction can turn these directions into a general permit to use the truck for pleasure purposes."
While (at 170 Va. page 410, 196 S.E. at page 631), it was stated:
"Accurately speaking, Johnson was not using this truck with permission at all. He was ordered to take it to Raleigh, load it up with produce purchased at the city market there, and return to Wake Forest early the next morning. The only permission which he had was permission to do those things which he was instructed to do. He was never given permission to use this truck `for his personal business or pleasure', and his only liberty of action was that he might go to his brother's the night before, keep the truck in his brother's garage, spend the night with him, and return early the next morning; or to go to Raleigh sufficiently early in the morning to enable him to return with the produce to be offered in that day's business." (Italics supplied.)
And, in the light of this last extract, we agree with counsel for appellee, that mutatis mutandis, the following statement would be justified in the instant case:
"Accurately speaking, Hurley was not using the Kavanaugh automobile with permission at all. He was ordered to take it to Winston-Salem for the purpose of checking in some hides purchased at Schwartz & Company there, and to return immediately to Lynchburg. The only permission which he had was permission to do those things which he was instructed *56 to do, namely: to go to Winston-Salem on a designated route, to check in hides at Schwartz & Company, and to return by the same route to Lynchburg. He was never given permission to use this automobile `for his own personal business or pleasure', and his only liberty of action was that upon getting to Winston-Salem and finding his task impossible of completion on that day he should remain in Winston-Salem overnight, complete his work the next morning, and then return to Lynchburg."
See, also, Indemnity Insurance Co. v. Jordan, 158 Va. 834, 164 S.E. 539.
We now come to the cases on which the appellant relies. Probably the strongest of these in appellant's favor is Stovall v. New York Indemnity Co., 157 Tenn. 301, 8 S.W.2d 473, 72 A.L.R. 1368; but the doctrine of the Stovall case was twice disapproved by the opinion in the Anderson case. This brings us to the Virginia cases of Maryland Casualty Co. v. Hoge, 153 Va. 204, 149 S.E. 448, and Jones v. New York Casualty Co., D.C., 23 F. Supp. 932, and the Connecticut case of Dickinson v. Maryland Casualty Co., 101 Conn. 369, 125 A. 866, 41 A.L.R. 500, cited in the Hoge and Jones cases.
As to these cases, Judge Barksdale said:
"I think that both the Hoge case and the Jones case are clearly distinguishable from the instant case, upon the facts. Both these cases were cases of family use for non-business purposes. The use of the car in the Dickinson case was not for a business purpose. Counsel for defendant here make what I believe to be the sound suggestion that a general permission, or a comprehensive permission, is much more readily to be assumed where the use of the car is for social or non-business purposes, than where the relationship of master and servant exists and the usage of the car is for business purposes."
We fully agree with this. And Judge Pollard (sitting in the United States District Court for the Eastern District of Virginia) in the Jones case, 23 F.Supp. at page 937, said of the Anderson case:
"The court pointed out that it was not dealing with a deviation but with an independent venture, unrelated to the assured's business. This is the real basis of the decision in that case."
We develop briefly the principle just suggested above by Judge Barksdale. In the cases of the entrustment of the car to another for purely social purposes, a bailment for the sole benefit of the bailee, usually there exists between the bailor and bailee a rather close relationship, either kinship or friendship. Thus, in the Jones case, the bailee was the son of the bailor, and in the Hoge case the bailee was the wife of the bailor. And, usually, as to the extended use by the bailee of the automobile going beyond the express permission of the bailor, the permission of the bailor may well be implied. The extended use is the same type of use, for social purposes, as the use expressly permitted. Thus, if a father lends his car to a son for the purpose of attending a dance at the Hilltop Country Club, it is not difficult to imply, from the whole milieu of surrounding facts and circumstances, permission to use the car for the purpose of driving, after the dance, to a restaurant.
But, in the instant case, the use permitted (a purely business use) falls into a whole category utterly and entirely different from the extended use, which was solely for purposes personal to the bailee and utterly foreign to the purposes of the bailor. To imply here a permission in fact for the extended use would simply border on the grotesque.
We are here too (as Judge Pollard said of the Anderson case), "not dealing with a deviation but with an independent venture, unrelated to the assured's business." Had Hurley injured someone in the accident on the way from Lynchburg to Winston-Salem, we think the coverage of the "omnibus clause" would have attached, though Hurley carried a rider contrary to his employer's instructions. The same result, we think, would have attached had Hurley on this same trip, made some deviation from the route prescribed by the employer. But, in spite of (and contrary to) both general instructions before he started and very specific orders given to him over the telephone after he reached Winston-Salem, Hurley embarked upon his independent, ill-fated journey, which under no circumstances could have benefited, but which might have injured, his employer, the owner of the car.
Under facts somewhat similar to the instant case, this Court denied the coverage of the "omnibus clause" in United States Fidelity & Guaranty Co. v. Mann, 4 Cir., 73 F.2d 465. There the car was entrusted by the city of Charleston, South *57 Carolina, to one Moultrie Ball, City Superintendent of Parks, to be used by him in his official duties. Ball "directed his son to take the car and go downtown and bring home his mother, who was paying a social visit in the city." On this trip, the car, driven by the son, seriously injured Mrs. Mann. The language used in Judge Soper's opinion in the Mann case lends support to the conclusion which we have here reached. Compare the opinion of Judge Soper in Harrison v. Carroll, 4 Cir., 139 F.2d 427.
We are not insensible to two principles urged by counsel for appellant. It is well settled that dubious provisions in insurance policies are to be construed adversely to the insurer. Equally is it true that the "omnibus clause" statute, as remedial legislation, must be liberally interpreted to subserve the clear public policy, reflected in the statute, to broaden the coverage of automobile-liability policies. These were considered below by Judge Barksdale, and the conclusion that he still reached in the light of these principles is believed by us to be entirely correct.
We, therefore, affirm the judgment of the District Court.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1028331/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4517
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WALTER DEANGELO VAUGHAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:98-cr-00219-REP-l)
Submitted: February 23, 2009 Decided: March 26, 2009
Before TRAXLER, DUNCAN, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Valencia Roberts-Brower, Assistant Federal Public
Defenders, Richmond, Virginia, for Appellant. Chuck Rosenberg,
United States Attorney, S. David Schiller, Assistant United
States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Walter D. Vaughan pled guilty in March 1999 to being a
drug user in possession of a firearm, 18 U.S.C. § 922(g)(3)
(2006), and to two counts of misdemeanor possession of marijuana
and cocaine, 21 U.S.C. § 844 (2006). He was sentenced to
fifteen months on the firearms offense and twelve months on each
of the drug offenses, followed by a term of supervised release.
In April 2008, the district court revoked Vaughan’s supervised
release and imposed a twenty-four month sentence, followed by an
additional two-year term of supervised release. Vaughan
appeals.
Vaughan first claims that the twenty-four month
sentence imposed by the district court was unreasonable. We
will affirm a sentence imposed following revocation of
supervised release if it is within the prescribed statutory
range and is not “plainly unreasonable.” United States v.
Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006). While the
district court must consider the Chapter 7 policy statements and
statutory requirements and factors applicable to revocation
sentences under 18 U.S.C. §§ 3553(a), 3583 (2006), the district
court ultimately has “broad discretion” to revoke the previous
sentence and impose a term of imprisonment up to the statutory
maximum. Crudup, 461 F.3d at 439 (citation omitted).
2
We have reviewed the record and find that the district
court’s sentence, although beyond the advisory guidelines range,
was not unreasonable. The court implicitly considered the
guidelines range and the applicable § 3553(a) factors, and
provided a proper basis for imposing the statutory maximum
sentence; namely, the number and type of violations occurring
within a short time after Vaughan began serving his original
term of supervised release. Accordingly, we affirm as to the
twenty-four month sentence of imprisonment.
Vaughan also claims that the district court erred by
imposing an additional term of supervised release following the
sentence of imprisonment. Because he did not object at
sentencing as to this aspect of the district court’s judgment,
our review is for plain error. United States v. Maxwell, 285
F.3d 336 (4th Cir. 2002). Post-revocation penalties for
violations of supervised release are treated as part of the
penalty for the original conviction. Johnson v. United States,
529 U.S. 694, 700-702 (2000). Thus, the penalties that can be
imposed for revocation relate back to the date of the original
offense.
The version of 18 U.S.C. § 3583(h) in effect on the
date Vaughan committed the underlying offense read: “[w]hen a
term of supervised release is revoked and the defendant is
required to serve a term of imprisonment that is less than the
3
maximum term of imprisonment authorized under subsection (e)(3),
the court may include a requirement that the defendant be placed
on a term of supervised release after imprisonment.” 18 U.S.C.
§ 3583(h) (1998). Thus, the plain language of § 3583(h) in
effect at the time Vaughan committed his underlying offense
permitted reimposition of supervised release only if the
district court imposed less than the maximum prison term for his
supervised release violation.
Because Vaughan received the statutory maximum term of
imprisonment for violating his supervised release, the
imposition of an additional two-year term of supervised release
was plain error that affected his substantial rights. See
Maxwell, 285 F.3d at 342. Accordingly, we exercise our
discretion to correct the error. United States v. Olano, 507
U.S. 725, 736 (1993). We vacate this portion of the district
court’s order and remand for further proceedings consistent with
this opinion. We dispense with oral argument because the facts
and legal contentions are adequately addressed in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
4 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1551141/ | 86 B.R. 625 (1988)
UNITED STATES of America, Farmers Home Administration, Plaintiff/Appellant,
v.
Leonard James NOVAK and Martha Mae Novak, Defendants/Appellees.
Civ. No. 88-5010.
United States District Court, D. South Dakota, W.D.
May 20, 1988.
*626 Robert J. Haar, Asst. U.S. Atty., Sioux Falls, S.D., for plaintiff/appellant.
Max A. Gors, Gors, Braun and Zastrow, Pierre, S.D., for defendants/appellees.
MEMORANDUM OPINION
BATTEY, District Judge.
PROCEDURAL HISTORY
Pursuant to 28 U.S.C. § 158(a), the Appellant (FmHA) appeals a bankruptcy court order modifying the Appellees' (Novaks) final amended Chapter 11 plan of reorganization. Both parties have submitted their respective arguments and authorities pursuant to Bankruptcy Rule 8009. Oral argument on the issue raised by this appeal was held May 19, 1988, at 1 p.m.
*627 FACTS
Novaks filed their Chapter 11 petition for reorganization on September 14, 1984. On May 16, 1985, the bankruptcy court, the Honorable Peder K. Ecker presiding, entered an order confirming the Novaks' final amended plan.
The property subject to the terms of the confirmed plan included 800 acres of farmland located in Bennett County, South Dakota. The first mortgage on this land was held by the Federal Land Bank of Omaha in the amount of $97,384.62. A second mortgage was held by FmHA. By stipulation the parties agreed that the value of the 800 acres equaled $180,000, or $225 per acre. This valuation left FmHA with a secured claim of $82,615.38, arrived at by subtracting the $97,384.62 first mortgage of the Federal Land Bank from the $180,000 land value.
The designated record reflects that the Novaks had three loans with FmHA, with a total principal and interest due of $372,193. Under the provisions of the confirmed plan, FmHA's secured claim of $82,615.38 was to be recouped over the course of thirty-five years at a scheduled amortized annual payment of $5,045.44. The undersecured portion of FmHA's claim equaled $289,577.62 ($372,193.00 minus $82,615.38). Under the plan, this amount was to be paid a dividend of ten percent over ten years with no interest at an annual payment rate of $2,895.77.
Following confirmation of the plan, the Novaks, as disbursing agents, made two payments to FmHA. The first payment of $5,213.15 was made on May 16, 1986; the second payment of $3,000 was made on June 13, 1986. The total of the two payments equaled $8,213.15.
On August 20, 1987, the Novaks moved to modify the confirmed plan only as it related to the secured and undersecured claims of FmHA (denominated in the confirmed plan as "Class 6" claims). The motion to modify was based upon the fact that the land subject to the second mortgage held by FmHA had declined in value. In connection with their motion to modify, Novaks moved the bankruptcy court to determine the value of the property of Novaks' estate and of the FmHA's security in that property.
Hearing on the motion to modify was held on November 24, 1987. The bankruptcy court found that following the confirmation of the Novaks' plan in May of 1985, there had been a downward shift evaluation of the real estate subject to the plan.[1] Relying on a line of cases dealing with a percentage of consummation, the bankruptcy court went on to find that there had not been substantial consummation of the plan pursuant to 11 U.S.C. § 1127. Specifically, as to this question, the bankruptcy court concluded that the amount of payments under the plan (which equaled four percent of the total payments due) was not a majority of consummation, i.e., in excess of fifty percent of the payments contemplated under the plan. Based upon the legal conclusion that the payment of less than a majority of payments under a confirmed plan is less than substantial consummation, the bankruptcy court entered an order on December 10, 1987, modifying the Class 6 portion of the Novaks' Chapter 11 plan.
ISSUE
The question presented is whether the bankruptcy court erred in finding that as a matter of law, the Novaks' Chapter 11 plan had not been substantially consummated.
STANDARD OF REVIEW
When the district court reviews a bankruptcy court's final order, it acts as an appellate court. 28 U.S.C. § 158(a); Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987). The bankruptcy court's findings of fact cannot be set aside unless clearly erroneous, but the district court may review the bankruptcy court's legal conclusions de novo. Bankruptcy Rule 8013; Wegner, 821 F.2d at 1320; In re *628 Hunter, 771 F.2d 1126, 1129, n. 3 (8th Cir.1985).
DISCUSSION
11 U.S.C. § 1127(b) provides that:
The proponent of a plan or the reorganized debtor may modify such plan at any time after confirmation of such plan and before substantial consummation of such plan,. . . .
The term "substantial consummation" is defined at 11 U.S.C. § 1101(2) to mean:
(A) transfer of all or substantially all of the property proposed by the plan to be transferred;
(B) assumption by the debtor or by the successor to the debtor under the plan of the business or of the management of all or substantially all of the property dealt with by the plan; and
(C) commencement of distribution under the plan.
The use of the conjunctive in this definition makes it plain that all three elements must be present to warrant a finding of substantial consummation. In re Gene Dunavant and Son Dairy, 75 B.R. 328, 332 (M.D. Tenn.1987). In other words, all three criteria must be satisfied before a plan may be considered substantially consummated. In re Heatron, Inc., 34 B.R. 526 (Bankr.W.D. Mo.1983). In this case, both parties agree that factors (B) and (C) of the statutory definition have been accomplished, thus the only question presented is whether or not there has been a "transfer of all or substantially all of the property proposed by the plan to be transferred." 11 U.S.C. § 1101(2)(A).
The government argues that the doctrine of res judicata should control the outcome of this appeal in that upon confirmation of a plan, that plan and its provisions are binding upon all parties concerned. 11 U.S.C. § 1141(a).[2] The government cites Stoll v. Gottlieb, 305 U.S. 165, 59 S. Ct. 134, 83 L. Ed. 104, reh'g denied 305 U.S. 675, 59 S. Ct. 250, 83 L. Ed. 437 (1938) for the proposition that in the absence of proof of fraud in the obtainment of a judgment, res judicata should apply to matters which are covered by a plan of reorganization confirmed by a final order of a bankruptcy court. See also 5 Collier on Bankruptcy § 1142(a) (15th ed. 1979).
Novaks assert that the total payments due FmHA under the provisions of the plan equaled $205,548.10.[3] At the time of hearing on the proposed modification, Novaks had paid four percent ($205,548.10 divided by $8,213.15) of the total payments due FmHA under the plan. These payments occurred over the first two years of the plan. Novaks argue that these facts do not support a finding of "substantial consummation" as that term is defined at 11 U.S.C. § 1101(2) and applied at 11 U.S.C. § 1127(b). Accordingly, it is Novaks' position that because there had been no substantial consummation, the bankruptcy court's order of modification was appropriate.
A. RES JUDICATA
The government's argument of res judicata is misplaced. Res judicata acts as a bar only when a court is asked to take an action which would effectively modify or reverse the judgment of another court in a case the first court is not reviewing on appeal. In re A.J. Mackay Co., 50 B.R. *629 756, 758 (Bankr.D.Utah 1985). That is not the case here. Although it is true that there are limits on a bankruptcy court's power to revoke a plan that it has previously confirmed (see, e.g. 11 U.S.C. § 1144 Fraud and the Procurement of Order of Confirmation), the section of the code which is at issue herein specifically authorizes intervention by a court to modify a post-confirmed plan. 11 U.S.C. § 1127(b).
B. 11 U.S.C. § 1127(b)
The controlling statute in this case is 11 U.S.C. § 1127(b). The predecessor to section 1127 was section 229 of the Bankruptcy Act, 11 U.S.C. § 529 (repealed). Former section 229 was added to the Bankruptcy Act by Congress in 1952 to:
[C]larify the . . . uncertainty as to the point in the reorganization proceeding at which rights vest under the plan sufficiently to make it equitable to cut off further right to amend or modify the plan as to matters materially and adversely affecting the rights of creditors or stockholders.
H.R. Report No. 2320, 82d Congress, 2d Sess. 16 (1952), 1952 U.S. Code Cong. & Admin.News 1960, 1976-77. Congress has long recognized that the process of reorganization is involved and complex and, after confirmation, requires a prolonged period of time for its consummation. Id.
It is generally difficult to determine in a particular case when the transfer of property has occurred to such an extent as to vest rights which may subsequently not be taken away. . . . [I]f the time of substantial consummation of the plan is held to be determinative, uncertainty now exists as to the exact time when substantial consummation has occurred. . . . These uncertainties make it difficult to get credit, make contract, and receive such commitments . . . as may be necessary to consummate the plan.
Id. Given these difficulties, Congress added section 229 which provided for an application to be made to the court or an order declaring the plan substantially consummated. 1952 U.S. Code Cong. & Admin. News 1978. Thus, a precise date was fixed at which a plan was substantially consummated; thereafter, any alterations or modifications of the plan were prohibited if they materially and adversely affected participation in the plan of any class of creditors or stockholders.
The case law surrounding the interpretation of the term "substantial consummation" as used in section 1127(b) and defined at 1101(2) is limited. Even more limited is the law surrounding the meaning of the terms "all or substantially all" as those words are used in subsection (A) of section 1101(2). In deciding this issue the bankruptcy court in this case relied on what it termed a "majority of consummation of payments percentagewise" as being a valid test for determining whether or not a transfer of all or substantially all of the property had been made and thus the plan substantially consummated. Although the designated record does not reflect the bankruptcy court's authority for its position, at least one court has held that it is proper to look to the percentage of payments made under a confirmed plan as an indication of whether all or substantially all of the property has been transferred. See, e.g., In re Heatron, Inc., 34 B.R. 526 (Bankr.W.D.Mo.1983).
In Heatron, fifty-three percent of the total payments due under the debtors' confirmed plan had been transferred to creditors. Id. at 527. As in this case, factors (B) and (C) of section 1101(2) had been satisfied. Id. Thus, the sole question before the court in Heatron was whether "substantially all of the property of the proposed plan" had been transferred. 11 U.S.C. § 1101(2)(A). The court stated, "The word `substantial' suggests more than halfway, more than a preponderance. When used with the word `all,' . . . there is a suggestion of completeness." Id. at 529. Given these definitions, the court in Heatron held that the debtors' plan had not been substantially consummated because not all or substantially all of the property which was to be transferred under the plan had been transferred. Id. In other words, the court held that a fifty-three percent *630 transfer of property was not a transfer of substantially all of the property.
A contrary view to that espoused by the Heatron court is that found in the case of In re Hayball Trucking, Inc., 67 B.R. 681 (Bankr.E.D.Mich.1986). In Hayball, the debtor had moved to modify a confirmed plan and agreed that subsection (B) of section 1101(2) had been satisfied. 67 B.R. at 682. In support of his motion to modify, the debtor submitted by way of affidavit that partial payments had been made under the plan to administrative priority creditors, tax priority creditors, unsecured creditors, and secured creditors. Id. In addition, priority fringe benefit creditors had been paid in full. Id. Accordingly, the court found that it was "abundantly clear" that the debtor had commenced distribution under the plan, thereby satisfying the requirement of subsection (C) of 11 U.S.C. § 1101(2). Id. The only issue remaining for the court was whether there had been a transfer of all or substantially all of the property proposed by the plan to be transferred. Id. (Both parties in Hayball had stipulated that section 1101(2)(B) had been satisfied.)
In Hayball, the debtor argued that significantly less than half of the property had not been transferred to the creditors as per the plan. In support of his position that "substantially all" of the property had not been transferred, the debtor relied on Heatron and its rationale. The Hayball court rejected the debtor's reliance on Heatron, stating:
The difficulty with the analysis in Heatron is that it makes a nullity of subsection (C). If subsection (A), relating to the transfer of all or substantially all of the property proposed by the plan to be transferred, is interpreted to include distributions to creditors proposed by the plan to be made over a period of time, then the requirement of subsection (C) will always be met when the requirements of subsection (A) are met. If that was the intent in setting forth this definition, then there would have been no need to include a separate requirement for "commencement of distribution under the plan." It is a common axiom that a statute should be construed to give meaning to all of its provisions, if possible. (Citations omitted.)
. . . . .
Although the statutory definition of "substantial consummation" is not entirely clear, the Court concludes that distribution to creditors over a period of time are not the types of transfers of property proposed by the plan to be transferred contemplated in subsection (A). In order to give effect to the provision requiring only commencement of such distributions, it must be concluded that the property transfers contemplated in subsection (A) include other types of transfers such as are often contemplated on or shortly after the effective date of a confirmed plan. . . .
Thus, subsections (A) and (C) appear to distinguish between transfers of property to or from the debtor at or near the time the plan is confirmed undertaken to shape the new financial structure of the debtor and distributions of dividends to creditors made over a period of time from operating revenues. "Substantial consummation" requires completion or near completion of the former, but only commencement of the latter.
Hayball, 67 B.R. at 684.
The question presented here as it was before the bankruptcy court must be resolved by means of statutory interpretation. The meaning of "all or substantially all" as set forth at 11 U.S.C. § 1101(2)(A) is a question of law. As noted at the outset, this Court's standard of review is de novo. See Wegner v. Grunewaldt.
In construing legislation, the primary function of the courts is to effectuate legislative intent. Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S. Ct. 1893, 1898, 44 L. Ed. 2d 525 (1975). Where the literal language of the statute does not conclusively reveal legislative intent, the courts must look beyond literal meaning, analyzing the provisions in context with the whole. Kokoszka v. Belford, 417 U.S. 642, 650, 94 S. Ct. 2431, 2436, 41 L. Ed. 2d 374 (1974). Finally, a construction of one part or provision of a *631 statute which renders another part redundant or superfluous should be rejected. All parts of a statute should be given effect. Jarecki v. Searle & Co., 367 U.S. 303, 307-08, 81 S. Ct. 1579, 1582-83, 6 L. Ed. 2d 859 (1961); see also In re Arnett, 731 F.2d 358, 361 (6th Cir.1984) cited with approval in Hayball, 67 B.R. at 684.
Applying these above guidelines, this Court concludes that the Hayball rationale is more convincing. To apply a majority of payments rule as the bankruptcy court did or an even more substantial requirement as per Heatron, would not effectuate what this Court believes to be the legislative intent of sections 1102(2) and 1127(b). In fact, such a construction would contravene the basic purpose of a bankruptcy reorganization that is, to provide for "a new reorganized company capable of sailing forth in the cold cruel business world with no longer the protective wraps of the federal bankruptcy courts." In re Seminole Park and Fairgrounds, Inc., 502 F.2d 1011, 1014 (5th Cir.1974) cited with approval in Hayball, 67 B.R. at 684.
The facts of this case illustrate why a majority of payments rule is unworkable. With respect to FmHA's undersecured claim, a majority of payments rule would allow a confirmed plan to be subject to modification as late as 1991.[4] With respect to FmHA's secured claim, the majority of payments rule of construction would mean that a fifty percent recovery would not be made until after November 16, 2003.[5]
Under the rationale of Heatron, even a payment schedule effectuating a fifty percent completion would satisfy the requirements of 11 U.S.C. § 1101(2)(A). Like the court in Hayball, this Court finds that subsections (A) and (C) of 11 U.S.C. § 1101(2) distinguish between transfers of property to or from the debtor at or near the time the plan is confirmed and distributions of dividends to creditors made over a period of time from operating revenues. "Substantial consummation" requires completion or near completion of the former, but only commencement of the latter. See Hayball, supra.
In addition, this Court points out that the debtors were appointed by Article III of the final amended plan as "disbursing agents." This provision confirms the fact that as "disbursing agents," the debtors were to make all of the cash payments under the plan. In other words, the debtors wore two hats the first as debtors in possession of the property which had been transferred to them under the terms of the plan, and the second as disbursing agents of the cash payments to be made. The former status effectuating a "transfer of all or substantially all of the property proposed by the plan to be transferred" (section 1101(2)(A)) and the latter effectuating the "commencement of distribution under the plan (section 1101(2)(C)).
For these reasons, the reasoning of the bankruptcy court was flawed in this case as a matter of law. Accordingly, the Court will enter an order consistent with this opinion reversing the decision of the bankruptcy court.
NOTES
[1] The bankruptcy court's findings of fact note that in addition to a dramatic decrease in the value of farmland in South Dakota, one quarter section of the particular land in question did experience a further downshift due to an increase in the salt content of the soil, requiring that it be returned from irrigated cropland to pastureland.
[2] 11 U.S.C. § 1141(a) provides, "Except as provided in subsections (d)(2) and (d)(3) of this section, the provisions of a confirmed plan bind the debtor, any entity issuing securities under the plan, any entity acquiring property under the plan, and any creditor, equity security holder, or a general partner in, the debtor, whether or not the claim or interest of such creditor, equity security holder, or general partner is impaired under the plan, and whether or not such creditor, equity security holder, or general partner has accepted the plan."
[3] As to FmHA's secured and undersecured claims (Class 6), the secured claims were amortized over thirty-five years with annual payments of $5,045.44. The total secured claim recovery equaled $5,045.44 times 35, which equals $176,590.40. The undersecured claims of FmHA equaled $289,577.62 and were to be paid a ten percent dividend over ten years. Total unsecured claim recovery equaled $2,895.77 times 10, which equals $28,957.70. Total recovery of Class 6 claims over the term of the plan equaled $176,590.40 plus $28,957.70 equaling $205,548.10.
[4] The confirmed plan provided that the undersecured Class 6 claims were to be recovered by means of ten percent dividend payments over a period of ten years with the first payment due one year following confirmation.
[5] Beginning payments date of Class 6 secured claims of May 16, 1986, plus 17½ years. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1551144/ | 86 B.R. 252 (1988)
In re the POINT RESTAURANT AND OYSTER BAR, Debtor.
Bankruptcy No. 87-04466.
United States Bankruptcy Court, N.D. Florida, Pensacola Division.
May 13, 1988.
*253 Michael A. Dessommes, Pensacola, Fla., for debtor.
Philip A. Bates, Pensacola, Fla., for Tax Collector.
ORDER SUSTAINING DEBTOR'S OBJECTION TO CLAIM
LEWIS M. KILLIAN, JR., Bankruptcy Judge.
THIS MATTER came on to be heard upon the debtor's objection to the Escambia County Tax Collector's claim that the debtor's 1987 ad valorem taxes should be treated as administrative expenses under Section 503(b)(1)(B)(i) of the Bankruptcy Code. The debtor contends that the taxes are seventh priority expenses under Section 507(a)(7) of the Bankruptcy Code rather than first priority administrative expenses.
The facts as stipulated to by the parties are as follows: Tangible personal property taxes are assessed as of January 1 of the year for which the tax is payable. Thus the taxes for 1987 were assessed on January 1, 1987. The debtor filed a voluntary petition on August 18, 1987. On September 28, 1987, the Escambia County Tax Collector (hereinafter, Tax Collector) filed a proof of claim in which a then undetermined amount for tangible property taxes for the 1987 tax year were claimed. On November 2, 1987, the tangible personal property assessment roll was certified to the Tax Collector. The tangible property tax notice was mailed to taxpayers on or after November 2, 1987. On December 14, 1987, the Tax Collector filed an administrative claim for these ad valorem taxes in the sum of $1,117.30. The Tax Collector claimed that to the extent such taxes are considered to be assessed after the date of bankruptcy, they should be treated as an administrative expense under § 503(b)(1)(B)(i) of the Code.
Section 503(b)(1)(B)(i) of the Code states:
(b) After notice and hearing, there shall be allowed administrative expenses, other than claims allowed under § 502(f) of this title, including
(1)(B) any tax
(i) incurred by the estate, except of a kind specified in § 507(a)(7) of this title . . .
Section 507(a)(7) of the Code states:
(a) The following expenses and claims have priority in the following order:
(1) First, administrative expenses allowed under § 503(b) of this title . . .
(7) Seventh, allowed unsecured claims of governmental units, only to the extent that such claims are for
. . . (B) A property tax assessed before the commencement of the case and last payable without penalty after one year before the date of the filing of the petition.
The parties hereto consent that if the ad valorem taxes at issue here are deemed by this Court to be "assessed" on January 1 of the year, then the ad valorem taxes in this case clearly fit within the provision of § 507(a)(7). They would be property taxes assessed before the commencement of the case and last payable after one year before the date of the filing of the petition because the taxes for the calendar year 1987 are not due until November 1, 1987, and are not delinquent until April 1, 1988. However, it is the Tax Collector's contention that a tax is not really "assessed" until it is incurred by the taxpayer, and that this does not happen until it is due and payable. Specifically, the Tax Collector argues that in Florida, the only "assessment" made on January 1 is with respect to the value of *254 the property which is to be taxed, as opposed to an assessment of the actual tax. He asserts that the amount of the tax due is determined when the millages are determined and the tax bill computed, in September and October, and that the tax bill is mailed even later, in November. It is therefore the Tax Collector's contention that the ad valorem tax for 1987 was assessed after the bankruptcy petition was filed in August, and should thus be treated as a post-petition expense incident to the operation of the business of the Chapter 11 debtor-in-possession, and not within the provisions of § 507(a)(7)(B).
The debtor-in-possession disputes the Tax Collector's analysis of when the tax was "assessed" and contends that the tax is a pre-petition debt which is entitled to a seventh priority, not an administrative expense priority of the estate. In support thereof, the debtor summarizes the Florida taxing procedure as follows: Property is assessed as of the first day of January of the taxable year as per § 192.042 of the Florida Statutes. Under Florida law, a lien for ad valorem taxes on the property subject to said taxes is created and effective as of January 1st, the same day the property is assessed. Florida Statutes § 192.053. The debtor then defines levy as the "imposition of a tax stated in terms of millages against all appropriately located property by a governmental body authorized by law to impose ad valorem taxes. [emphasis supplied]." Reciting Florida Statute § 197.122:
all taxes imposed pursuant to the State Constitution and laws of this state shall be a first lien, superior to all other liens on any property against which the taxes have been assessed and shall continue in full force from January 1st of the year the taxes were levied until discharged by payment or until barred under chapter 95.
The debtor thus argues that the indebtedness is incurred as of January 1st of that tax year, and that the actual liability for taxes is retroactive from the date of billing to January 1st.
Upon a review of the applicable statutes and case law authority on this issue, this Court concurs with the analysis of the debtor-in-possession herein. As stated in the debtor's memoranda, "we are dealing with 1987 taxes, which were already a lien upon the taxed property as of the prior January 1st, 1987. Although under the Florida scheme the word "assessment" often refers to assessment of the value of the property, § 192.053 makes it clear that in view of the date of the applicability of the tax lien, January 1st, the taxes themselves are assessed as of January 1st, although notice of the amount due is not be (sic) forwarded until after January 1st." The specific property involved herein came into the debtor estate already subject to the tax. The claim for payment and enforcement of the lien is against the property, not a personal action against the debtor estate. (See Florida Statutes § 197.413; Faber, Coe & Gregg of Florida, Inc., v. Wright, 178 So. 2d 51 (Fla.App.1965)). Thus it is not an expense of the debtor incurred in the administration of the within estate. It is accordingly,
ORDERED AND ADJUDGED that the debtor-in-possession's objection to the Escambia County Tax Collector's claim for an administrative expense priority for the 1987 ad valorem taxes be, and it hereby is, sustained. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1551153/ | 86 B.R. 695 (1988)
In re Ralph C. McAULEY, Debtor.
Ralph C. McAULEY and Carolyn A. McAuley, Plaintiffs,
v.
UNITED STATES of America, Defendant.
Bankruptcy No. 85-2834-BKC-8P1, Adv. No. 87-194.
United States Bankruptcy Court, M.D. Florida, Tampa Division.
May 13, 1988.
Shirley C. Arcuri, Tampa, Fla., for plaintiffs.
Hillary B. Burchuk, U.S. Dept. of Justice, Washington, D.C., U.S. Attorney's Office, Tampa, Fla., for defendant.
ORDER ON MOTION TO DISMISS
ALEXANDER L. PASKAY, Chief Judge.
It is not unusual that in the course of administration of cases under Title 11, *696 bankruptcy courts are called upon to resolve either actual or perceived conflicts between provisions of the Bankruptcy Code and provisions of some State or Federal Statute. To resolve a conflict with State law does not ordinarily present any difficulty simply because the Supremacy Clause of the Constitution of the United States, Article I, dictates a resolution of any conflict in favor of Federal law over State law and in the context of bankruptcy in favor of Title 11 of the United States Code, the Bankruptcy Code. However, the situation is markedly different when the conflict is between a Federal Statute and the Bankruptcy Code. The situation is even more complex when the conflict is not only between specific conflicting statutory provisions of the two statutes but between specific and clearly enunciated policy aims of the two statutes involved. This is precisely the situation involved in the matter under consideration.
The matter presented for this Court's consideration is in the context of an adversary proceeding instituted by Ralph C. McAuley (Debtor) and Carolyn A. McAuley (Mrs. McAuley), his spouse, who is not herself a Debtor involved in any case under the Bankruptcy Code.
The Complaint was filed against the United States and the Internal Revenue Service and consists of three counts. In Count I both Plaintiffs seek a determination of their tax liability for the years 1979, 1980 and 1981 pursuant to § 505 of the Bankruptcy Code. In Count II the Plaintiffs (sic) seek a determination that their (sic) tax liability, if it exists, is a dischargeable obligation and not within the exceptive provisions of § 523(a)(1)(A) and § 1141(d)(2) of the Bankruptcy Code. In connection with Count II, it is to be noted that the Debtor concedes that Mrs. McAuley, the Debtor's spouse, has no standing to assert a viable claim of dischargeability simply because she is not a debtor and not seeking a discharge. In Count III both Plaintiffs seek injunctive relief prohibiting the IRS to assess a tax liability against the Plaintiffs and attempt to collect taxes for the years in question. The Government promptly challenged all claims asserted by the Plaintiffs in their Complaint and sought a dismissal with prejudice of all the claims as they relate to the Defendant's spouse.
The primary thrust of the Government's Motion is based on a three-fold proposition. First, it is the Government's contention that this Court lacks jurisdiction over the United States of America by reason of the doctrine of sovereign immunity; second, this Court is clearly without jurisdiction to consider any claims asserted by Carolyn A. McAuley who is not a debtor involved in this Chapter 11 case; third, the Debtor is not entitled to any injunctive relief by virtue of the Anti-Injunction Statute, 26 U.S.C. § 7421 and the Complaint should be dismissed based on the Declaratory Judgment Statute, 28 U.S.C. § 2201.
Sovereign Immunity
It is beyond dispute that the United States of America, as a sovereign, is immune from suits unless there is a specific statute enacted by Congress which expressly waived the sovereign immunity of the United States. Affiliated Ute Citizens of Utah vs. United States, 406 U.S. 128, 141, 92 S. Ct. 1456, 1466, 31 L. Ed. 2d 741 (1972), reaffirming, United States vs. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 769, 85 L. Ed. 1058 (1941); Hawaii vs. Gordon, 373 U.S. 57, 83 S. Ct. 1052, 10 L. Ed. 2d 191 (1963); United States vs. Alabama, 313 U.S. 274, 281, 61 S. Ct. 1011, 1013, 85 L. Ed. 1327 (1941); United States vs. Shaw, 309 U.S. 495, 60 S. Ct. 659, 84 L. Ed. 888 (1940); United States vs. Transocean Air Lines, Inc., 386 F.2d 79 (5th Cir.1967), cert. denied, 389 U.S. 1047, 88 S. Ct. 784, 19 L. Ed. 2d 839 (1968).
Prior to the enactment of the Bankruptcy Reform Act of 1978, Public Law 95-595, the Bankruptcy Court's jurisdiction to determine dischargeability of tax liabilities was governed by § 2(a)(2A) of the Bankruptcy Act of 1898. This Statute provided that courts of bankruptcy had jurisdiction to:
"Hear and determine, or cause to be heard and determined, any question arising as to the amount or legality of any *697 unpaid tax . . . and in respect to any tax, whether or not paid . . . "
and was amended only stylistically in 1966.
The Court of Appeals having considered the legislative history of the 1966 amendment of this section, S.Rept. No. 999, 89th Cong., 2d Sess. (1966), concluded that the Government's reliance on the majority report of the Senate Finance Committee in arguing that Congress did not intend to waive sovereign immunity was misplaced and that a thorough examination of the legislative history supported the conclusion that the amendment of this Section was intended to grant jurisdiction to the bankruptcy court in factual situations of the type involved in that case. In so doing, the Court of Appeals in Bostwick v. U.S., 521 F.2d 741 (8th Cir.1975) relied on the case of In re Durensky, 377 F. Supp. 798 (1974) where the District Court discussed in great detail the scope and reach of § 2(a)(2A) of the Bankruptcy Act of 1898. Following Bostwick and Durensky, other courts also concluded that the bankruptcy courts have jurisdiction to determine tax liabilities of the debtor even though the Government has not filed a proof of claim in the particular case. In the Matter of John West Gwilliam, 519 F.2d 407 (9th Cir.1975); In re Murphy, 381 F. Supp. 813, 816-817 (N.D. Ala.1974) (rev'd on other grounds); In re Savage, 329 F. Supp. 968, 969 (C.D.Calif. 1971); In re Curtis, 69-1 U.S. Tax Cas. 9433 (W.D.Mich.1969). See also, In re Century Vault Co., 416 F.2d 1035, 1041 (3rd Cir.1969); In re Standard Milling Co., Inc., 324 F. Supp. 386 (N.D.Tex.1970).
The jurisdiction granted to determine tax liabilities in § 2(a)(2A) of the Bankruptcy Act of 1898 was reenacted in § 505 of the Bankruptcy Code with only with some stylistic changes. Thus, it is evident that the cases which interpreted the scope of § 2(a)(2A) of the Bankruptcy Act of 1898 are not only persuasive but controlling. Based on the foregoing this Court is satisfied that under Bostwick and its progenies the Government's claim based on sovereign immunity must fail and the bankruptcy court has jurisdiction to consider the claim of the Debtor, Mr. McAuley, seeking a determination of his tax liability and, if found to exist, the dischargeability of same.
The Bankruptcy Code, unlike the Bankruptcy Act of 1898, now contains a specific provision dealing with the subject of sovereign immunity. However, there is nothing in § 106 which compels a different conclusion. § 106 which deals with the waiver of sovereign immunity in subclause (a) of this section provides:
(a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit's claim arose.
Even a cursory reading of this section indicates that the section was designed to deal with the situation where a debtor and the estate of a debtor seeks to assert a claim against a governmental unit and seeks monetary damages. According to the legislative history, this section was merely a restatement of a policy followed generally by Congress and it was designed to achieve approximately the same result that would prevail outside of bankruptcy. Minutes on Committee of the Judiciary, Sen.Rep. No. 95-989. As the Committee Report indicates, the Section represents a slight two-fold change from the prevailing policy outside of bankruptcy. First, a filing of a proof of claim against the estate by a governmental unit operates as a waiver of the sovereign immunity with respect to all compulsory counterclaims and, second, the governmental unit cannot receive a distribution from the estate without subjecting it to any liability it has to the estate within the confines of the compulsory counterclaim rule. Matter of Campbell Enterprises, Inc., 66 B.R. 200 (Bkr.N.J.1986). The Notes also indicated that the estate may offset against the allowed claim of the governmental unit any claim which the estate has against the governmental unit even though the claim by the estate against the governmental unit is merely a permissive counterclaim. In the present instance, the Debtor obviously does not seek any monetary damages from the Government *698 but merely a prohibition against collecting any taxes from the Debtor until the Debtor is able to obtain a determination that the taxes owed by him, if any, are dischargeable.
This leaves for consideration, however, whether or not the defense of sovereign immunity is available to the Government as to the claim asserted by Mrs. McAuley, a non-debtor. Ordinarily, a taxpayer may not litigate the tax liability of another taxpayer. However, as noted earlier, the grant of jurisdiction by § 505 of the Bankruptcy Code to determine a tax liability by the bankruptcy court is not limited to the tax liability of the Debtor but includes the power to determine the amount or legality of any tax. This construction of the Section was recognized by the bankruptcy court in the case of In re Major Dynamics, Inc., 14 B.R. 969 (Bankr. S.D.Cal.1981) where the Court held that the plain language of § 505(a)(1) clearly indicates that the bankruptcy court may determine the amount or legality of any tax to determine disputes between even third-parties, i.e. non-debtors and the Internal Revenue Service in an appropriate case. In the view of the Bankruptcy Court in Major Dynamics this result is completely in accord with the general policy of the Bankruptcy Code which was to authorize bankruptcy courts to resolve all disputes involving a debtor's estate. This same result was reached in the case of In re Brandt-Airflex, 69 B.R. 701 (Bkrtcy.E.D.N.Y.1987). Based on the foregoing, this Court is satisfied that the Government's claim of sovereign immunity is equally of no avail vis a vis the claim of Mrs. McAuley at least to the limited extent discussed below.
Anti-Injunction Statute and Declaratory Judgment Act
The next jurisdictional attack by the Government on the Plaintiffs rights to the relief they seek is based on the Declaratory Judgment Statute, 28 U.S.C. 2201 which provides as follows:
§ 2201. Creation of remedy
In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1954 or a proceeding under section 505 or 1146 of title 11, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
There is nothing in the Declaratory Judgment Statute, 28 U.S.C. § 2201 which even remotely indicates that it is meant to be a prohibition against a determination by the bankruptcy court by way of declaratory judgment whether or not a tax liability of a debtor is or is not dischargeable.
This leaves for consideration a more troublesome contention of the Government, which is based on the Anti-Injunction Statute, 26 U.S.C. § 7421. The Anti-Injunction Statute, 26 U.S.C. § 7421 reads in pertinent part as follows:
"Except as provided in sections 6212(a) and (c), 6213(a), and 7426(a) and (b)(1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed."
It should be stated at the outset that in the case of South Carolina vs. Regan, 465 U.S. 367, 104 S. Ct. 1107, 79 L. Ed. 2d 372 (1984), the Supreme Court, speaking through Justice Blackmun, clearly established that the Anti-Injunction Statute was not intended to operate as an absolute bar to an action for injunction by an aggrieved party where Congress has not provided the aggrieved party with an alternative legal way to challenge the validity of the tax, citing, J.L. Enochs vs. Williams Packing & Navigation Co., Inc., 370 U.S. 1, 82 S. Ct. 1125, 8 L. Ed. 2d 292 (1962). Thus a taxpayer may, under appropriate circumstances, obtain injunctive relief against collection efforts of a tax by the Government. There are numerous courts which recognized this *699 judicially created exception to the Anti-Injunction Statute. In the Matter of Campbell, supra; In re Original Wild West Foods, Inc., 45 B.R. 202, 206 (Bkrtcy.W.D. Tex.1984); In re Jon Co., Inc., 30 B.R. 831 (D.Colo.1983); In re H & R Ice Co., Inc., 24 B.R. 28 (Bkrtcy.W.D.Mo.1982); In re O.H. Lewis Co., Inc., 40 B.R. 531 (Bkrtcy.D.N.H. 1984); A & B Heating & Air Conditioning, Inc. v. U.S., 48 B.R. 397 (Bkrtcy.M.D. Fla.1984). This Court is not unmindful of the decision of the Eleventh Circuit in U.S. v. Huckabee Auto Co., Inc., 46 B.R. 741 (M.D.Ga.1985), aff'd, 783 F.2d 1546 (11th Cir.1986) in which the Court of Appeals held that a bankruptcy court lacks jurisdiction to grant injunctive relief against the Government involving collection of taxes. Ordinarily, this Court would be constrained to follow the decision of the Eleventh Circuit in Huckabee. However, the very same Court of Appeals which decided Huckabee subsequently upheld this Court's decision in A & B Heating, supra, in which this Court enjoined the Government from attempting to collect the 100% penalty imposed by 26 U.S.C. § 6672 on responsible officers of a corporation whose plan of reorganization was confirmed. While the case was remanded, it was remanded only for the limited purpose of determining whether or not the interest of the Government is adequately protected during the consummation of the confirmed Chapter 11 plan. In the Matter of A & B Heating & Air Conditioning, 823 F.2d 462 (11th Cir. 1987). In A & B Heating the Court recognized the proposition that the Anti-Injunction Statute is not an absolute bar and under appropriate circumstances the Bankruptcy Court has the power to enjoin the Government.
The defense of the Anti-Injunction Statute is usually raised by the Government in the instances where a debtor seeks to obtain injunctive protection against collection efforts of the Government from individual non-debtors, i.e. responsible officers of a debtor corporation when the taxes involved the 100% assessment imposed by 26 U.S.C. § 6672. In this context, it now has been generally accepted that the tax sought to be imposed on the responsible officers of the debtor corporation is a separate and distinct tax from the tax liability of a prime obligor, i.e. the debtor corporation. In re Campbell, supra. There are respectable authorities to support the proposition that the bankruptcy court has power to enjoin the Government temporarily from attempting to collect the 100% penalty assessment from non-debtors notwithstanding the prohibition of the Anti-Injunction Statute. In re Jon Co., Inc., supra; In re J.K Printing Services, Inc., 49 B.R. 798 (Bkrtcy.W. D.Vir.1985); In re Dore & Associates Contracting, Inc., 45 B.R. 758 (Bkrtcy.N.D. Mich.1985); Matter of A & B Heating & Air Conditioning, Inc., supra; In re Original Wild West Foods, Inc., supra; In re Datair Systems Corp., 37 B.R. 690 (Bkrtcy.N.D.Ill.1983); In re H & R Ice Co., Inc., supra; In re County Wide Garden Center, Inc., 25 B.R. 203 (Bkrtcy.S.D.N.Y. 1982); In re Major Dynamics, Inc., supra.
The matter under consideration does not involve the 100% penalty but only the tax liability of Mrs. McAuley, a non-debtor, based solely on the fact that she signed the tax return in question jointly with her husband, the Debtor. Thus, it is clear that unlike the 100% penalty which has been traditionally recognized to represent an independent, separate and distinct liability from the liability of corporate debtors, the liability of Mrs. McAuley in this instance is based solely on the liability of her husband, which liability is inseparable from his and not an independent and separate liability of her own.
The factual setting closest to the matter under consideration appears in In re Brandt-Airflex Corp., supra. Brandt-Airflex involved a complaint filed by a debtor who sought a declaratory determination of a debtor's tax liability for withholding taxes for the years of 1983, 1984 and 1985. In its complaint the debtor contended that the tax liability involved should be imposed on Long Island Trust Company (LITC) on the basis that LITC was in fact an employer. In Brandt-Airflex, the Court concluded that LITC was an indispensable party to the suit; that the Bankruptcy Court had the jurisdiction to determine *700 the liability of LITC for withholding taxes pursuant to § 505(a) of the Bankruptcy Code; and the fact that LITC was not a debtor was of no consequence and did not deprive the Bankruptcy Court of subject matter jurisdiction. The Court in the Brandt-Airflex case, citing In re Major Dynamics, Inc., supra, held that:
"In the present case, as in Bostwick, there is no reason to look beyond the plain meaning of the statute. The plain language of Section 505(a)(1) provides, subject to the limitations in section 505(a)(2) that the bankruptcy court may determine the amount or legality of any tax. It follows that the bankruptcy court has jurisdiction to determine disputes between third-party creditors and the IRS in an appropriate case. This result is in line with the general policy of the Bankruptcy Code to allow the bankruptcy court to resolve all disputes affecting a debtor's estate."
As noted earlier, in the present instance, the liability of the debtor's spouse is the same as the liability of the debtor. Based on this distinction, there is hardly any doubt that she is an indispensible party to the Debtor's suit to determine his liability. It is evident that to force her to litigate her liability before the Tax Court would not make any sense. This is so because this course of action may produce two inconsistent results one by this Court concluding that the Debtor is not indebted to the Government for unpaid taxes and the other by the Tax Court that she is liable for the same taxes for which her husband was found not to be liable. Since a determination of the issue in favor of the Debtor would be controlling as determinative of the liability of the Debtor's spouse, it would be pointless and inconsistent with plain common sense not to consider the single issue raised in Count I which involves both Plaintiffs. See, In re Brandt-Airflex Corp., supra.
As noted earlier, the claim set forth in Count II of the Complaint seeks a determination of dischargeability vel non of the tax liability of Mr. and Mrs. McAuley. It is evident that while Mr. McAuley certainly has a right to obtain such a determination, it is equally evident that Mrs. McAuley does not, because she is not a debtor who seeks relief under any of the operating chapters of the Bankruptcy Code, and for this reason her claim set forth in Count II should be dismissed.
This leaves for consideration the right to injunctive relief sought by Mr. and Mrs. McAuley in Count III. Inasmuch as the claim as plead in this count falls far short from the allegations required for setting forth a viable claim for injunctive relief, the Motion to Dismiss is well taken and Count III should be dismissed without prejudice.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Government's Motion to Dismiss Count I of the Complaint be, and the same is hereby denied as to the claim of both Mr. and Mrs. McAuley. It is further
ORDERED, ADJUDGED AND DECREED that the Government's Motion to Dismiss the claim of Mrs. McAuley as set forth in Count II of the Complaint be, and the same is hereby, granted and her claim seeking a determination of dischargeability is dismissed but denied as to Mr. McAuley. It is further
ORDERED, ADJUDGED AND DECREED that the Government's Motion to Dismiss the claim for injunctive relief set forth in Count III of the Complaint be, and the same is hereby, granted without prejudice to the Plaintiffs to file an amended Count III within 30 days of the date of the entry of this Order if so deemed to be advised. It is further
ORDERED, ADJUDGED AND DECREED that the new Complaint shall be a complete restatement of all claims in one single pleading and if one is filed the Government shall file its Answer to each of the Counts set forth in the Amended Complaint within twenty (20) days from the date of service of the copy of the Amended Complaint. It is further
ORDERED, ADJUDGED AND DECREED if no Amended Complaint is filed, then the matter shall be scheduled for a *701 pretrial conference, by separate notice, of the claims which have not been dismissed by this Order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600451/ | 1 So.3d 185 (2009)
BROWN
v.
STATE.
No. 2D08-5874.
District Court of Appeal of Florida, Second District.
January 14, 2009.
Decision without published opinion. Mand.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600366/ | 1 So.3d 725 (2008)
J.M.Y.
v.
R.R.
No. 2008-805.
Court of Appeal of Louisiana, Third Circuit.
December 11, 2008.
Bruce Achille Gaudin, Attorney at Law, Opelousas, LA, for Defendant-Appellee, R.R.
*726 Dwight David Reed, Attorney at Law, Opelousas, LA, for Plaintiff-Appellant, J.M.Y.
Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and CHRIS J. ROY, SR.,[*] Judges.
PICKETT, Judge.
The plaintiff, J.M.Y.,[**] appeals a judgment of the trial court granting exceptions of no right of action and no cause of action and dismissing his suit.
STATEMENT OF THE CASE
J.M.Y. and A.F.Y. were married when A.F.Y. gave birth to a son in 1994. J.M.Y. and A.F.Y. later divorced, and J.M.Y. was ordered to pay child support. On March 7, 2008, J.M.Y. filed suit against R.R. alleging that R.R. was the biological father of the child born during the marriage. J.M.Y. claimed that he is entitled to reimbursement from R.R. for the child support payments he has made. J.M.Y. filed an amended petition on April 9, 2008, to add A.F.Y. as a defendant and sought to have R.R. submit to testing to determine if he is the biological father of the child. In addition to reimbursement from R.R. for past child support payments, he sought reimbursement from A.F.Y. for past child support payments and from both R.R. and A.F.Y. for future child support payments.
R.R. filed exceptions of no cause of action and no right of action. The trial court held a hearing on May 27, 2008, and granted the exceptions. A judgment in conformity with the trial court's ruling was signed on May 29, 2008. J.M.Y. now appeals.
ASSIGNMENT OF ERROR
The plaintiff-appellant, J.M.Y., asserts one assignment of error:
The Court erred when it granted Defendant's Exception of No Right of Action or Cause of Action.
DISCUSSION
The supreme court discussed the standard of review of an exception of no cause of action in Fink v. Bryant, 01-0987, pp. 3-4 (La.11/29/01), 801 So.2d 346, 348-349 (citations omitted):
The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether [the] plaintiff is afforded a remedy in law based on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. In reviewing a trial court's ruling sustaining an exception of no cause of action, the appellate court and this Court should subject the case to de novo review because the exception raises a question of law and the trial court's decision is based only on the sufficiency of the petition. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can *727 prove no set of facts in support of any claim which would entitle him to relief.
This court discussed the standard of review of an exception of no right of action in Mississippi Land Co. v. S & A Properties II, Inc., 01-1623, pp. 2-3 (La. App. 3 Cir. 5/8/02), 817 So.2d 1200, 1202-03 (citations omitted):
An exception of no right of action has the function of determining whether the plaintiff has any interest in the judicially enforced right asserted. The function of this exception is to terminate the suit brought by one who has no judicial right to enforce the right asserted in the lawsuit. The determination of whether a plaintiff has a right of action is a question of law. Accordingly, we review exceptions of no right of action de novo.
Evidence can be admitted to support the allegations in a exception of no right of action, but if no evidence is offered the court must decide the exception solely on the basis of the plaintiff's allegations. Indus. Co., Inc. v. Durbin, 02-0665 (La.1/28/03), 837 So.2d 1207.
"The husband of the mother is presumed to be the father of all children born or conceived during the marriage." Former La.Civ.Code art. 184. At the time of the child's birth in 1994, J.M.Y. had 180 days from the time the husband "learned or should have learned" about the birth of the child to file a suit to disavow paternity. Former La.Civ.Code art. 189. He failed to do so, and his action for disavowal is perempted. See Pounds v. Schori, 377 So.2d 1195 (La.1979). (Under current law, as amended in 2005, there is a one year liberative prescription period for filing a disavowal action.)
J.M.Y. does not seek to disavow his child. Instead, he seeks to be reimbursed for his child support obligation by R.R. He cites La.Civ.Code art. 227 to support his claim against R.R. Article 227 states:
Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.
In his brief, J.M.Y. argues that this article applies with equal force to biological fathers and presumed fathers. He further argues that nothing in the law prevents him from being reimbursed for child support payments from R.R., whom he claims is the biological father of the child.
Because J.M.Y. is presumed to be the father of the child, he has an obligation to support the child. While J.M.Y. alleges R.R. may be the biological father of the child, that fact, if established may not extinguish the obligation of J.M.Y. to support the child.
In Gallo v. Gallo, 03-0794 (La.12/3/03), 861 So.2d 168, a man sued his ex-wife to recover money he paid as child support for a child born during the marriage that he learned years later was not his biological daughter. The supreme court denied his claim for reimbursement. In its opinion, the supreme court stated:
Proper analysis recognizes that it is not the adults but the child who is at the center of this unfortunate controversy. A father's obligation to support his children is a "primary, continuous obligation," based during marriage on parental authority and after divorce on tutorship. Blakesley, Louisiana Family Law § 16.02 at 16-5. The child is the veritable creditor of each parent's unilateral obligation for the child's upbringing with the special expenses it entails. Id. at 16-6. This father-child relationship between Mr. Gallo and M.L.G. did not end with blood testing that showed Mr. Gallo was not the biological father of M.L.G. He remained her legal presumptive father and was identified as such in the three-party acknowledgment. Fatherhood rests on something more than genes. See, T.D. v. M.M.M., 98-0167 at *728 2 (concurring opinion), (La.2/2/99), 730 So.2d 873 at 878, citing Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). Furthermore, Louisiana has recognized dual fatherhood. In Smith v. Cole, 553 So.2d 847, 854 (La.1989), this court held that the failure of the husband of the mother of the child to exercise his right to disavow paternity timely established the child as his legal and legitimate child. The legal tie of paternity would not be affected by subsequent proof of the child's actual biological tie. This court specifically held that although the child was conclusively presumed to be the husband's legitimate offspring, the biological father could not escape his support obligations. The question of whether the legal, presumed father also shared in the support obligation was not before the court, and this court declined to hold the legal father will, in all factual contexts, be made to share the support obligations with the biological father and the mother. Id. at 855.
Gallo, 861 So.2d at 178 (footnote omitted).
In Smith, 553 So.2d 847, the mother of a child brought a filiation action against her child's biological father. The biological father claimed that the fact that there was a legal father extinguished his obligation to support the child. The supreme court held that even where there is dual paternity (a legal father and a biological father), the legal father's obligation to support the child does not extinguish the biological father's obligation to support the child. The court did not decide whether the opposite was true, i.e., whether the biological father's obligation to support the child extinguishes the legal father's support obligation. The court stated: "The question of whether the `legal' father in this case also shares the support obligation is not before the court. We decline for now to hold the legal father will, in all factual contexts, be made to share the support obligations with the biological father and the mother.8" Id. at 855. The footnote states:
The best interest of the child should be considered in determining whether the court in a given case will impose the obligation of support on the person who, by virtue of Article 184, is conclusively presumed to be the father of the child. While LSA-C.C. art. 227 may provide the basis for such an imposition on the legal father, the fact that there is a biological father capable of providing support cannot equitably be ignored.
Id.
The matter before us, however, does not involve an issue of dual paternity. Although J.M.Y. alleges R.R. is the biological father, he never filed a disavowal action. R.R. has not acknowledged paternity. Louisiana Civil Code Article 198 gives a man one year from the date of the child's birth to establish paternity if another man is presumed to be the child's father. That was never done. Therefore, J.M.Y. is the child's legal father. Smith, 553 So.2d at 854-55. Louisiana Civil Code Article 197 states that a child may institute an action to prove paternity, yet A.F.Y. has never filed a filiation action on behalf of the child.
The trial court was correct in its determination that there is no cause of action under Louisiana law for a legal father to demand reimbursement for child support he has paid from an individual who has never been established to be the biological father. The trial court was correct in finding J.M.Y. has no right of action as well.
We affirm the ruling of the trial court in all respects. Costs of this appeal are assessed to the plaintiff-appellant.
AFFIRMED.
NOTES
[*] Honorable Chris J. Roy, Sr., participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.
[**] We have used initials throughout the opinion to protect the identity of the minor child. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3085788/ | THE THIRTEENTH COURT OF APPEALS
13-13-00537-CV
$1,689.00 U.S. CURRENCY, 67 GAMBLING DEVICES, ASSORTED GAMBLING
EQUIPMENT, PARAPHERNALIA AND PROCEEDS
v.
THE STATE OF TEXAS
On Appeal from the
357th District Court of Cameron County, Texas
Trial Cause No. 2013-DCL-3869-E
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the appeal should be DISMISSED. The Court orders the appeal
DISMISSED in accordance with its opinion. Costs of the appeal are adjudged against
appellant.
We further order this decision certified below for observance.
April 10, 2014 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1737092/ | 727 N.W.2d 374 (2006)
2007 WI App 19
STEINMANN
v.
STEINMANN.
No. 2006AP619.
Wisconsin Court of Appeals.
December 20, 2006.
Unpublished opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1737332/ | 727 N.W.2d 35 (2006)
STATE
v.
STEVENS
No. 2005AP1455-CR
Supreme Court of Wisconsin
November 6, 2006.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2860243/ | JONES
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00314-CR
Kristina Mary Jones, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 0935894, HONORABLE TOM BLACKWELL, JUDGE PRESIDING
Appellant Kristina Mary Jones was convicted of murder and assessed punishment
of twenty years' imprisonment. Tex. Penal Code. Ann. § 19.02 (West 1994). (1) In two points of
error, Jones appeals. We will affirm the judgment of the trial court.
BACKGROUND
Appellant owned and managed several duplexes in North Austin. Maroun
Moussallem, the victim, responded to a newspaper ad placed by appellant to attract prospective
roommates for her tenants and soon became involved in a personal relationship with appellant.
Appellant allowed Moussallem to manage her apartments, and he performed such tasks as making
minor repairs and collecting rent from the tenants. Appellant testified that Moussallem lived with
her for over a year during which time he abused her both mentally and physically and stole money
from her. Witnesses at trial confirmed the volatile nature of their relationship.
In September 1993, Moussallem began seeing another woman. Moussallem
attempted to collect several thousand dollars from appellant for work allegedly done in connection
with her apartments. Moussallem intended to file a mechanic's lien against appellant's property
on October 11, 1993. Before filing the lien, Moussallem went to appellant's duplex on October
10, 1993 to try one last time to collect the money. Appellant shot Moussallem four times in his
body, reloaded her gun with a different kind of bullet, and then shot him once in the head.
Moussallem died as a result of the wounds. At trial, appellant did not dispute that she killed
Moussallem, but argued that she shot him in self defense and that there had been a pattern of
abuse. The record is unclear as to whether a struggle occurred before appellant shot him. The
jury found that appellant was guilty of murder and that she used a deadly weapon during its
commission.
DISCUSSION
In her first point of error, appellant contends that there was insufficient evidence
to show the offense was committed with a handgun as was alleged in the indictment and that, as
a result, the trial court erred in entering a guilty verdict. In determining the sufficiency of the
evidence to support a criminal conviction, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, a rational trier of fact could find the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979); Griffin v. State, 614 S.W.2d 155,159 (Tex. Crim. App. 1981).
Appellant asserts that there is no evidence in the record to establish that she used
a handgun to kill Moussallem as alleged in the indictment. She argues that there is a legal
distinction between the terms "gun" and "handgun" and that the State was required to specifically
prove appellant used a handgun, rather than just a gun, to commit the crime.
We find an abundance of evidence in the record to show that appellant committed
the offense with a handgun. Officer Susan Myers, the first police officer on the scene, testified,
"And then I asked her where the weapon was. She told me that it was in front of the bathroom
downstairs. I stepped inside and saw that the--there was a handgun, looked like a .38 revolver."
Further, appellant admitted during cross-examination to committing the offense with a handgun.
Appellant was asked the question, "And you shot him the final shot in the head with that handgun
here, State's exhibit No. 30 [a .38 caliber revolver]; is that right?" to which she responded "Yes."
The evidence presented at trial was sufficient for the trier of fact to find beyond reasonable doubt
that appellant committed the offense with a handgun. Accordingly, we overrule appellant's first
point of error.
In her second point of error, appellant alleges that the evidence was insufficient to
show that the deadly weapon alleged in the indictment was actually used to commit the offense
and that the trial court erred in entering an affirmative finding as to appellant's use of that deadly
weapon. Appellant claims that this improper affirmative finding may prevent her from becoming
eligible for release on parole as soon as she would have been had no finding been made. See Polk
v. State, 693 S.W.2d 391, 393 (Tex. Crim. App. 1985).
A handgun is a deadly weapon per se. Ex Parte Campbell, 716 S.W.2d 523, 526-27 (Tex. Crim. App. 1986). Many witnesses, including the first police officer on the scene and
appellant's neighbor, testified that they saw appellant in possession of a gun immediately after the
commission of the murder. Appellant herself told the jury that she used a handgun to shoot
Moussallem. When the use of a handgun is alleged in the indictment, a finding of guilty supports
an affirmative finding that a deadly weapon was used. See Polk, 693 S.W.2d at 394. Appellant's
second point of error is overruled.
CONCLUSION
We affirm the judgment of conviction.
Jimmy Carroll, Chief Justice
Before Chief Justice Carroll, Justices Aboussie and Kidd
Affirmed
Filed: May 1, 1996
Do Not Publish
1. This offense took place before September 1, 1994 and is governed by the law in
effect at the time the offense was committed. Penal Code, 63d Leg., R.S., ch. 399, sec. 1,
§ 19.02, 1973 Tex. Gen. Laws 883, 913, amended by Act of May 28, 1973, 63d Leg., R.S.,
ch. 426, art.2, § 1, 1973 Tex. Gen. Laws 1122, 1123 (Tex. Penal Code Ann. § 19.02, since
amended). Because the code amendments effective September 1, 1994 have no substantive
effect on this offense, the current code is cited for the sake of convenience.
BR WP="BR1">
DISCUSSION
In her first point of error, appellant contends that there was insufficient evidence
to show the offense was committed with a handgun as was alleged in the indictment and that, as
a result, the trial court erred in entering a guilty verdict. In determining the sufficiency of the
evidence to support a criminal conviction, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, a rational trier of fact could find the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979); Griffin v. State, 614 S.W.2d 155,159 (Tex. Crim. App. 1981).
Appellant asserts that there is no evidence in the record to establish that she used
a handgun to kill Moussallem as alleged in the indictment. She argues that there is a legal
distinction between the term | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1922238/ | 104 N.W.2d 562 (1960)
Lucy Bertha BRYAN and Ross J. Bryan, Appellees,
v.
IOWA STATE HIGHWAY COMMISSION and State of Iowa, Appellants.
No. 50061.
Supreme Court of Iowa.
August 2, 1960.
Norman A. Erbe, Atty. Gen., of Iowa, C. J. Lyman, Special Asst. Atty. Gen., John L. McKinney, Ames, Gen. Counsel for Iowa State Highway Commission.
Burnquist, Helsell, Burnquist & Kersten, Fort Dodge, for appellants.
Rider, Bastian & Beisser, Fort Dodge, for appellees.
PETERSON, Justice.
On April 29, 1958, the Iowa State Highway Commission filed proceedings for condemnation of the front section of the home of plaintiffs. The tract was 22.91 feet in depth on the south side, 35 feet in depth on the north side, and 115 feet in length across the front. Plaintiffs' home *563 is located immediately north of Fort Dodge. This property was needed in connection with the relocation of U. S. Highway No. 169.
Plaintiffs appealed from the appraisal of the condemnation jury, and on trial of the case the District Court jury returned a verdict for $6,000.
Defendants filed motion for new trial which was overruled. The Highway Commission and State of Iowa have appealed.
Appellants do not assign error as to the amount of the verdict. They allege the District Court committed error: 1. In entering order permitting plaintiffs to examine the computations, conclusions and opinions of the three appraisers retained by defendants in connection with preparation for trial of the case. 2. In failing to submit to the jury defendants' requested instruction No. 3. 3. In failing to submit to the jury defendants' requested instruction No. 5.
Sometime prior to the trial of the case plaintiffs filed "Application for production and inspection of certain papers." The application requested that the three realtors in Fort Dodge who had examined and appraised the property for the highway commission be ordered to produce all their original papers, and notes incidental thereto, prepared by said appraisers, for the inspection of plaintiffs and their attorneys. Upon hearing, the trial court ordered production of the papers. The appraisals, when produced, contained a careful analysis of the property, together with the appraisers' conclusions and opinions as to damages.
Defendants filed petition for writ of certiorari in this court as against such order of the trial court. In the petition defendants did not allege that the order was in violation of Rule 141(a) Rules of Civil Procedure, 58 I.C.A., Issuance of the writ was denied.
1. The provision of the new Rule 141(a) R.C.P., that a writing containing the conclusion of an expert need not be produced for an adversary, appears to apply here.
Appellant's first assignment of error as to Rule 141(a) is no basis for reversal as the Highway Commission did not object to plaintiffs' application on the ground it would violate Rule 141(a). The question was therefore not properly presented to the trial court, and cannot be raised for the first time here.
The general principle has been established through many decisions of this court. It is only necessary to cite and quote from a few. Conkling v. Standard Oil Co., 138 Iowa 596, 600, 116 N.W. 822, 824; Johnston v. Cedar Rapids & M. C. Ry. Co., 141 Iowa 114, 119 N.W. 286; Shultz v. Shultz, 224 Iowa 205, 275 N.W. 562; In re Estate of Sarbaugh, 231 Iowa 320, 1 N.W.2d 105, 107; Weimer v. Lueck, 234 Iowa 1231, 15 N.W.2d 291; Jensvold v. Chicago Great Western Ry. Co., 236 Iowa 708, 18 N.W.2d 616; Bokhoven v. Hull, 247 Iowa 604, 75 N.W.2d 225; Siebert v. State Farm Mut. Ins. Co., Iowa, 103 N.W.2d 757.
In re Sarbaugh's Estate, supra, we said [231 Iowa 320, 1 N.W.2d 107]: "Accordingly, we are of the opinion that the questions now presented were not properly raised below and should not be considered for the first time in this court."
To the same effect see Weimer v. Lueck, supra [234 Iowa 1231, 15 N.W.2d 295]: "The proposition stated in the assignment of error was not submitted to or decided by the trial court. It therefore cannot be considered here * * *"
In Jensvold v. Chicago Great Western R. Co., supra, the court said [236 Iowa 708, 18 N.W.2d 619]: "Appellee herein is raising a question not presented to the district court. This court has uniformly held this cannot be done."
II. Requested instruction No. 3 in substance was an instruction to the jury: "To assume that the highway and access road upon completion will be used in a lawful and proper manner."
*564 Such an instruction was superfluous. This fact will be assumed without the necessity of a specific statement by the court.
Requested instruction No. 5 was to the effect that the jury should not allow damages for taking plaintiffs' direct access, unless the access provided is not reasonable and is not free and convenient.
At the time of the trial the commission was working on the highway. It was partially completed in front of plaintiffs' property. The plans and specifications in evidence provide for an access, and it would be presumed that published plans as to the highway and the access would be followed without injecting the issue into the case in the form of an instruction.
The trial court's instructions 8, 9 and 10 fully cover all elements necessary in connection with submission of the case to the jury. The instructions submitted must be considered as a whole and if all necessary matters pertaining to the case are included, the failure to include some unnecessary specific circumstances do not form the basis for reversal. In re Behrend's Will, 233 Iowa 812, 10 N.W.2d 651; Fagen Elevator v. Pfiester, 244 Iowa 633, 56 N.W.2d 577; Mathis v. Des Moines City Ry. Co., 196 Iowa 1028, 195 N.W. 620; Sandvig v. Nichtern, 196 Iowa 1124, 196 N.W. 39.
In In re Behrend's Will, supra, this court stated [233 Iowa 812, 10 N.W.2d 655]: "* * * instructions must be taken and considered as a whole, and if those given fully, fairly, and correctly present the issues and the law, they are sufficient."
The case is affirmed.
Affirmed.
LARSON, C. J., and GARFIELD, HAYS, THOMPSON, GARRETT, and THORNTON, JJ., concur.
OLIVER, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922275/ | 11 Wis. 2d 111 (1960)
CITY OF MILWAUKEE, as a Water Public Utility, Appellant,
v.
PUBLIC SERVICE COMMISSION, Respondent. [Four cases, Nos. 24, 25, 26, and 27.]
Supreme Court of Wisconsin.
June 7, 1960.
June 28, 1960.
*114 For the appellant there was a brief by John J. Fleming, city attorney, and Harry G. Slater, deputy city attorney, and oral argument by Mr. Slater.
For the respondent Public Service Commission the cause was argued by William E. Torkelson, chief counsel, with whom on the brief was John W. Reynolds, attorney general.
For the respondent village of Whitefish Bay there was a brief and oral argument by Harry J. Hayes, village attorney, and for the respondent village of Fox Point by Fraley N. Weidner, village attorney.
For the respondent city of Glendale there was a brief and oral argument by George D. Prentice, city attorney.
BROADFOOT, J.
Orders or determinations of the Public Service Commission are reviewable in the manner provided *115 in ch. 227, Stats. All references herein to statutes are to the 1957 statutes. Sec. 227.15, Stats., provides:
"Administrative decisions, which directly affect the legal rights, duties, or privileges of any person, ... shall be subject to judicial review as provided in this chapter; ..."
Sec. 227.16, Stats., provides in part:
"(1) Except as otherwise specifically provided by law, any person aggrieved by a decision specified in sec. 227.15 and directly affected thereby shall be entitled to judicial review thereof as provided in this chapter."
In Greenfield v. Joint County School Comm. 271 Wis. 442, 447, 73 N. W. (2d) 580, we held:
"The right of appeal is statutory and does not exist except where expressly given, and cannot be extended to cases not within the statute. A person is aggrieved by a judgment whenever it operates on his rights of property or bears directly on his interest. An `aggrieved party' within the meaning of a statute governing appeals is one having an interest recognized by law in the subject matter which is injuriously affected by the judgment. In re Fidelity Assur. Asso. (1945), 247 Wis. 619, 20 N. W. (2d) 638. The word `aggrieved' refers to a substantial grievance, a denial of some personal or property right or the imposition of a burden or obligation. Bowles v. Dannin (1938), 62 Rawle I. 36, 2 Atl. (2d) 892."
The above quotation was cited with approval in Milwaukee v. Milwaukee County School Comm. 8 Wis. (2d) 226, 229, 99 N. W. (2d) 186. Milwaukee contends that the court was there dealing with the school laws and those decisions are not applicable to petitions for review under ch. 227, Stats. However, the expression "aggrieved party" or a statement of when a person is aggrieved by a judgment or order has the same meaning under any section of our *116 statutes unless specifically limited or expanded by the words of the particular statute. Sec. 227.01 (2), Stats., reads as follows:
"`Contested case' means a proceeding before an agency in which, after hearing required by law, the legal rights, duties, or privileges of any party to such proceeding are determined or directly affected by a decision or order in such proceeding and in which the assertion by one party of any such right, duty, or privilege is denied or controverted by another party to such proceeding."
In Park Bldg. Corp. v. Industrial Comm. 9 Wis. (2d) 78, 92, 100 N. W. (2d) 571, we cited the above subsection and quoted with approval from an article on the Wisconsin Administrative Procedure Act by Ralph M. Hoyt which appeared in 1944 Wisconsin Law Review, 214, 220, as follows:
"It should be noted that these rules are made applicable only to `contested cases,' which are defined in the opening section of the act as proceedings in which `the legal rights, duties, or privileges of specific parties are required by law to be determined by decisions or orders addressed to them or disposing of their interests after opportunity for hearing.' Thus the rules apply only to those situations in which the law already requires an opportunity for hearing to be offered. The procedure act does not itself specify or determine what types of cases require a hearing; that is a matter which is left for specification in the particular regulatory act which the agency administers."
We thereby adopted that language and that interpretation of the scope of ch. 227, Stats., as our own.
The issue in these cases is whether or not the city of Milwaukee is an aggrieved party in contested cases so that it is entitled to a judicial review of the determinations and orders of the Public Service Commission.
Milwaukee contends that it is an aggrieved party in contested cases under the provisions of ch. 227, Stats., because *117 it has an indeterminate permit as a water public utility in each of the two villages and in the city of Glendale. Its argument is based on the fact that it operates a municipal water-utility system within Milwaukee county and that its operations are governed by applicable provisions of the Wisconsin statutes and that it is subject to regulation by the commission.
It is established that Milwaukee as a utility has for many years sold water to the villages of Whitefish Bay and Fox Point at wholesale, in compliance with the rules and regulations, service standards, and rates prescribed by the commission. Fox Point and Whitefish Bay have their own distribution systems and they distribute the water so purchased at wholesale to the inhabitants of their respective villages by means thereof. Milwaukee contends that under sec. 66.069 (2) (a), Stats., a city owning a water plant may serve persons or places outside of its corporate limits, including municipalities, and may interconnect with another municipality, whether contiguous or not. It is argued that since Milwaukee performs public-utility functions by supplying water, it follows that Milwaukee must be deemed to have a franchise to furnish said water to the other municipalities.
The commission determined throughout that Milwaukee had no grant, franchise, or indeterminate permit to operate as a public utility in Whitefish Bay, Fox Point, or Glendale. Milwaukee cites as authority for its position the determination of the commission in City of Wauwatosa as a Water Public Utility v. City of Milwaukee as a Water Public Utility, 43 P. S. C. Rep. 124: In that case the city of Wauwatosa, as the petitioner, alleged that the city of Milwaukee was operating under an indeterminate permit granted by the state of Wisconsin. The commission made no such finding in that case, but held that Milwaukee had furnished water to other adjacent municipal water public utilities for resale and its actions constituted a voluntary *118 holding out by it to furnish water for resale to other water public utilities operated by municipalities in Milwaukee county contiguous to it, and thereby assumed an obligation as a water public utility to provide such a service to any municipal water utility so located. That is far from saying that Milwaukee had an indeterminate permit in the other municipalities to which it furnished water for resale.
Milwaukee calls attention to the fact that the commission permits it to make a demand charge for fire protection to the villages and therefore it has a franchise with respect to this type of service as well as with reference to its wholesale service. In support thereof it cites Wisconsin Power & Light Co. v. Beloit, 215 Wis. 439, 254 N.W. 119, and Calumet Service Co. v. Chilton, 148 Wis. 334, 135 N.W. 131. The cases are readily distinguishable and do not control or apply to the cases before us. The fact that Milwaukee is permitted to charge a rate because of a possible demand for water for fire protection cannot result in an indeterminate permit for that limited service.
Existence as a public utility does not result in the grant of an indeterminate permit. Muscoda Bridge Co. v. Muscoda, 193 Wis. 457, 459, 214 N.W. 435; South Shore Utility Co. v. Railroad Comm. 207 Wis. 95, 106, 240 N.W. 784.
Sec. 196.01 (5), Stats., provides that an indeterminate permit is based on a grant by the state, directly or indirectly. An indirect grant must of necessity be a grant or franchise by a municipality. Milwaukee can show no such grant.
An area of Glendale east of North Port Washington road and south of the Milwaukee river has been served with water for some time by Milwaukee. The application of the city of Glendale for authority to transact business as a water public utility and to construct facilities did not include that area of the city. Milwaukee makes a claim to having an indeterminate *119 permit in the city of Glendale because of the provision of sec. 66.061 (1) (d), Stats., which reads as follows:
"Whenever any city or village at the time of its incorporation included within its corporate limits territory in which a public utility, prior to such incorporation, had been lawfully engaged in rendering public-utility service, such public utility shall be deemed to possess a franchise to operate in such city or village to the same extent as though such franchise had been formally granted by ordinance duly adopted by the governing body of such city or village. This paragraph shall not apply to any public utility organized under any provisions of ch. 66."
That subsection was added to the statutes by ch. 374, Laws of 1953. The file in the office of the legislative reference library indicates that all but the last sentence of said subsection was drafted pursuant to instructions by the legislative counsel of a large public utility engaged in the sale of electric energy. The last sentence thereof was offered as an amendment by the senate committee on state and local government but drafted by instructions of the same legislative counsel.
Milwaukee contends that since it was serving as a water public utility in a portion of the town prior to its incorporation as a city, it now has an indeterminate permit to operate as such anywhere within the said city. Milwaukee contends that it does not come under the last sentence of said subsection because it was organized under the provisions of ch. 475, Laws of 1871. Milwaukee is attempting to give the word "organized" its restricted meaning of "incorporating" or "first organization." It was clearly the intention of the legislature to exempt municipal utilities from the operation of the subsection. To give it that effect a broad meaning must be given to the word "organized." The Milwaukee water utility is expressly subject to some provisions of ch. 66, Stats., as, for example, secs. 66.06 and 66.071, Stats. *120 Milwaukee itself has referred to sec. 66.069 (2) (a) as being applicable and, although the original water system may have been constructed pursuant to the 1871 act, by later enactments it has become subject to the provisions of ch. 66, Stats., relating to water public utilities. Therefore it can claim nothing by virtue of the quoted subsection, as it is subject to provisions of ch. 66, Stats.
In Milwaukee's application for authority to extend its water service in the city of Glendale under certain terms and conditions, the terms and conditions outlined, among others, were that Glendale should finance and provide a water-distribution system within its incorporated limits, complete with hydrants and other accessories, all acceptable to and without cost to the Milwaukee waterworks; that the city of Glendale should pay to the Milwaukee waterworks the lump sum of delinquent water and meter-repair bills of customers of the city; and there were other burdensome conditions without any revenue being available to Glendale from the operation of the water utility for the payment of the cost thereof. The entire cost would have to be paid for by direct tax upon the property of the city and would have to be financed by general obligation bonds as there would be no revenues from which to service revenue bonds.
The conditions were entirely unacceptable to Glendale and were promptly rejected by the city council thereof. A permit based upon said application without the consent and co-operation of Glendale would be meaningless and unenforceable. The commission properly determined that the city of Glendale had the right to make the initial determination subject to any needed commission approvals or requirements so as to obtain water-utility service for its inhabitants in the manner which it deemed best, and cited Wisconsin Hydro Electric Co. v. Public Service Comm. 234 Wis. 627, 635, 291 N.W. 784.
*121 Milwaukee further contends that it is an aggrieved party because of the financial effect the orders and determinations will have upon it. It points to a program of expansion of the facilities of its water department, some of which it claims was carried out at the direction of the commission and that it has plans for future expansion, all with a view to caring for the needs of the adjoining suburbs; that it has sold mortgage-revenue bonds in the sum of $20,000,000 and anticipates that it will borrow an additional $19,000,000 by the same means in the near future; that the loss of revenue from the sale of water to Fox Point and Whitefish Bay will reduce its revenue and make a portion of its plant and distribution system functionless.
The same argument was made in the Wisconsin Hydro Electric Co. Case, supra. In that case this court stated that the electric company no doubt had a remote financial stake in the controversy but that did not make it an aggrieved party in that proceeding.
The commission determined that the water used by Fox Point and Whitefish Bay is such a small percentage of the total water supplied by Milwaukee that the normal increase in consumption of water within the area would soon require the water now supplied to those villages. In addition, the commission held that in planning its expansion program the engineers were informed by the city of Milwaukee that Fox Point and Whitefish Bay could cease to purchase water, and that was considered in drafting the plans for expansion. Thus, any effect upon Milwaukee's finances and its plans for expansion of its water facilities will be temporary.
In the Wisconsin Hydro Electric Co. Case, supra, plaintiff, a public utility, had sold electric energy at wholesale to the city of Cumberland for resale by means of the city's distribution system, also a public utility. To provide the energy the plaintiff invested large sums of money in equipment. *122 Upon expiration of the contract plaintiff and the city could not agree upon a new contract and the city made application to the commission for authority to install its own generating plant, which was granted. In an action brought to review the commission order this court spoke with reference to the status of Wisconsin Hydro Electric to maintain the action as follows (p. 634):
"It is considered that the trial court correctly held that the Wisconsin Hydro Electric Company had no interest which entitled it to maintain this action. While the statute provides that any public utility may bring an action, that must be understood to mean a public utility with an interest in the controversy. The Electric Company has no such interest. No doubt it has a remote financial stake in the controversy. If the city of Cumberland can be prevented from generating its own electrical energy it will be obliged to make a contract with the Electric Company, but the possibility or even the probability that the Electric Company would procure such a contract does not give it a legal interest in this controversy."
A somewhat-similar situation was presented in the case of Central Wisconsin Power Co. v. Wisconsin T., L., H. & P. Co. 190 Wis. 557, 209 N.W. 755. There the city of Clintonville operated a municipal public electric utility. Plaintiff sold electric energy to the city for resale under a contract. In that case the city was permitted to cease purchasing its electric energy from the plaintiff and to purchase it from the defendant, another public utility. It was held that plaintiff had no indeterminate permit to serve Clintonville or in Clintonville.
Milwaukee also contends that, by granting authority to the two villages and Glendale to construct a supply facility, the commission is authorizing the formation of a competing public utility. The contract between the participating municipalities shows that no separate entity is created, but the three *123 communities will own the water-supply facilities in common. There is nothing in the commission orders, findings, or determinations that permits competition with the Milwaukee utility.
Milwaukee argues that each of the applications resulted in a contested case before the commission. It received a notice in each, appeared in each, and introduced evidence and examined witnesses in each. The statutory definition of "contested case" is quoted above. Our attention has not been called to any provision of the statutes or rules of the commission that required a hearing on any of the applications. In connection with its argument that a competing utility is being created, Milwaukee cites sec. 196.50, Stats., dealing with competing utilities wherein a hearing is required. If Milwaukee had indeterminate permits in the three municipalities and if the orders before us permitted competition, a hearing would be required.
The right of review is entirely statutory and orders of administrative agencies are not reviewable unless made so by statute. Milwaukee has not established that it is a person aggrieved nor that the determinations of the commission it seeks to review directly affect its legal rights, duties, or privileges. Since Milwaukee is not a person aggrieved in a contested case, the trial court was correct in dismissing its petitions for review, and each of them.
By the Court.In Case No. 24 the order and judgment are affirmed; in Case No. 25 the order and judgment are affirmed; in Case No. 26 the order and judgment are affirmed; in Case No. 27 the order and judgment are affirmed.
HALLOWS, J., took no part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600723/ | 20 Mich. App. 220 (1969)
173 N.W.2d 802
NULL
v.
BIOGCO, INC.
Docket Nos. 6,649, 6,650.
Michigan Court of Appeals.
Decided November 25, 1969.
*221 Dimmers, Dimmers & Loren, for plaintiffs.
Pence, Becker & Norris, for Biogco, Inc., Howard W. Sharpley and Earl Sehi.
Prettie, Parker & Hayes, for Richard K. Eckert.
Before: J.H. GILLIS, P.J., and McGREGOR and V.J. BRENNAN, JJ.
J.H. GILLIS, P.J.
Defendant corporation was organized under the laws of Michigan in 1962, with its annual reports due each May thereafter as required by MCLA § 450.82 (Stat Ann 1965 Cum Supp § 21.82). The 1963 annual report was duly filed, but the reports for 1964 and 1965 were not filed until February, 1966.
In April, 1963, the corporation purchased certain oil well supplies from plaintiffs. Payment was made in part by two promissory notes. One of the notes was negotiated to the First National Bank of Quincy-North Adams, while the other was retained by plaintiffs. Both notes were renewed from time to time, the face values being reduced accordingly to reflect partial payment. The final renewals were dated May 7, 1965 and August 1, 1965, respectively.
On July 12, 1966, plaintiffs filed complaints to recover on the two notes. Since the corporation was, at the time, in default for failure to file its 1964 and 1965 annual reports, the individual defendants were joined in their capacity as officers of the corporation pursuant to MCLA § 450.87 (Stat Ann 1963 Rev § 21.87), which provides:
*222 "(1) If any corporation neglects or refuses to make and file the reports and/or pay any fees required by this act within the time herein specified, and shall continue in default for 10 days thereafter, unless the secretary of state shall for good cause shown extend the time for the filing of such report or the payment of such fee, as the case may be, as provided in section 91 of this act, and (2) if such corporation shall continue in default for 10 days after the expiration of such extension, its corporate powers shall be suspended thereafter, until it shall file such report, and it shall not maintain any action or suit in any court of this state upon any contract entered into during the time of such default; but nothing herein contained shall prevent the enforcement of such contract against the corporation by the other party thereto, and during the period of such suspension such corporation may exercise the power of disposing of and conveying its property and may settle and close its business. Any officer or officers of such corporation so in default who has neglected or refused to join in making of such report and/or pay such fee shall be liable for all debts of such corporation contracted during the period of such neglect or refusal." (Emphasis supplied.)
The pivotal question presented is whether the renewal, during a period of default in filing the reports, of a promissory note given before default constitutes the contracting of a debt for which the officers of the defaulting corporation may be individually liable under the statute.
The trial court found in the affirmative and further found that the individual defendants were all guilty of neglect in failing to file the reports. From the ensuing judgment against all defendants, the individual defendants appeal.
Plaintiffs point out that the renewal notes differed from the original notes in amount, terms and obligations of the parties. They conclude therefrom that *223 the notes sued upon were supported by new and different consideration and were not, therefore, mere extensions of the original indebtedness. Consequently, they contend that the renewal of the notes was the contracting of a debt as contemplated by the statute.
While the question appears to be raised for the first time in Michigan, none of the authority to which we are directed supports the position taken by plaintiffs and adopted by the trial court. To the contrary, the general rule is as follows:
"A debt exists, within the statute as to reports, at the time of the giving of a promissory note, and the liability of the directors or officers is determined by the fact as to default existing at the time. If a note is given to renew the former note the existence of the debt is not determined as of the date of the renewal note." 5 Fletcher, Cyclopedia Corporations, (perm ed, 1967 Rev) § 2287, p 1002. (Emphasis supplied.)
The renewal of the notes in this case was routine. In the absence of a contrary intention clearly expressed, such renewal during a period of default of a preexisting corporate obligation is not the contracting of a debt as contemplated in the statute. Schwab v. Schlumberger Well Surveying Corporation (1946), 145 Tex 379 (198 S.W.2d 79, 168 A.L.R. 1074); Griffin v. Long (1910), 96 Ark 268 (131 S.W. 672. See annotation, Renewal of obligation as within statute making corporate officers liable for debts of corporation created or incurred after official delinquencies, 168 A.L.R. 1079.
"The contracting of a debt means the creation or bringing into existence of a debt which theretofore had no actual existence." Simmons Hardware Co. v. Rhodes (CA8, 1925), 7 F2d 352, 355.
*224 Since the individual defendants are not personally liable under the statute, we need not consider defendant Eckert's allegation of nonliability based upon his efforts to secure the filing of the delinquent reports.
Reversed and remanded to the trial court for the entry of a judgment for plaintiffs against defendant corporation only.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600395/ | 120 F.Supp. 209 (1954)
POIRIER & McLANE CORP.
v.
UNITED STATES.
No. 49623.
United States Court of Claims.
April 6, 1954.
David Cobb, Washington, D. C., I. S. Weissbrodt and Abe W. Weissbrodt, Washington, D. C., on the brief, for plaintiff.
*210 Walter Kiechel, Jr., Washington, D. C., Warren E. Burger, Asst. Atty. Gen., for defendant.
Before JONES, Chief Judge, and LITTLETON, WHITAKER, and MADDEN, Judges.
LITTLETON, Judge.
In this action plaintiff seeks to recover $19,901.08, representing increased labor costs incurred by plaintiff, a New York corporation, in the performance of a contract with the defendant for the construction of a flight hangar in Buffalo, New York. The increased labor costs resulted from the payment by plaintiff of a higher wage rate to unskilled laborers working on the project than that contained in the contract specifications, as fixed and determined by the Secretary of Labor under the Davis-Bacon Act, 40 U.S.C.A. § 276a et seq.
The case is presently before the court on motions by plaintiff and defendant for summary judgment. From the allegations of the petition, several exhibits, and an agreed statement of facts not in dispute, it appears that defendant, on July 1, 1943, issued an invitation for bids for the construction of a flight hangar. Plaintiff submitted the low bid, and on July 14, 1943, plaintiff and defendant acting through the United States Engineer Office entered into a contract whereby plaintiff agreed to furnish all labor, plant and material and perform all work required for the construction of a flight hangar at Buffalo Municipal Airport, Buffalo, New York, for an estimated consideration of $1,466,402. This figure was based in part upon lump sum prices and in part upon unit prices. Work was commenced within three days after July 15, 1943, and was to be completed not later than November 12, 1943. The contract work was completed by plaintiff and accepted by defendant within the contract performance period as subsequently extended.
As required by the Davis-Bacon Act,[1] the contract specifications which accompanied the bid and became a part of the contract contained a schedule of the minimum wages to be paid various classes of laborers and mechanics, based on wages determined by the Secretary of Labor to be prevailing on projects of a character similar in nature to the contract work in the contract locality. The minimum wage rate to be paid unskilled laborers on the contract work was fixed at 85 cents per hour. This was the minimum and also the maximum rate. Prior to submitting its bid, plaintiff made careful investigation for the purpose of determining the availability of labor, and the wages it would have to pay to obtain the required labor. Plaintiff found that the war wage stabilization program had been established in the Buffalo area, and that under this program the United States Employment Service (hereinafter referred to as USES) was responsible for directing and regulating the hiring of workers in the Buffalo area. Plaintiff also found that the USES was predicting, in June and July, that an abundant supply of labor would be available in the Buffalo area during August, September, October, and November.[2] Plaintiff also consulted with labor unions and other sources in the Buffalo area, and found and determined that the unions expected to be able to provide all necessary unskilled labor at the specified wage rate of 85 cents per hour. In reliance upon its investigations and upon the decision of the Secretary of Labor and the wage provisions in the specifications, plaintiff made no allowance in the computation of its bid for any increase in wage rates in the performance of the contract.
Article 17 of the contract directed the contractor to pay to all mechanics and laborers employed directly upon the site of the work wages computed at "rates not less or more than those stated in the *211 specifications (subject to Executive Order No. 9250, 50 U.S.C.A.Appendix, § 901 note, and the General Orders and Regulations issued thereunder) regardless of any contractual relationship which may be alleged to exist between the contractor * * * and such laborers and mechanics * * *."
Section 1-27 of the specifications provided in part:
"(a) The minimum wages to be paid laborers and mechanics for work being performed for the United States Government as determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the pertinent locality, are as follows:
"Title: Department of Labor Determination Dated September 15, 1942, as modified March 25, 1943, for Erie County, N. Y.
"Classification of Laborers and Mechanics:
* * * * * *
Minimum
rates of wages
per hour
Laborers, unskilled.....$0.85
* * * * * *
"(b) * * * The wages specified in this schedule shall be the maximum wages to be paid, subject, however, to Executive order No. 9250 and the General Orders and Regulations issued thereunder.
"(c) The contractor will be expected to make his own investigation and determine for himself both the availability of labor possessing the necessary skill and the rates of wages necessary to obtain the required quantity and quality thereof. Whenever the contractor, in pursuance of the foregoing, determines that he is unable to recruit the necessary labor with the necessary skills at the predetermined rates applicable to his contract, he will make request direct to the Wage Adjustment Board, for a wage adjustment, which shall contain a statement that the adjustment, if authorized, will be absorbed by the contractor and will not constitute a basis for a claim against the Government. * * *"
The contract also contained the standard Article 3, relating to changes in the drawings and specifications, and providing for an equitable adjustment for increase in price or time for performance.
The contract work was of importance to the war effort, and there was urgent need that it be completed within the contract performance period. Work was commenced within three days after July 15, 1943. In August of 1943, shortly after plaintiff had begun performance, it found that unskilled labor was being offered and paid $1.00 per hour or more on other construction projects in the Buffalo area, and that in order to procure a sufficient supply of unskilled laborers it would be necessary for plaintiff to pay a wage rate of $1.00 per hour.
Plaintiff thereupon requested that defendant change the 85 cents per hour wage rate contract specification to $1.00 per hour, retroactively to the date of execution of the contract, and to increase the contract price accordingly. Defendant was also notified that plaintiff would not make a request for a wage adjustment to the Wage Adjustment Board under paragraph 1-27(c) of the contract specifications, for the reasons that plaintiff believed the 85 cents per hour specification to be in error; that this error constituted a basis for a claim against the defendant for reimbursement, and that plaintiff accordingly would not agree that an adjustment, if authorized by the Wage Adjustment Board, would "be absorbed by the contractor." Plaintiff made no request to the Wage Adjustment Board, and no order was issued by the Board authorizing a wage adjustment under the provisions of paragraph 1-27(c) of the specifications.
In September 1943, the Department of Labor reviewed data bearing upon wage rates prevailing for construction *212 labor in the Buffalo area, and in a decision by the Secretary of Labor dated October 1, 1943, the Secretary's determination of September 15, 1942, as modified, was changed, inter alia, by increasing the wage rate for unskilled laborers to $1.00 per hour, retroactively. On October 28, 1943, a letter was issued by the Secretary of Labor stating in part as follows:
"Due to an inadvertence, the rates for various classifications which should have been modified on June 15, 1943, were not so modified. The rates for these classifications should have been specified on June 15, 1943, as follows:
* * * * * *
Per hour
Laborers, unskilled ......... $1.00
* * * *
It has been stipulated that payment by plaintiff of a wage rate of $1.00 per hour for all unskilled laborers under the contract was made with the knowledge of and without objection by the contracting officer, and that plaintiff incurred an increased labor cost of $19,901.08 by reason of payment of the $1.00 per hour wage rate in lieu of the original wage specification of 85 cents per hour. In fact the contracting officer directed that such increased rate be paid.
Administrative proceedings pursued by plaintiff in an attempt to secure reimbursement for its increased labor costs culminated in the denial of plaintiff's claim, and this suit was thereafter initiated. Everyone concerned was fearful that they did not have authority to allow the increase and the matter was finally sent to the General Accounting Office.
Plaintiff contends that the erroneous 85 cents per hour wage rate, contained in the original decision of the Secretary of Labor and the contract specifications, constituted a misrepresentation of a material fact by defendant, relied upon by plaintiff to its detriment. Alternatively, plaintiff urges that the "inadvertence" letter of October 28, 1943, amounted in effect to a change in the specifications, for which defendant is liable to plaintiff in the amount of the resulting increase in labor costs to plaintiff. It appears to us that there was a mutual mistake of fact.
Defendant takes the position (1) that the redetermination of wage rates by the Secretary of Labor did not operate to change the contract specifications; (2) that plaintiff is precluded from recovery for failure to follow the procedure for wage adjustment provided in the contract; (3) that there was no actionable misrepresentation by defendant as to the prevailing wage rate for unskilled laborers; and (4) that plaintiff may not claim a mutual mistake of fact, because its own investigation should have disclosed that the $1.00 per hour wage rate was the actual prevailing rate. None of defendant's contentions is supported by the record.
We will discuss first defendant's second contention, which is, in essence, that plaintiff has failed to pursue the administrative remedy provided by the contract. Paragraph 1-27(c) of the specifications, upon which this argument is premised, reads in part as follows:
"The contractor will be expected to make his own investigation and determine for himself both the availability of labor possessing the necessary skill and the rates of wages necessary to obtain the required quantity and quality thereof. Whenever the contractor, in pursuance of the foregoing, determines that he is unable to recruit the necessary labor with the necessary skills at the predetermined rates applicable to his contract, he will make request direct to the Wage Adjustment Board, for a wage adjustment, which shall contain a statement that the wage adjustment, if authorized, will be absorbed by the contractor and will not constitute a basis for a claim against the Government * * *."
Defendant asserts that plaintiff was contractually obligated to make request to the Wage Adjustment Board for a *213 wage adjustment. If this be true, an issue we do not decide, plaintiff was also contractually obligated to include in the request a statement that the wage adjustment, if authorized, would be absorbed by the contractor and would not constitute a basis for a claim against the Government. The plaintiff refused to do this, and, we think, rightfully in the circumstances.
When a contract provides a method for obtaining additional compensation for increased wages, and the contractor fails to pursue the required contractual remedy, it is precluded from seeking relief in this court, Lustbader Construction Co. v. United States, 62 Ct. Cl. 549, 562-563. The rule is inapplicable to this case, however. The remedial provisions of the contract which defendant would require plaintiff to follow, at the risk of being precluded from later litigation to recover increased labor costs seem to the court to be illusory. We hold that plaintiff is not precluded from recovery in this suit by reason of its failure to make request to the Wage Adjustment Board for a wage adjustment.
The next question is whether or not plaintiff has established its right to recover the increased cost.
In conformity with the Davis-Bacon Act, supra, and Executive Order No. 9250,[3] the advertised contract specifications advised prospective bidders that the successful bidder would be required to pay neither less nor more than the wage rates predetermined by the Secretary of Labor, to be the prevailing wage rates on projects of a character similar in nature to the contract work in the pertinent locality, unless, of course, the Secretary changed the rate. Prospective bidders were further advised that the prevailing wage rate for unskilled laborers, as determined by the Secretary of Labor, was 85 cents per hour. There is no dispute as to this fact.
Before submitting its bid plaintiff investigated the labor situation in the Buffalo area, and determined to its satisfaction that there would be during the contract performance period an abundant supply of unskilled labor available in that area, and that the labor unions expected to be able to furnish the necessary unskilled labor at the 85 cents per hour wage rate. Plaintiff's investigation was reasonable and adequate. Plaintiff consequently made no allowance in preparing its bid for any increase in wage rates. Plaintiff was the low bidder, and the contract was executed on July 14, 1943.
In August of 1943, plaintiff found that unskilled labor was being offered and paid $1.00 per hour or more on other construction projects in the Buffalo area, with approval of defendant, and apparently, although the record is not entirely clear on this point, plaintiff then began to pay unskilled labor working on the instant project a wage rate of $1.00 per hour, in order to keep the work moving, and this was done with the knowledge and approval of the defendant.
On October 1, 1943, the Secretary of Labor modified the wage predetermination which he had made and which was in effect at the time the contract was awarded and executed, by increasing the wage rate for unskilled laborers to $1.00 per hour. On October 28, 1943, the Department of Labor determined that, as it stated the matter, "due to an inadvertence" the wage rate for unskilled laborers which should have been modified on June 15, 1943, had not been so modified, and that the wage rate of $1.00 per hour should have been specified on June 15, 1943. Such rate was therefore increased retroactively to June 15, 1943.
Plaintiff asserts that its right to recover depends upon the meaning and effect to be given the "inadvertence" letter. We are of the opinion that the decision of October 28, 1943, referred to as "inadvertence letter" alters the result, and that plaintiff is entitled to recover the increased labor costs incurred by it by reason of its payment of the higher *214 wage rate instead of the wage rate stated in the contract specifications.
The defendant's statement in the specifications as to the prevailing wage rate for unskilled laborers was a statement of an existing fact, duly determined and upon which plaintiff was entitled to rely. Walsh Brothers v. United States, 69 F.Supp. 125, 107 Ct.Cl. 627, 642. The "inadvertence letter" of October 28, 1943, clearly amounts to a determination or finding by the Department of Labor that the prevailing wage rate for unskilled laborers at all times here pertinent, from June 15, 1943, at least, was not 85 cents per hour, as stated in the Secretary's original determination and the specifications, but $1.00 per hour.
There consequently was a misrepresentation by defendant, perhaps an innocent one, as to the prevailing wage rate for unskilled laborers, but one upon which plaintiff relied. Plaintiff, although it investigated the labor situation, did not discover the erroneousness of the defendant's statement, and relied upon the representation contained in the specifications. It is therefore entitled to recover the increased labor costs resulting from defendant's misrepresentation. Albert and Harrison, Inc. v. United States, 68 F.Supp. 732, 107 Ct.Cl. 292.
We have carefully considered defendant's argument that had plaintiff's investigation been an adequate one, it would have disclosed that all contractors in the Buffalo area had been paying $1.00 per hour to unskilled laborers for more than a year prior to July 1, 1943, the date of issuance of invitations for bids on the instant contract. We think defendant's contention is without merit, and not supported by the record. This case is to be distinguished from the case of United States v. Binghamton Const. Co., Inc., 347 U.S. 171, 74 S.Ct. 438, in that the contractor did make an adequate and thorough investigation, and the provisions of the contract fixed not only the minimum wages but also the maximum wages which the contractor could pay at the time the contract was made, on the basis of the decision of the Secretary of Labor. The change in that decision, and therefore, in the contract, brought about the increased costs here involved, and the contracting officer required plaintiff to pay the new increased wage rates.
The stipulated facts relative to plaintiff's investigation have heretofore been stated. All else aside, there is nothing in the record before the court which would tend to indicate in any manner that plaintiff's investigation was inadequate, nor that it was made without reasonable care and diligence. It is true that the Secretary of Labor's subsequent inadvertence letter indicated that the prevailing rate for unskilled labor at the time plaintiff conducted its investigation was $1.00 per hour, not 85 cents per hour, as plaintiff reasonably believed. This fact in itself, however, furnishes no basis for sustaining defendant's position. The Secretary of Labor simply increased the wage rate retroactively and the contracting officer required plaintiff to pay the rate.
In any event, however, the parties contracted in the circumstances of this case under a mutual mistake of fact. Because of their mutual ignorance of the actual prevailing wage rate for unskilled laborers, as subsequently determined by the Secretary of Labor, the contract as executed did not reflect the true intent of the parties to the transaction. See Walsh v. United States, 102 F.Supp. 589, 121 Ct.Cl. 546. At the time the contract was executed, both plaintiff and defendant were unaware of the actual prevailing rate, but both parties intended, and indeed the Davis-Bacon Act required, in view of the Secretary's decision, that the contract specifications should contain this rate. This court may, and it is its duty, in the exercise of its equitable jurisdiction, and for the purpose of awarding or refusing to award a money judgment against the United States, to reform the contract so as to reflect the true understanding and intent of the parties to it. Sutcliffe Storage & Warehouse Co., Inc., v. United States, 112 F.Supp. 590, 125 Ct.Cl. 297, and cases there cited. We do so here by *215 correcting the erroneous wage rate contained in the specifications, and basing our judgment on the contract as reformed.
We hold, for the reasons heretofore indicated, that plaintiff is entitled to recover its increased labor costs, in the amount of $19,901.08, resulting from payment by it of a wage rate of $1.00 per hour instead of the wage rate contained in the contract specifications. The conclusion we reach makes it unnecessary to determine whether or not the "inadvertence letter" of October 28, 1943, amounted to a change in the contract specifications.
Plaintiff's motion for summary judgment is granted. Defendant's motion is denied, and judgment is entered in favor of plaintiff for $19,901.08. It is so ordered.
JONES, Chief Judge, and MADDEN and WHITAKER, Judges, concur.
NOTES
[1] Act of August 30, 1935, 49 Stat. 1011, as amended by the Act of June 15, 1940, 54 Stat. 399, 40 U.S.C.A. §§ 276a and 276a-1.
[2] The original contract completion date was specified as not later than November 12, 1943.
[3] 7 F.R. 7871. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600659/ | 257 F.Supp. 345 (1966)
George G. PAPPAS and James C. Jangarathis, Arthur Einhorn and Elizabeth I. Einhorn, Mark Kirshenbaum, The Niagara Wire Weaving Company, Limited, Perunt Co., Edmund Pescia and Emma Pescia, Herman Rubinstein, William Sachs, H. Terry Snowday, Jack Tager, on behalf of themselves and all other stockholders of Hydromatics, Inc., similarly situated, Plaintiffs,
v.
Bernard L. MOSS, Harrison J. Britton, Leo N. Sokol, Philip B. Brooks, Philip B. Brooks, as Trustee of Hydromatics Employees Profit Sharing and Retirement Trust, Edward Nathan, and Hydromatics, Inc., Defendants.
Civ. A. No. 96-62.
United States District Court D. New Jersey.
May 6, 1966.
As Amended August 15, 1966.
*346 *347 *348 Bourne, Schmid, Burke & Noll, Summit, N. J., for plaintiffs, by Edward T. Kenyon, Summit, N. J., Burke & Burke, New York City, of counsel, by George I. Harris, New York City.
Clapp & Eisenberg, Newark, N. J., for individual defendants, by Jerome C. Eisenberg, Newark, N. J.
McGlynn, Stein & McGlynn, Newark, N. J., for defendant, Hydromatics, Inc., by Roger H. McGlynn, Newark, N. J., Edward Nathan, Gen. Counsel, New York City.
WORTENDYKE, District Judge:
This action was initially instituted by certain minority stockholders against a New Jersey corporation (Hydromatics), and three of its five officers and directors. Defendants Edward Nathan, and Philip Brooks as Trustee of the Employees' Profit Sharing and Retirement Trust, were joined in the amended and supplemental complaint. When the action was commenced jurisdiction was predicated upon diversity of citizenship; but subsequent proceedings therein destroyed the diversity but invoked jurisdiction under a federal statute. Jurisdiction of the original single count of the complaint has, despite the destruction of diversity, been retained as pendent to the federal statute jurisdiction. The present defendants are the corporate officers and all of the directors. There remains presently as sole plaintiff a Canadian corporation holding 1,700 shares of $1.00 par common stock of the corporation, out of a total of 352,534 shares issued and outstanding.
The plaintiff sues derivatively in the right of the corporation, and charges the defendant directors with breach of their common law obligation to the corporation and with violation of S.E.C. Rule X-10B-5 adopted pursuant to § 10(b) of the Securities Exchange Act of 1934 as amended. Recovery is also sought of short swing profits, under § 16(b) of the Act from defendants Sokol, Moss and Britton.
The causes of action alleged are predicated upon the unanimous action of the corporation's board of directors in adopting *349 a resolution on December 21, 1961 authorizing the issuance of 64,534 shares of the authorized but theretofore unissued and unregistered shares of the common stock, at a price of $6.00 per share, to themselves and other purchasers under agreements to hold the shares for investment purposes only, but providing that the corporation would cause the shares to be registered within eighteen months following the date of issue.
At the time of the adoption of the resolution there were issued and outstanding 318,000 shares which had been registered and were traded on the American Stock Exchange since 1960. The original issue of Hydromatics' stock to the public was at a price of $10.00 per share.
During the period from January 1, 1961 to January 16, 1962, the price of the stock of the corporation being traded on the Exchange ranged between a low of 10 3/8 and a high of 24 7/8 .
The corporation was engaged in the business of manufacturing ball valves. Its principal market had been in the military field but during the year 1960 the corporation developed a new line of ball valves for the civilian market, for the entry into which management had estimated that additional capital of $2,000,000 would be required.
During the fiscal year ended August 31, 1961 the corporation had moved its plant to new leased quarters, in connection with which it underwent some extraordinary expense. Its net sales dropped from $3,621,160 in 1960 to $2,373,361 in 1961. During the 1960-1961 fiscal year, the corporation suffered a loss of approximately $215,000; it had outstanding debts consisting of a long-term unsecured bank loan of $500,000 and two 90-day renewable notes in the amount of $350,000. Pertinent provisions of the larger of these items of indebtedness are set out in footnote 3. The terms of this loan agreement further provided that in the event of the breach of any of the foregoing conditions, the lending bank might put the corporation on written notice of the default and if the default persisted for thirty days thereafter, the loan would become callable. For the fiscal year ended August 31, 1961 the corporation's pre-tax loss was $442,000 which, however, included $117,000 in engineering development costs charged against fiscal 1960-61 operations. Despite a small profit for the first quarter of fiscal 1961-62 ($16,612 after taxes), the corporation was in need of additional capital and was threatened not only with the calling or requirement of full collateralization of its long-term loan indebtedness, but had been refused delivery by an unpaid supplier, preventing the making of deliveries to a principal customer.
The resolution unanimously adopted by the directors of Hydromatics at the meeting of the board held on December 21, 1961, authorized the corporation to enter into agreements to sell a total of 100,000 common unregistered shares of stock of the company to a limited number of private investors, not in excess of 15, including some small investment companies, the stock to be acquired for investment and not for resale, and to be offered at a price per share of $4.00 below the market price (then approximately $10.00 per share), or at a price of $6.00 per share. The resolution also directed that management agree to purchase similar stock of the company at the same price, to meet the conditions imposed by the prospective private investors, in an aggregate of approximately $152,000, and that in further compliance with the requirements of the private investors the corporation agree that "on or before the expiration of eighteen months from the date of the agreement with [them] * * * the company prepare and file, at its own cost, such proceedings as may be necessary to cause any shares so issued for investment to be registered pursuant to the Federal Securities Exchange Act of 1933 as amended, [sic] to the end that said shares * * * shall be qualified for public sale and distribution." The meeting was informed that one of the directors had discussed the proposed transaction with a prospective private investor who had agreed to purchase $50,000 of *350 investment stock at $6.00 a share "upon the condition that the directors, including the president, would likewise purchase [such] investment stock, and that this investor had about three friends in New York who would also invest on a similar basis." A list of the private investors contemplated by the resolution was made up and attached to the minutes of the meeting after they had been written up at a subsequent date. Between December 21, 1961 and January 2, 1962, negotiations were had in behalf of the corporation, through certain of its officers, with various prospective private investors, and written sales agreements, and investment letters between the corporation and the respective private investors were drafted and executed. By the terms of these documents the corporation sold to the investor and the investor purchased from the corporation a specified number of shares of unregistered common stock of the corporation for a price of $6.00 per share; the investor agreed that he would hold these shares for investment and not assign or distribute the same, and the corporation agreed to cause the shares to be registered with the S.E.C. within a period of eighteen months from December 21, 1961; failing which the corporation would pay to the investor a penalty of ½ of 1% per share per month during such portion of the next succeeding eighteen months period as the shares remained unregistered.
A regular meeting of the stockholders of the corporation was noticed for and held on February 8, 1962. The notice of and proxy for that meeting advised the stockholders that the board of directors would seek stockholder approval of the action of the board in authorizing and consummating the sale of the $6.00 shares.[1] The notice also stated that the officers and directors would vote all of their shares, including the $6.00 shares which they had purchased from the corporation, in favor of ratification of the directors' action. The minutes of the meeting indicate that this purported ratification was made by a majority of 251,864 out of the 268,585 stockholders voting.
This action was instituted after the resolution of the board of directors, but prior to the stockholders' meeting and an application for a preliminary injunction to prevent the holding of the stockholders' meeting was denied by this Court's order of February 8, 1962.
Plaintiffs stated their claims at pre-trial conference as follows:
(1) Defendants caused the corporation to issue the $6. shares at less than true value, thus defrauding the corporation.
(2) Defendants falsely represented to the corporation that the private investors required that the directors participate in the purchase of the $6. shares; and that the price of $6. per share was prescribed by the private investors.
(3) Defendants falsely represented to the corporation that when the agreements for the purchase of $6. shares were entered into, the average price of Hydromatics stock traded on the American Stock Exchange was approximately $10.50 per share.
(4) Defendants falsely represented to the corporation that they were acquiring the $6. shares for investment and not for public sale, although they knew at the time that some of them were selling previously acquired registered shares on the stock exchange.
(5) Short-swing profits were made on stock of the corporation by insiders which are recoverable by the corporation under 15 U.S.C. § 78p(b).
The contentions of the defendants may be summarized as follows:
(1) Plaintiffs ratified and approved the transactions complained of and *351 thereby waived their right to criticize them.
(2) The Board of Directors had authority to accomplish the criticized transactions and acted in good faith in doing so.
(3) The certificate of incorporation validates the transactions.
(4) The officers and directors were required to participate in the purchase of the $6. shares by the private investors as a condition precedent to participation by the latter therein.
(5) The $6. shares were issued under agreements of the purchasers to hold them for investment and not for resale.
(6) This Court was ousted of diversity jurisdiction by the addition of a party defendant of nondiverse citizenship.
(7) The price of $6. per share at which the registered stock was sold was fair and equitable.
(8) S.E.C. Rule 10(b) (5) is not available to the plaintiffs because they were neither buyers nor sellers of the securities.
(9) Section 16(b) of the Securities and Exchange Act of 1934 imposes no liability upon defendants Sokol, Britton or Moss because none of them made a profit through the purchase or sale of Hydromatics stock held by him for a period of less than six months.
The aggregate of 64,534 shares of the $6. stock which were issued, some on December 28, 1961 and others on January 2, 1962, were distributed as follows:
Saul Ludwig 8,500 shares
Harry Moses 4,000 shares
Robert Berkowitz 3,300 shares
Samuel Dorsky 4,200 shares
Seymour Lichtenstein 4,200 shares
State Street Capital Corp. 7,000 shares
United Guaranty Corp. 3,000 shares
Philip B. Brooks, Trustee
of Hydromatics Employees
Profit Sharing and
Retirement Trust 5,000 shares
Bernard L. Moss 8,500 shares
Harrison J. Britton 4,167 shares
Leo N. Sokol and
Francine Sokol 1,667 shares
Edward Nathan 2,500 shares
Philip B. Brooks 8,500 shares
______
64,534 shares
Before and after the criticized transactions, the defendants Moss, Britton, Sokol and Brooks controlled the management and board of directors of the corporation through their ownership, in the aggregate, of a majority of the issued and outstanding shares of its stock and their positions as officers and directors of the corporation.[2] Besides being a director of the corporation, Brooks was also trustee of its Employees' Profit Sharing and Retirement Trust.
The proxy statement accompanying the notice of the annual meeting of stockholders held on February 8, 1962, at which *352 the issuance of the $6. shares was purportedly ratified, represented that, during the corporation's fiscal year which ended August 31, 1961, it had suffered a loss of approximately $215,000; that the company had outstanding debts, consisting of a long-term unsecured bank loan of $500,000, and a short-term line of credit in the amount of $350,000, and that, during the 1961 fiscal year, management had unsuccessfully explored several possible sources of additional capital. It was also therein stated that in September 1961 there had been unsuccessful negotiations with an investment banking firm for the private placement of a convertible debenture; but that it had become apparent to management that sufficient additional capital could not be raised through the usual investment banking channels. The stockholders were advised that the corporation was informed by its largest creditor, Empire Trust Company, on December 14, 1961, that the debtor would be required to obtain equity capital in an amount of at least $400,000 by December 29, 1961; failing which the bank would take steps to place its loan upon a fully secured basis, or would require payment thereof. It was indicated that the corporation's working capital had become less than it was required to maintain by the conditions of the loan.[3]
Six critical fact issues emerge from the evidence: (1) On what date were the criticized transactions consummated? (2) Did the private investors fix the price of $6. a share as a condition of their purchase of the stock? (3) Did these private investors impose, as a further condition for their participation in the $6. share purchase, the requirement that the officers and directors of the company, as evidence of their good faith, make investments in the stock substantially matching those of the investors? (4) Was the price at which the $6. shares were sold so low as to defraud the corporation? (5) Was the proxy statement, annexed to the notice of stockholders' meeting, false or misleading? (6) Did certain officers and directors of Hydromatics make short swing profits in its stock?
JURISDICTION
Defendants have questioned the effect of joinder in the amended and supplemental complaint of the defendant Edward Nathan, who was of common citizenship (New York) with plaintiffs, upon the diversity subject-matter jurisdiction of the Court (28 U.S.C. § 1332) which existed when the action was commenced. The jurisdictional issue is always critical at any stage of the litigation. McNutt v. General Motors Acceptance Corp., 1936, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135. The supplemental and amended complaint (filed February 13, 1963) retained the single "common law count" of the original complaint, and added thereto four other counts purporting to be based on the Securities Exchange Act of 1934; thereby seeking to confer federal question jurisdiction, 15 U.S.C. § 78aa. Plaintiffs contend that the retention of the original single cause of action in the supplemental and amended complaint invested the Court with jurisdiction thereof pendent to that afforded by the federal question jurisdiction invoked by the added counts. Defendants, however, assert that the federal question allegations are sham and insubstantial, and therefore inadequate to create or support pendent jurisdiction over the first count.
The sufficiency of jurisdiction must be determined as of the time when the action was commenced. McNello v. John B. Kelly, Inc., 3 Cir. 1960, 283 F.2d 96; Corabi v. Auto Racing, Inc., 3 Cir. 1959, 264 F.2d 784, 75 A.L.R.2d 711; Smith v. Sperling, 1957, 354 U.S. 91, 77 S.Ct. 1112, 1 L.Ed.2d 1205. There was diversity jurisdiction at that time. The *353 amended and supplemental complaint invoked federal question jurisdiction of causes of action ancillary to the reiterated original cause of action.
"Generally, in a diversity action, if jurisdictional prerequisites are satisfied when the suit is begun, subsequent events will not work an ouster of jurisdiction. [Citing cases]. This result is not attributable to any specific statute or to any language in the statutes which confer jurisdiction. It stems rather from the general notion that the sufficiency of jurisdiction should be determined once and for all at the threshold, and if found to be present then should continue until final disposition of the action." Dery v. Wyer, 2 Cir. 1959, 265 F.2d 804, 808.
I recognize jurisdiction of the amended and supplemental complaint. Having assumed jurisdiction over such of the causes of action of the amended and supplemental complaint as have survived the pretrial conference, the Court may proceed to determine whether they state claims upon which relief may be had, and, if so, whether they find support in the evidence. See Bell v. Hood, 1946, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939; Ruckle v. Roto American Corporation, 2 Cir. 1964, 339 F.2d 24.
". . . [A]n actual right . . . "An actual right to relief under some federal statute need not be established to justify adjudication of the merits of a coupled common-law claim. * * * The common-law claim must be dismissed only if the coupled federal contention is `plainly insubstantial either because obviously without merit, or `because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.'" Taussig v. Wellington Fund, Inc., 3 Cir. 1963, 313 F.2d 472, 475 and cases therein cited.
THE $6. SHARES
The Certificate of Incorporation of Hydromatics provided, inter alia, that
"[n]o contract or other transaction between this corporation and any other corporation, and no act of this corporation, shall in any way be affected or invalidated by the fact that any of the directors of this corporation are pecuniarily or otherwise interested in or are directors or officers of such other corporations, and any director individually, or any firm of which any director may be a member, may be a party to, or may be pecuniarily or otherwise interested in, any contract or transaction of this corporation; provided that the fact that he or such firm is so interested shall be disclosed or shall have been known to the Board or a majority thereof; and such director may be counted in determining the existence of a quorum at any meeting of the Board of this corporation which shall authorize any such contract or transaction, notwithstanding the fact that such director is so interested."
The 318,000 publicly held shares were listed for trading on the American Stock Exchange (New York) on November 3, 1960. Their price range on the Exchange during the period January 1, 1961 to January 16, 1962 appears in the following table:
High Low
First Quarter 22 7/8 18 1/8
Second Quarter 24 7/8 17½
Third Quarter 18 7/8 13
Fourth Quarter 14½ 10 3/8
January 1-16, 1962 15 7/8 13
*354 An average high of 19.4 and low of 14.4. As of January 23, 1962, in consequence of their purchase of the $6. shares, the following defendant officers and directors of Hydromatics had become beneficial owners of the indicated numbers of shares of its common stock:
Bernard L. Moss President and Director 133,995 shares
Harrison J. Britton Vice President and
Secretary 47,567 shares
Leo N. Sokol Comptroller and Director 1,848 shares
Philip B. Brooks Director 9,300 shares
Edward Nathan Assistant Secretary and
Director 2,701 shares
Philip B. Brooks As Trustee of Hydromatics
Employees' Profit Sharing
and Retirement Trust 5,000 shares
The corporation had initially concentrated upon the production of ball valves[4] for the military market; and by 1959 it had become the principal supplier of such valves for missiles, rockets, ground support, aircraft and submarine uses. In 1960 it developed a new line of ball valves for the civilian market. Management had estimated that it would require $2,000,000 in additional capital to enable the company to enter the new market. Accordingly, Arthur D. Little, Inc., a management consulting firm, was employed to investigate the company's actual and potential sales fields, and to project its prospects through the next five years. The Little Report, dated May 9, 1961, predicted a decline in sales during fiscal 1961, with the total dropping from $3,600,000 in 1960 to slightly less than $2,500,000 in 1961. That projection was substantially verified by actual audit of net sales in fiscal 1961, which amounted to $2,373,361. The same Report, as well as management's own estimates, predicted that the decline in military sales would end in 1961, and that thereafter the corporation would retain from 35% to 45% of the military market which it then enjoyed. Gradual increases in military sales after 1961 were projected, together with a sharp increase of sales for civilian use. The total sales estimated for fiscal 1962 was $3,600,000, and that for fiscal 1963, $5,000,000.
In 1960, in contemplation of entry into the civilian market, the company rented and took possession of a new manufacturing plant in Bloomfield, New Jersey. Prior to moving to the new location, management estimated the cost of moving and plant adaptation at $2,000,000. The corporation, however, began to lose progressively in its pursuit of civilian business, and fiscal 1961 was expected and proved to be a poor year. The year-end statement showed a pretax loss of $442,000, and a probable postincome tax loss of $215,000. This loss picture was found to reflect the following factors, namely, decline in military orders, interruption of production while moving plant to new location, cost of improvements in the new plant, expenses for engineering development, and the building of inventory for expected increased sales. The reduction in military orders had been foreseen by the officers and directors in 1960, prior to moving the plant to Bloomfield; and the earnings decline had been anticipated with accuracy prior to the release of the Little Report on May *355 9, 1961. It was hoped that such decline would be arrested in fiscal 1962. The actual fiscal 1961 pre-tax loss would have been approximately $325,000, rather than $442,000, if $117,000 in engineering development costs had not been written off against 1961 operations to avoid burdening future years with those expenses.
Management expected that fiscal 1962 would show a "turnaround" in the company's financial retrogression of 1961, and had supplied profit projections for fiscal years 1962-1965 to Granberry Marache & Co., investment bankers, in connection with an application to that firm for financing in the summer of 1961. Hydromatics projected its fiscal 1962 post-income tax profit at $100,000, without including the amount of its income tax claims filed in 1961, upon which refunds were expected during 1962. As early as September, 1961 the officers and directors expected that the first quarter of fiscal 1962 (September 1-November 30, 1961) would show a slight profit. Sales for that quarter were $938,458, providing income after taxes of $16,612. In the comparable period of fiscal 1961, sales had been $614,688, resulting in a net loss of $72,534 after taxes. The foregoing comparison was considered by management to reflect a probable continuing sales and earnings increase. The backlog of orders at the end of the first quarter of 1962 was nearly $2,000,000 compared to less than $1,000,000 at the end of the first quarter of fiscal 1961. Hydromatics' management was aware, prior to December 21, 1961, of the change disclosed by its quarterly figures for the period ending November 30, 1961. No program to raise the sum of $2,000,000 in capital estimated as requisite to enable the company to expand into the civilian ball valve market was ever developed. Moreover, the company's expected inventory increase upon entering that market was reflected in a rise from $559,000 at the close of fiscal 1960, to $1,344,000 by November 30, 1961.
On May 24, 1961 Hydromatics borrowed $500,000 from Empire Trust Company, a New York bank, on a long term note. This same note has been referred to heretofore. No part of this loan was repayable prior to August 31, 1962. The note which evidenced the loan provided that, in the event of a breach of the conditions stated in footnote 3, the bank could put Hydromatics on written notice of the default, and if the default then continued for 30 days thereafter, the loan would become callable. No such notice of default was ever given by the bank to Hydromatics, and the note continued to remain entirely unsecured. On May 24, 1961, Hydromatics borrowed an additional $350,000 from the same bank upon two short-term 90-day notes.
The lending bank received from Hydromatics, at the beginning of November, 1961, its profit and loss statement for fiscal 1961, and its balance sheet as of August 31, 1961. The long term note had not then been declared in default. However the bank's analysis of the August 31 balance sheet disclosed that there were included among the debtor's consolidated current assets items which the bank considered improper. Accordingly, on November 24, 1961, the bank informed Hydromatics' management that it desired that the long-term note be secured by appropriate collateral. Hydromatics did nothing to assure the bank that the loan would be secured; but its President (Moss) advised the bank that he desired to raise equity capital as an alternative to posting security for the long-term note. On December 7, 1961, he informed the bank that he would raise such equity capital by the sale of Hydromatics stock. On December 14, 1961, Mansfield, the Bank's Vice-President, advised Hydromatics by letter that the bank desired to have its loan secured in the event Hydromatics was unable to raise the equity capital which its President had previously stated he would undertake to obtain. At this time Hydromatics was being pressed for payment by Lebanon Steel Foundry, a major supplier, which had stopped deliveries of material to Hydromatics, and had notified Newport News Shipyard, a principal customer of Hydromatics, that it would not resume deliveries *356 until its account with Hydromatics had become current. In October and November, 1961, Hydromatics had given Lebanon two 90-day notes for sums aggregating over $100,000 of past due accounts. $75,000 was paid to Lebanon on account of this indebtedness out of the proceeds of sale of the $6. shares.
The Directors had held a special meeting on December 14, 1961, at which the president reported on discussions he had had with Frank Visceglia representing the owner of the fee of the company's new plant location. The minutes of that meeting report that a deal had been tentatively negotiated in which Mr. Visceglia's company had offered to buy a substantial number of shares of Hydromatics at $6.00 a share, payable $60,000 in cash, $60,000 in the form of a credit against prepaid rent, and $20,000 in cash upon a claim for repair to the concrete floor of the plant building. It was also understood that an adjustment of a claim for real estate taxes and the company's participation in an increase in taxes under the lease would be effected. The stock purchase was to be for investment, with the understanding that the stock would be registered under the Securities and Exchange Act of 1933 [sic] within 18 months from the date of the consummation of the deal. An option to compel the company to repurchase the stock at $10 was also discussed, and Mr. Moss explained that the price offered seemed to be in line with the company's experience in connection with its attempted private placement of notes or debentures which up to this point had been unsuccessful. Visceglia allegedly rejected the suggested purchase of Hydromatics' stock, but offered to lend the corporation $120,000 upon terms which included its issue of 17,144 warrants to purchase its stock at $6. per share. The Board directed the officers to draft a form of contract, but reminded them that other sources of obtaining funds should be expeditiously explored. The defendant directors were aware that an increase of current liabilities in relation to the decrease of current assets would amount to a violation of the working capital provisions of the note held by the Empire Trust Company.
Of the $6. shares which were purchased by the officers and directors of Hydromatics, 33,834 shares were issued by its registrar and transfer agent on December 28, 1961. On January 2, 1962, the remainder of the $6. shares, aggregating 30,700, were issued in different respective amounts, to Brooks, as Trustee of Hydromatics Profit Sharing Trust, and to the so-called private investors, Ludwig, Moses, Berkowitz, State Street Capital Corp., United Guaranty Corp., Dorsky and Lichtenstein. At $6. a share, the total return to the corporation was $387,204 for the 64,534 shares.
Each of the purchasers of the $6. shares executed a written stock purchase agreement and an investment letter. These documents were prepared by counsel for the corporation, and, as printed, bore the date of December 21, 1961. Each of these documents, however, was signed on a date subsequent to that which it bore. The purchase agreement in each case stated that Hydromatics sell to the purchaser a certain number of shares of Hydromatics' stock at the stated price of $6.00 per share. Hydromatics acknowledges receipt of the purchase price, and the purchaser acknowledges the simultaneous delivery of certificates for the shares. The agreement recited that the purchaser was requiring, as a condition of the sale, that the directors of the corporation collectively purchase 25,334 shares of the $6. stock. The agreement also provided that the corporation undertook to institute and prosecute proceedings necessary to register or qualify the $6. shares for public sale and distribution within 18 months, and to bear the cost of such registration or qualification. For its failure to register the stock before the expiration of the initial period of 18 months, an interest penalty would be imposed upon the corporation of ½ of 1% per month of the market value of the stock sold during the following 18 month period.
*357 The so called investment letter, also prepared by counsel for the corporation, and dated December 21, 1961, was signed by each of the purchasers of the $6. shares. The letter recites that the shares were acquired in a private transaction; that the purchaser had been supplied with current material concerning the business of the corporation, and its financial statement dated August 31, 1961 for the last fiscal year, and had discussed the company's affairs with officers, directors and financial advisers who were familiar therewith. The letter further represented that the purchaser was an active investor in securities of the type being acquired, was conversant with the problems of making an investment of the kind contemplated under the circumstances involved, and that such investment was not unusual for the purchaser in the light of the nature and size of his portfolio. Each purchaser therein further represented that he was acquiring the $6. stock for investment, and with no present intention of selling or distributing the same, or any part thereof, publicly. The purchaser agreed that in no event would any future disposition by him of all or any part of the stock be made in violation of the Securities Act of 1933 as amended. The letter also stated that, in making the aforesaid representation, the purchaser did not have in mind disposing of the stock after any specified period of time, such as the holding period for capital gains federal tax treatment, or at any point when the stock may have reached a specific price level, but that he had purchased the stock for investment, and with the idea and intention of holding it indefinitely for income, and ultimate appreciation resulting from the company's growth. The purchaser also represented that he knew of no personal circumstances which would make it necessary for him to sell the shares in the then foreseeable future, and that, by reason of his familiarity with the company's affairs, he was then aware of no circumstances relating thereto which would necessitate his sale of the stock in the foreseeable future. He agreed that he would not transfer the securities without advising the company of the circumstances requiring such transfer.
Early in December, 1961 Director Brooks disclosed to his friend, Ludwig, the corporation's contemplated sale of unregistered shares of its stock at $6.00 a share. Ludwig expressed interest in investing therein. Ludwig met with Moss, the president of the corporation, at its plant and was informed that, although the company had had a loss for fiscal 1961, the first quarter of fiscal 1962 showed a profit of some $16,000. Ludwig had another meeting with Moss in January, 1962; but at neither of these meetings was there any disclosure that any officer of the corporation would be required to invest in the $6. stock.
The form of the stock-purchase agreement between the corporation and the private investors was negotiated between Nathan for the corporation and Ludwig for the investors. An initial draft of the agreement, dated December 27, 1961, prepared by Nathan, contained no penalty provision for failure of Hydromatics to qualify the $6. stock for subsequent public sale or distribution within 18 months. The draft was accordingly modified to include that provision. Ludwig, however, requested that the agreement contain an undertaking by Hydromatics to repurchase the stock in the event of its failure to register it within 18 months, and Ludwig's attorney negotiated with Nathan respecting the inclusion of such a provision. That discussion was both by telephone and in person at Nathan's office in New York City on December 27, 1961. Nathan would not agree to that provision, but counter-suggested a penalty provision of interest at the rate of ½ of 1% per month commencing with the second eighteen-month period. This proved ultimately satisfactory to the negotiators, and the draft of agreement was thereupon printed. As printed, the document was not available for execution until some time after December 27, 1961, although it bore the date of December 21 (the date of the directors' meeting which had authorized the sale of the stock). The shares purchased by Ludwig were not *358 issued until December 28, and he paid for them on December 29. Throughout his negotiations with Nathan there was no suggestion by Ludwig that the officers and directors of the corporation would be required to purchase any of the $6. shares as a condition of the purchase thereof by the private investors.
After he had executed his agreement to purchase the $6. shares, Ludwig disclosed the fact of his purchase to his friends, Moses and Dorsky, who thereupon inquired of Brooks whether any more of the $6. shares were available. Upon learning that more of such shares were to be had, Moses and Dorsky arranged their own appointments for inspection of the Hydromatics' plant. Moses paid for his stock on January 2, 1962, and a certificate therefor was delivered to him on January 3. Dorsky negotiated his purchase of the stock through an attorney who, as late as January 2, 1962, sought from Nathan certain warranties and assurance that Hydromatics was not in default on its note to the Empire Trust Company. Dorsky and his attorney were referred by Nathan to Mansfield, a Vice President of Empire Trust Company, but Nathan would not agree to any of the warranties which the attorney suggested. On January 2, 1962, Dorsky delivered his check to Hydromatics for $50,400 covering his purchase of 4,200 shares and an additional 4,200 shares purchased by his co-investor, Lichtenstein. Certificates for these shares were delivered to the respective purchasers on January 3, 1962. Neither Ludwig nor any representative of Hydromatics discussed Lichtenstein's investment in the $6. shares, but his participation was pursuant to his agreement with Dorsky.
During the negotiations of Brooks and Moss with Ludwig, Moss was also negotiating with Berkowitz. Both before and after Christmas, 1961, Berkowitz visited the plant of the corporation to discuss his contemplated investment in its stock; but he never expressed any desire that the officers and directors purchase any of the stock. Berkowitz executed his stock purchase agreement and signed his investment letter on or about January 1, 1962. He paid the corporation for his 3,300 shares on January 2, and a certificate for his stock was delivered to him on January 3.
During the first week in December, 1961, and again two weeks later, Moss discussed with Perri, president of American Guaranty Corporation and Treasurer of United Guaranty Corporation the matter of investing in the $6. stock. Perri indicated to Moss that United Guaranty Corporation and State Street Capital Corporation, two small business investment corporations, and possibly another, unnamed, were interested in investing in the stock. A letter of December 20, 1961, from Perri as president of American Guaranty Corporation, to Sokol, Comptroller of Hydromatics confirmed commitment to purchase 10,000 shares of the $6. stock to be issued 7000 shares to State Street Capital Corporation and 3000 shares to United Guaranty. On December 27, 1961 State Street Capital mailed its check to Hydromatics for $42,000 for 7,000 shares of the stock, and on December 29, Hydromatics wrote State Street acknowledging receipt of the check, forwarding copies of the stock purchase agreement and investment letter to be signed and returned, and advising that the transaction would be complete upon receipt by Hydromatics of those executed documents. The executed documents were returned on January 12, 1962. On December 28, 1961 United Guaranty Corporation sent its check to Hydromatics for $18,000 for 3,000 of the $6. shares, and, on the following day, Hydromatics acknowledged receipt of the check and forwarded copies of the stock purchase agreement and investment letter to United Guaranty to be signed and returned; stating that the transaction would be complete upon receipt of the executed documents. They were mailed back January 2, 1962.
During the negotiations between Hydromatics and Ludwig, Mansfield, Vice President of Empire Trust, had several telephone conversations with Moss regarding the latter's progress in raising *359 equity capital in lieu of furnishing security for the bank's note. On December 26, 1961 Moss told Mansfield that he and his associates would purchase between $84,000 and $90,000 worth of stock at $6. per share, and that he had an offer from a small business investment corporation, which he intended to consummate within the then next succeeding two weeks to purchase $100,000 worth of the stock. Two days later, Moss informed Mansfield that he and his associates had put up between $140,000 and $150,000 as of that date, and that he had received a substantial commitment from a small business investment company. These representations were confirmed by Sokol in his letter to Mansfield of December 29, which stated that Hydromatics had been successful in securing approximately $300,000 in equity capital, and that the transaction would be closed prior to December 31. He also advised Mansfield that the company was negotiating with other investors for additional amounts. On the same date (Friday, December 29, 1961) Hydromatics notified the American Stock Exchange that its management had been exploring means for additional financing, and that a substantial amount of equity capital was in process of being raised by private placement with a group of investors.
Although the Hydromatics' directors meeting was held on December 21, 1961, the Assistant Secretary of the Corporation, the defendant Nathan, did not prepare the minutes until several weeks later. Necessarily, the names of the prospective investors and number of shares to be issued to each were not disclosed at the meeting, but were subsequently compiled in a list made up ten days or two weeks later, and then attached to the minutes of the meeting of December 21. Also the minutes do not mention the penalty clause suggested by Ludwig on December 27, 1961. Other infirmities are that although the directors knew that the company's financial picture had begun to change, no mention of that improvement is made in the minutes.
According to the minutes, the Board Meeting on December 21, 1961 was a special one attended by all five members of the board. The President and principal stockholder of the corporation reminded his co-directors that a need for additional invested capital had become apparent earlier in the year due to the increase in the extent of the inventory required in connection with the developing commercial and industrial line of valves and to take care of future growth of the company. He reported that many different avenues of securing such permanent financing had been explored, but that the obvious solution to the problem was sale of the stock of the corporation by means of an underwriting. This method was criticized as involving serious problems by reason of losses incurred by the corporation during the last preceding fiscal year which would create an adverse effect upon the price which might be secured for a stock issue. It was then considered that financing by borrowings from banks offered a temporary but not a permanent solution; such method having been employed in obtaining the loans from Empire Trust Company. The Directors were informed that efforts to obtain an underwriting for a stock issue had been made, but without success. Because the need for liquid working capital had become critical by reason of the accrual of past due bills jeopardizing the credit standing of the company, immediate steps were required to deal with the situation. As an additional factor, Moss mentioned that "under the terms of the Empire Trust Company Agreement the term loan is in default, placing the company in serious jeopardy." That default had been the subject of numerous discussions with the bank, which had insisted that the corporation raise additional working capital to the extent of increasing net worth "by $400,000 prior to December 31, 1961." The meeting was further advised that management's attempt to interest some private investors offered a dim prospect of success, but that other potential investors, acquainted with the management and prospects of the company, had indicated a willingness *360 to invest in its stock. Moss stated that "since they are going to acquire unregistered stock which they are to hold for investment, they have insisted that the price of the stock be made sufficiently attractive to warrant making the investment under the circumstances", and that their interest was conditioned upon a proviso that the cost of the stock be fixed at 4 "points below the market price at this time", and that, as an additional condition to their investment, the officers and directors should "indicate their good faith and confidence in the company and its future prospects by purchasing stock at the same price as said private investors in a substantial amount, and that the President personally invest at least $50,000 in such investment stock." Accordingly, Mr. Moss, recommended that the corporation enter into agreements to sell a total of $600,000 common unregistered stock of the company, to a limited number of private investors (not in excess of 15), including some small investment companies; the stock to be acquired for investment, and not for resale, and to be offered at a price per share of $4.00 below the market price of approximately $10, or at a price of $6.00 per share. "All subsequent offerings to the extent of the amount of stock authorized to be sold but not subscribed for at this time may be offered at a price determined by a discount of $4. from the approximate market price at the time of closing." The Board of Directors concurred in the president's recommendation "that management agree to purchase common stock of the company at the same price to meet the conditions imposed by private investors in an aggregate of approximately $152,004." The president further stated that it was necessary, in order to comply with the requirements of the contemplated private investors that the corporation agree that "on or before the expiration of 18 months from the date of the agreement with [them] * * *, the company prepare and file, at its own cost, such proceedings as may be necessary to cause any shares so issued for investment to be registered pursuant to the Federal Securities Exchange Act of 1933 [sic] as amended, to the end that said shares issued pursuant to the recommendations to be hereinafter made shall be qualified for public sale and distribution." In conclusion Moss stated that his co-director, Brooks, had informed him that he (Brooks) had discussed the matter with a private investor, who had agreed to purchase $50,000 of investment stock at $6. a share "upon the condition that the directors, including the President, would likewise purchase said investment stock and that this investor had about three friends in New York who would also invest on a similar basis."
The meeting accordingly resolved:
(1) The appropriate officers be authorized to issue up to 100,000 shares of the common stock of the corporation "to be sold for private placement to a limited number of investors, at such prices as shall be obtainable for such investment stock, to be paid for in cash and upon such additional terms and conditions as may be required." The resolution recited that the stock to be offered for sale was not registered, and, because it was to be investment stock, would be exempt from registration; but that appropriate application for listing the stock on the American Stock Exchange should be made as promptly as possible.
(2) The appropriate officers of the corporation be authorized to enter into agreements with private investors (whose names and subscriptions would be subsequently furnished) for not in excess of 100,000 shares at $6. per share, and to obtain the consent of such investors that the stock so acquired would be "for investment and not for resale publicly."
(3) The corporation agreed prior to the expiration of 18 months from the date of the stock issue to take such proceedings as might be necessary to cause the shares sold to the investors to be registered or otherwise qualified or exempted from registration pursuant to the Securities Act of 1933 as amended; and that such agreements (with the private investors) contain such other terms, conditions and representations as were deemed necessary by the company or its counsel.
*361 The Directors also authorized the corporation to apply to list on the American Stock Exchange, as expeditiously as possible, "such additional shares as may be sold", and the appropriate officers to issue common stock of the company to private investors "totalling not in excess of 15 in the aggregate (including those private investors referred to in the prior resolution), for the sum representing the difference between $600,000 and $387,204, the amount obtained by the private sale referred to in the foregoing resolutions, to wit, the sum of $212,796, * * * at a price of $4.00 below the approximate market price at the time of the closing of such private placement." The authority conferred by the foregoing resolutions was expressly limited to a period of 30 days from December 21, 1961.
The subject of the sale of the $6. shares had been discussed and the price set by the directors several weeks prior to December 21, 1961, and early in the month Brooks had told Ludwig (who became one of the private investors to the extent of 8,500 shares) that the corporation was interested in selling stock at $6. per share. At the directors' meeting of December 21, it was the understanding of Moss, that no private investor other than Ludwig had suggested that any director other than Moss participate in the stock purchase. Ludwig denied that he had ever required Moss or any other director to participate in the purchase prior to Ludwig's execution of his stock purchase agreement on December 28, 1961.
THE COMMON LAW COUNT
The complaint alleges, "The issuance of said shares was fraudulent, contrary to the rights of other stockholders, not at fair market value, and at an inadequate consideration, and has resulted in diluting the equity of other shareholders including the plaintiffs, to the benefit of the defendants and the other persons to whom the said 64,534 shares were issued. It has resulted in damage to Hydromatics because the corporations [sic] did not receive a reasonable price for the shares so issued." There is no criticism of the form of financing employed. The sole issue is the reasonableness of the price for which the shares were sold.
This count, alleging common law fraud, must be considered in the light of the common law of the State of New Jersey. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The term "fraud" has been used in the State of New Jersey to designate what is really an action on the case for deceit, Byard v. Holmes, 34 N.J.L. 296 (1879), or an action for deceit, Anderson v. Modica, 4 N.J. 383, 389, 73 A.2d 49 (1950). There are five necessary elements to maintain an action for deceit in New Jersey. Id. The elements are: (1) a representation by defendant to the plaintiff with intent that the latter rely upon it; (2) knowledge on the part of defendant that the representation is in fact false; (3) belief by the plaintiff that the representation is true; (4) reliance on such representation; and (5) the taking of action and consequent injury. Ocean Cape Hotel Corp. v. Masefield Corp., 63 N.J.Super. 369, 379-380, 164 A.2d 607, 612 (1960), citing, among other cases, Fischetto Paper Mill Supply, Inc. v. Quigley Co., Inc., 3 N.J. 149, 152-153, 69 A.2d 318, 320 (1949). The burden of proof is upon the plaintiff. Id. The quantum of proof necessary to sustain this burden is "* * * the greater weight of the evidence * * *". Fischetto Paper Mill Supply, Inc. v. Quigley Co., Inc., supra, 3 N.J. at 155, 69 A.2d at 321. Armel v. Crewick, 71 N.J. Super. 213, 218, 176 A.2d 532, 535 (1961) indicates that an examination of Fischetto suggests that "* * * the greater weight of the evidence * * *" means "* * * a preponderance of the evidence * * *". The plaintiff, therefore, to prevail on this count must allege and prove the elements set forth above.
I hold that the common law count cannot be sustained under the law of New Jersey. The Certificate of Incorporation of Hydromatics set forth the total authorized capital stock: 500,000 shares of common stock of the par value of $1.00 each. Up to the date of the *362 transaction complained of, Hydromatics had issued and outstanding, or reserved for issuance, 318,000 shares. There were remaining 182,000 shares of unissued but authorized capital stock. The Certificate of Incorporation set forth, as one of the objects of the corporation, "To buy, sell, hold and reissue the stocks, bonds or other securities of this corporation." The Certificate of Incorporation empowered the Board of Directors to "* * * exercise all corporate powers, except as otherwise provided by statute * * *". This included the power to authorize the issuance and sale of additional capital stock subject, of course, to the provision of N.J.S.A. 14:8-1 that par value stock may not be issued at less than its par value. The Board of Directors could also create optional rights to purchase or subscribe to stock of any class; and could create preemptive rights as determined in its sole discretion as to both amount and price. The Board, therefore, needed no prior approval of the stockholders in order to authorize the issuance of the 64,534 shares. Though the Board needed no prior approval, the stockholders nonetheless purportedly ratified this transaction on February 8, 1962, with full knowledge of the directors' interest which was contained in the Proxy Statement. "When stockholders have notice of the director's interest and authorize the directors to enter into a contract, the agreement will be unassailable in the absence of actual fraud or want of power in the corporation." Eliasberg v. Standard Oil Co., 23 N.J.Super. 431, 441, 92 A.2d 862, 867 (1952), affd. per curiam 12 N.J. 467, 97 A.2d 437 (1953). The plaintiff relies upon the following language contained in Hill Dredging Corp. v. Risley, 18 N.J. 501, 531, 114 A.2d 697, 713 (1955):
"Where a director enters into a contract or transaction with his own corporation, without the approval of the stockholders first having been obtained, the burden is upon the director to completely justify the transaction. Eliasberg v. Standard Oil Co. of N. J., supra." [Emphasis added]
However, the Certificate of Incorporation states that "* * * any director individually * * * may be a party to or may be pecuniarily or otherwise interested in any contract or transaction of this corporation, provided that the fact that he * * * is so interested shall be disclosed or shall have been known to the Board or a majority thereof * * *". [Emphasis added] This transaction, therefore, was prima facie valid, and cannot be successfully attacked without proof that it was of such a character that the stockholders could not authorize it in advance or ratify it, or that it was fraudulent. See Helfman v. American Light & Traction Co., 121 N.J.Eq. 1, 14, 187 A. 540 (1936). As a matter of fact, this transaction was authorized in advance, by the Certificate of Incorporation. This does not mean, however, that the provisions in the Certificate of Incorporation preclude the Court from scrutinizing the transaction with respect to fairness. Had the plaintiff shown, which he did not, that the transaction was not honest, fair and reasonable, the burden to produce evidence would then shift to the defendants to show the transaction to be honest, fair and reasonable. See Abeles v. Adams Engineering Co., Inc., 35 N.J. 411, 428, 173 A.2d 246, 255 (1961). The burden of proof as to the fairness of a transaction in which the directors personally participate is not upon the Board of Directors where it can be shown that the act done was permissible, that the act was done with full disclosure to the stockholders, and absent a showing that the transaction was unfair in regard to the corporation. Plaintiff's reliance on Eliasberg v. Standard Oil Co., supra, and Hill Dredging Corp. v. Risley, supra, to support the proposition that the burden of proof is upon the directors to justify this transaction, is not well-founded. In Eliasberg, the stockholders had notice of, and approved, the plan of the directors. In Hill Dredging, there was no quorum present, and the purported action taken was not the act of the corporation, was not binding upon it, and was a nullity. The only question *363 remaining under this count is whether this Court can infer, from the disparity between the $6. purchase price and the fair market value of this stock as evidenced by those shares then registered and listed on the American Stock Exchange minus a reasonable discount, that the purchase price of the $6. shares was so unreasonably low as to amount to fraud? The answer is no. "The power to issue and sell permits issuance for any consideration properly fixed by the board of directors." Hodge v. Cuba Co., 142 N.J.Eq. 340, 345, 60 A.2d 88, 92 (1948). The plaintiff has not carried the rather strict burden necessary to make out a case under the common law for fraud. The New Jersey cases, in setting the standard for directors who enter into contracts affecting the corporation, indicate that such contracts are voidable where negotiated without the knowledge and consent of the stockholders. Daloisio v. Peninsula Land Co., 43 N.J.Super. 79, 88, 127 A.2d 885, 890 (1956). This is not such a case. Judgment must go for defendants upon the first count.[5]
SECTION 10(b)
Hydromatics' issuance of the $6. shares was a stock transaction to which the anti-fraud policy expressed in Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78j(b) extends. Hooper v. Mountain States Securities Corp., 5 Cir. 1960, 282 F.2d 195; cert. den. 1961, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693; McClure v. Borne Chemical Co., 292 F.2d 824 (3rd Cir. 1961) cert. den. 368 U.S. 939, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961) [By Implication].
Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78j(b), declares it to be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facilities of any national securities exchange "(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors."
The rule-making power granted by the foregoing statutory section to the Commission (S.E.C.) was implemented by its adoption of Rule X-10B-5, 17 C.F. R. 240.10b-5. That rule proscribed (1) the employment of any device, scheme, or artifice to defraud; (2) the making of any untrue statement of a material fact, or the omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or (3) the engagement in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. The rule was patterned upon the language of § 17(a) of the Securities Act of 1933, 15 U.S.C.A. § 77q(a), but added words to cover fraud if perpetrated on sellers as well as purchasers. Rule X-10B-5 extended to sellers the same protection, against fraudulent and other unlawful schemes, which has been afforded *364 purchasers of securities. Hooper v. Mountain States Securities Corp., supra, 282 F.2d at 201.
To make out a case under the statute and Rule X-10B-5, the plaintiff must prove that, as factors of material importance in the alleged transaction, (1) the defendants used the mails or instrumentalities of interstate commerce (2) there was a purchase or sale of a security, and (3) the defendants used a manipulative or deceptive device. Stevens v. Vowell, 343 F.2d 374, 378 (10 Cir. 1965). The evidence indicates that there was use of the mails in regard to the sale of the $6. shares. Investment letters were sent to private investors and small business investment corporations. Letters in regard to this issue of stock were also sent to the National Newark and Essex Banking Company and the National State Bank of Newark. Ample evidence of actual sale of the $6. shares is present. The requirement of the use of a manipulative or deceptive device is evidenced by the fact that the directors and officers of Hydromatics, Inc. purchased some of these $6. shares before their participation in this distribution of stock was completed.[6] I therefore conclude that the defendant directors violated Rule X-10B-5.
"All that is required to establish a violation of section 10 is a showing that a means, instrumentality or facility of a kind described in the introductory language of that section was used, and that in connection with that use an act of a kind described in section 10(a) or (b) occurred."
Matheson v. Armbrust, 9 Cir. 1960, 284 F.2d 670, 673, cert. den. 365 U.S. 870, 81 S.Ct. 904, 5 L.Ed.2d 860; citing Errion v. Connell, 9 Cir. 1956, 236 F.2d 447, 455. See also Fratt v. Robinson, 9 Cir. 1953, 203 F.2d 627, 634, 37 A.L.R.2d 636; Stevens v. Vowell, 10 Cir. 1965, 343 F.2d 374, 378-379.
RULE X-10B-5 DAMAGES
The corporation's actual damages are recoverable. 15 U.S.C.A. § 78bb(a); Mills v. Sarjem Corp., 133 F. Supp. 753, 770 (D.N.J.1955); Meisel v. North Jersey Trust Co. of Ridgewood, N. J., 216 F.Supp. 469 (S.D.N.Y.1963); Speed v. Transamerica Corp., 135 F.Supp. 176, 186 (D.Del.1955), modified on other grounds, 235 F.2d 369 (3 Cir. 1956). No punitive damages are recoverable. Meisel v. North Jersey Trust Co. of Ridgewood, N. J., supra. The actual discounts, as applied to the average market price, on the respective material dates under Rule X-10B-5 were as follows:
Average Market
Date Price Discount
12/28/61 13¼ 45%
12/29/61 14 1/16 42%
1/2/62 15½ 38%
The expert testimony set forth a wide range of permissive discount which, under the facts here, is neither very helpful nor highly persuasive. I have concluded that a reasonable discount, under all the facts and circumstances of this case, was 20%. The measure of damages is the difference between the total price paid at $6. per share and the total price paid at 20% discount of the average market price on the date of the respective purchases. This measure of damages is to be applied to the respective directors individually for the $6. shares personally acquired. It is also to be applied to the $6. shares which were sold to the Trust. As to these shares, the liability of Moss and Britton, as sole members of the Administrative Committee, is joint and several. *365 The Administrative Committee, by letter dated December 21, 1961 to Brooks as Trustee, authorized the purchase of 5,000 of the $6. shares. Brooks as Trustee incurs no liability in regard to the purchase of these shares. The Employees' Profit Sharing and Retirement Plan, in Article II, paragraph 2, confers complete control of administration upon the Administrative Committee. Article VI, paragraph 1 of the Plan requires the Trustee to operate pursuant to the Committee's direction. The Trust Agreement, in Article I, paragraphs 2, 3 and 5, and in Article IV, paragraph 1, requires the Trustee to follow the directions of the Committee. Article IV, paragraph 3 of the Trust Agreement relieves the Trustee of any liability incurred in following the directions of the Administrative Committee. See Restatement (Second), Trusts § 185, comment b (1959). Article II, paragraph 5 of the Plan contains the following provision:
"No member of the Committee shall be liable to the Company, to the Trustee, to the members, or to any beneficiary or the legal representative of any member, for anything done or omitted to be done, excepting only for fraud, bad faith or gross negligence." (Emphasis added)
This provision cannot serve to exonerate Moss and Britton since the exception contained therein is sufficient to encompass the proscription of Section 10(b) and Rule X-10B-5. See Restatement (Second), Trusts § 185, comment h (1959).
On December 28, 1961, the average market price was 13¼. Applying the 20% discount to this average market price, and computing according to the measure of damages set forth above, the damages assessed against the directors severally for their respective individual purchases on December 28, 1961 are as follows:[7]
Shares
Directors Purchased Damages
Moss 8500 $39,100.00
Britton 4167 19,168.20
Brooks 8500 39,100.00
Nathan 2500 11,500.00
Sokol 1467 6,748.20
___________
$115,616.40
An accounting must now be had for the 3900 shares sold to the Trust.[8] On December 29, 1961, the average market price was 14 1/16 ($14.06). On this date, 3900 $6. shares were sold to the Trust.[9] The damages are $20,475.00; $10,237.50 as to Moss, and the same amount as to Britton.
Thus, the total damages under Rule X-10B-5 are set forth as follows:
Joint and
Several Several Total
Moss $ 39100.00 $ 10237.50 $ 49337.50
Britton 19168.20 10237.50 29405.70
Brooks 39100.00 39100.00
Nathan 11500.00 11500.00
Sokol 6748.20 6748.20
____________ ___________ ____________
$115,616.40 $20,475.00 $136,091.40
*366 SECTION 16(b)
Section 16(b) of the Act, 15 U.S.C.A. § 78p, applies only to registered securities listed on a national securities exchange. Section 16(b) must be read in conjunction with § 16(a) in order to determine who is "such * * * director" who may be liable under § 16(b). HeliCoil Corp. v. Webster, D.N.J.1963, 222 F. Supp. 831, 836, affd. mod. 3 Cir. 1964, 352 F.2d 156, 160. Where, as here, the corporation has any equity securities registered on an exchange, its directors are required by § 16(a) of the Act to report all of their equity securities in the corporation and such directors would qualify as "such * * * director" who might be liable under § 16(b). Petteys v. Northwest Airlines, Inc., D.C.Minn.1965, 246 F.Supp. 526. In Western Auto Supply Co. v. Gamble-Skogmo, Inc., 8 Cir. 1965, 348 F.2d 736, cert. den. 382 U.S. 987, 86 S.Ct. 556, 15 L.Ed.2d 475 (1966), a corporate insider who purchased shares of stock of an issuing corporation for the purpose of contributing so much thereof as might be necessary to discharge the corporation's obligation to its profit sharing stock bonus trust fund, and did in fact transfer most of the shares so purchased to the fund, was liable after sale of the stock within six months of its purchase for the short swing profit on the shares transferred.
The defendants Moss, Britton and Sokol,[10] as directors and officers of Hydromatics, were required by § 16 of the Act to file within ten days a statement with the American Stock Exchange, and duplicate original thereof with the S.E.C. of the amount of all equity securities of Hydromatics of which each of them was the beneficial owner and within ten days after the close of each month thereafter a statement with duplicate original to the Commission indicating his ownership at the close of that month and such changes in his ownership as had occurred during the month. Subsection (b) of the same Section states the following requirements: "For the purpose of preventing the unfair use of information which may have been obtained by * * * [him] by reason of his relationship with the issuer [Hydromatics], any profit realized by him from any purchase or sale, or any sale and purchase, of any equity securities of such issuer * * * within any period of less than six months, * * *, shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such * * * director * * * in entering into such transaction of holding the securities purchased or of not repurchasing the securities sold for a period exceeding six months." The same subsection provides that "Suit to recover such profit may be instituted at law or in equity in any court of competent jurisdiction by the issuer, or by the owner of any securities of the issuer in the name and in behalf of the issuer if the issuer shall fail or refuse to bring such suit within sixty days after request or shall fail diligently to prosecute the same thereafter; * * *." This subsection shall not be construed to cover any transaction where such beneficial owner [director] was not both at the time of the purchase and sale, or the sale and purchase, of the securities involved, or any transaction or transactions which the Commission by rules and regulations may exempt as not comprehended within the purpose of this subsection." Defendants Moss, Britton and Sokol were not within the exception stated in the last foregoing quoted sentence.
Besides being directors and officers of Hydromatics, defendants Moss and Britton were the sole members of the Administrative Committee, and the defendant Brooks was the sole trustee of Hydromatics Employees Profit Sharing and Retirement Trust during the same period. *367 While title to the assets of the Trust was vested in the Trustee, the members of the Administrative Committee were charged with the entire duty of its administration. Brooks, the Trustee, therefore, was a mere custodian of the assets of the Trust and acted or refrained from acting as directed by the Administrative Committee.
It was admitted by the defendants that the Trust sold 1100 shares of stock of Hydromatics on the American Stock Exchange as disclosed by the following schedule:
Number Price Net
of Per Amount
Trade Date Shares Share Received
Dec. 27, 1961 100 12¾ $1,251.70
Dec. 27, 1961 100 12¾ 1,251.70
Dec. 27, 1961 100 12¾ 1,251.70
Dec. 27, 1961 100 13 1,276.45
Dec. 28, 1961 100 13 1,276.45
Dec. 27, 1961 100 13¼ 1,301.20
Dec. 28, 1961 100 13 1,276.45
Dec. 29, 1961 100 13 5/8 1,338.28
Dec. 29, 1961 100 13¾ 1,350.66
Jan. 2, 1962 200 15¼ 2,998.23
There was evidence that defendant Brooks, as Trustee of the Trust, pursuant to the instructions of Moss and Britton purchased 5,000 of the $6. shares of Hydromatics in December, 1961.
Moss and Britton were pecuniarily interested in the Trust as beneficiary members. On August 31, 1961, Trustee Brooks set forth the value of the membership shares owned respectively by Moss and Britton both in dollar amounts as of that date and percentage of interest in the Trust. The interest of Moss was 23.79% and that of Britton 14.66%. The percentage interest of each of these defendants was not shown to have decreased between August 31, 1961 and January 2, 1962. The dollar interest of defendants Moss and Britton between September 1, 1961 and August 31, 1962 depended upon the evaluation of the Trust assets on any particular day and reassignments of the interest of the various other employee members who died, resigned or otherwise lost their memberships in the Trust during the year. Since the defendants controlled the corporation and only the corporation could terminate the Trust, the minimum percentage interest of Moss and Britton in the Trust assets when the Trust made purchases and sales of Hydromatics stock in December, 1961 and January, 1962 was not less than the percentages set forth in Brooks' report of August 31, 1961. The Trust received a gross amount of $14,572.82 for the 1100 shares of Hydromatics stock which it sold between December 27, 1961 and January 2, 1962 and the Trust purchased more than a like amount of shares from the corporation in December, 1961 at a price of $6. per share, paying $6,600 for 1100 shares. The Trust made a profit of $7,972.82 on these transactions. This profit is recoverable by the corporation from Moss and Britton under § 16(b). Alternatively not less than the percentage shares of the Trust owned by Moss and Britton at the time of the foregoing transaction may be applied to the profits of Moss and Britton. This would entitle the corporation to recover 23.79% of $7,972.82, or $1,896.73 from Moss and 14.66% of $7,972.82 or $1,168.82 from Britton.
With respect to defendant Sokol, the evidence discloses that on December 22, 1961, he sold 100 shares of Hydromatics *368 stock on the American Stock Exchange. The price per share was 10 5/8 . The net amount received by Sokol was $1,041.40. On December 26, 1961, Sokol sold 100 shares of Hydromatics stock on the American Stock Exchange. The price per share was 11. The net amount received by Sokol was $1,078.53. The total net amount received by Sokol from those two transactions was $2,119.93. Sokol purchased 1667 shares of the $6. stock on December 28, 1961. The price of 200 of these shares was $1,200.00. Matching the purchase price of 200 of the $6. shares with the total net amount received by Sokol in the American Stock Exchange transactions, the profit to Sokol was $919.93. Sokol is liable to the corporation in damages for this amount. His purported settlement with the corporation for $100.00 may be deducted from this figure, leaving damages of $819.93.
The corporation shall have interest on the damages, assessed herein under Section 16(b), from the date of sale. Western Auto Supply Co. v. Gamble-Skogmo, Inc., supra at 744.[11]
TOTAL STATUTORY DAMAGES
The figures below include both Section 16(b) damages and Rule X-10B-5 damages.
Rule X-10B-5 Section 16(b) Total
Moss $ 49337.50 $1896.73 $ 51234.23
Britton 29405.70 1168.82 30574.52
Brooks 39100.00 39100.00
Nathan 11500.00 11500.00
Sokol 6748.20 819.93 7568.13
___________ _________ ___________
$136,091.40 $3885.48 $139,976.88
I find for the defendants on the common law count for fraud. I find for the plaintiff on the statutory counts under Section 16(b) and Rule X-10B-5, respectively. An appropriate order may be submitted in accordance with the views herein expressed.
ON MOTION OF PLAINTIFFS TO AMEND OPINION FILED MAY 6, 1966 AND CROSS-MOTION OF INDIVIDUAL DEFENDANTS TO AMEND THE COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs, pursuant to Rule 52(b), F. R.Civ.P., moved to amend and supplement this Court's opinion filed May 6, 1966. Defendants, with the exception of Hydromatics, Inc., made a cross-motion for amendments to this Court's findings of fact and conclusions of law, and also opposed plaintiffs' motion. Briefs were submitted for the respective parties, and oral argument was heard on June 27, 1966. At the conclusion of this hearing, I reserved decision on the contentions presented. This is the embodiment of the decision so reserved.
As to plaintiffs' motion, the corporation shall have interest from the date of sale on the damages assessed under S.E.C. Rule X-10B-5 in the opinion filed May 6, 1966.[1] See Speed v. Transamerica Corp., 135 F.Supp. 176, 203 (D.Del.1955) aff'd as modified 235 *369 F.2d 369, 374 (3rd Cir. 1956). In all other respects, plaintiffs' motion is denied; it appearing that none of the other requested additional findings is warranted by the evidence. Bartol v. McGinnes, 194 F.Supp. 82 (E.D.Pa.1961).
Defendants' cross-motion is in all respects denied for the same reason, and upon the same authority, which constitutes the basis of the denial of all of the plaintiffs' motion except the allowance of Rule X-10B-5 interest. It should be noted that defendants, in urging the Court to find that the corporation's claim for Sokol's short swing profit had been satisfied, relied upon an exhibit[2] in evidence, and a portion of Sokol's testimony in regard to his purported settlement with the corporation. Sokol testified that he prepared the memorandum which was admitted into evidence as Defendant's Exhibit D-12, and that this memorandum was executed after he had left the corporation. The memorandum bears neither the signature of Sokol nor the signature of any other person. It is not dated, and does not specifically set forth the circumstances under which it was executed. I find this evidence not persuasive, and adhere to the views expressed in my opinion of May 6, 1966.
Plaintiffs' motion, except so much thereof as seeks inclusion of Rule X-10B-5 interest, is accordingly denied. Defendants' cross-motion is denied in its entirety. An appropriate order may be submitted in accordance with the views expressed in this Court's opinion of May 6, 1966, to include the views herein expressed in regard to the allowance of Rule X-10B-5 interest.
NOTES
[1] The resolution of the board of directors did not require ratification by the stockholders, nor did the certificate of incorporation of the company provide for stockholder ratification of the action of the board of directors.
[2] Prior to the issuance of the $6. shares, the stockholdings of the officers and directors were on December 18, 1961:
Moss 126,175 shares
Britton 43,400 shares
Sokol 381 shares
Nathan 201 shares
Brooks 800 shares
_______
170,957 shares
Brooks as Trustee of the
Profit Sharing and Retirement
Trust then
owned 1,100 shares
_______
172,057 shares
There were 288,000 shares of $1. par value issued and outstanding when the $6. shares were issued and an additional 30,000 shares had been reserved for issue in accordance with the provisions of an employees' stock option plan. The registered stock listed for trading on the American Stock Exchange had been selling, between December 28, 1961 and January 2, 1962, at a high of 15¾ and a low of 13. On January 17, 1962 the Exchange suspended all trading in Hydromatics stock. The suspension was removed February 15, 1962.
[3] The terms of the Empire Trust $500,000 note forbade Hydromatics to incur any obligations in excess of $250,000, and required that the ratio between debtor's consolidated current assets and consolidated current liabilities be maintained at not less than 1.75 to 1.
[4] A ball valve is a sphere mounted and rotated on an axis in a sealed chamber with a cylindered aperture drilled through the sphere at an angle of 90 degrees to the axis of rotation. When the sphere is aligned with an in-line flow of material through a tubular conductor, such flow becomes infinitely variable by means of a 90 degree rotation of the sphere.
[5] "State court decisions involving fraud and misrepresentation are applicable only indirectly as supplementary aids in establishing standards of diligence. Congress has established its own standard which is to be measured by federal law interpreting the statute and the rule unhindered by restrictive applications of state common law." Kohler v. Kohler Co., 319 F.2d 634, 642, 7 A.L.R.3d 486 (7th Cir. 1963). See Stevens v. Vowell, 343 F.2d 374, 379 (10 Cir. 1965) and Carliner v. Fair Lanes, Inc., 244 F.Supp. 25, 28-29 (D.Md. 1965) where it is stated that it is not necessary to allege or prove common law fraud to make out a case under Section 10(b) and Rule X-10B-5. Kohler v. Kohler Co., 319 F.2d 634, 642 (7 Cir. 1963). In this framework, I move to a consideration of the federal statutory counts; it being clear that facts, which may justify recovery under Section 10(b) and Rule X-10B-5, may possibly not justify recovery under the common law of New Jersey. See Kohler v. Kohler Co., 208 F.Supp. 808, 823 (E.D.Wis.1962), affd. 319 F.2d 634 (7 Cir. 1963).
[6] "Manipulative or deceptive device" is defined in Rule X-10B-6, 17 C.F.R. 240.10b6(a) (2), as including those transactions in which a person, who participates in the distribution of the securities, also bids for these securities or purchases them for an account in which he has a beneficial interest. See Securities and Exchange Commission v. Scott Taylor & Co., 183 F. Supp. 904, 906-909 (S.D.N.Y.1959); Securities and Exchange Commission v. Electronics Security Corp., 217 F.Supp. 831, 836-838 (D.Minn.1963).
[7] An additional 200 shares purchased by Sokol are accounted for under Section 16 (b) damages.
[8] There were 5,000 shares purchased by the Trust, but 1100 of these shares have been accounted for under Section 16(b) damages. This leaves 3,900 shares.
[9] See Footnote 8.
[10] Defendant Sokol made a purported settlement with the corporation of its claim for his short swing profit. This settlement cannot be sustained. To sustain a settlement for an amount which would be substantially less than the amount recoverable under the statute would be against public policy. Blau v. Hodgkinson, 100 F.Supp. 361, 371 (S.D.N.Y.1951).
[11] The date of sale as to Moss and Britton was December 29, 1961; as to Sokol, December 28, 1961.
[1] The date of sale as to Moss, Britton, Brooks, Nathan, and Sokol, individually, was December 28, 1961; as to Moss and Britton as the sole members of the Administrative Committee, December 29, 1961.
[2] Defendant's Exhibit D-12, in substance:
Sale of 200 shares of Hydromatics stock $2119.93
Cost of new shares 1200.00
________
Profit 919.93
Paid in cashFeb. 8, 1962 100.00
______
819.93
Unpaid salary 346.00
Unpaid vacation pay 346.00 692.00
______
127.93
______
Balance for time spent with officers, directors, etc. on pending matters. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600665/ | 1 So.3d 145 (2008)
Jeffrey Scott MOORE
v.
CITY OF LEEDS.
CR-06-0760.
Court of Criminal Appeals of Alabama.
February 1, 2008.
Rehearing Denied April 11, 2008.
*146 Maxwell H. Pulliam, Jr., Birmingham, for appellant.
Susan J. Walker, Birmingham, for appellee.
PER CURIAM.
The appellant, Jeffrey Scott Moore, appeals his convictions for domestic violence in the third degree based on the underlying offense of assault, see § 13A-6-132, Ala.Code 1975; harassment, see § 13A-11-8(a)(1)b., Ala.Code 1975; and harassing communications, see § 13A-11-8(b)(1), Ala.Code 1975. Moore was sentenced to one year in jail; that sentence was split and he was ordered to serve 90 days in jail and 2 years on probation. The trial court also ordered Moore to pay the medical bills incurred by the victim, his ex-wife, Karen Kelly, and to pay his child-support *147 arrearage in full within six months of the date of the sentencing order.
The State's evidence tended to show the following: Moore and Kelly were married in May 2001; they separated in March 2003. After the separation, Moore lived in Florida and Kelly lived in Leeds with their daughter. On December 31, 2003, Moore verbally threatened Kelly. As a result of Moore's threat, Kelly obtained an order of protection.
On September 15, 2004, Moore went to Leeds to see Kelly and his daughter. Moore and Kelly left Kelly's daughter with a friend and were on their way to have dinner when they began arguing over financial matters. According to Kelly, Moore began calling her names and hit her on her left shoulder as he was driving her vehicle. Kelly told him to pull the car over and to get out. He kept driving, however, and the argument continued. Kelly said Moore hit her on her right thigh, her chest, and then hit her so hard in the face that "blood went everywhere." (R. 38.)
Steven Todd Huddleston testified that as he was driving in Leeds on the evening of September 15, 2004, he pulled up next to a sport utility vehicle, or SUV, and saw a person in the passenger seat trying to get his attention. When the SUV pulled away, Huddleston followed it. The SUV stopped in front of a house, and the passenger door opened. Huddleston identified Kelly as the individual who got out of the vehicle from the passenger side. Huddleston said that she had blood on her face. A man got out of the SUV on the driver's side and walked toward Huddleston. At trial, Huddleston identified the man as Moore. Huddleston said that he rolled his window down when Moore walked up to his truck. Moore told him that Kelly was his wife, that she had started a fight with him, and that he was leaving. He handed Huddleston Kelly's car keys, then got in his own car and drove away. Kelly telephoned the police to report the assault.
Huddleston also testified that when he spoke with Moore he did not see any blood or scratches on Moore and that Moore's shirt was not torn. Huddleston stayed with Kelly until the police arrived.
Meanwhile, Moore went to a friend's house in Hoover. The friend telephoned the police. Officer Smitty Avery of the Hoover Police Department responded to the call. He said when he saw Moore, Moore looked like he had been "in some sort of physical altercation." (R. 154.) The next day, Moore filed a domestic incident/offense report with the police. (R. 156.)
Kelly sustained a number of bruises and a broken nose as a result of the altercation with Moore. Dr. Ronald McCoy, an ear, nose, and throat specialist, testified that he treated Kelly in September 2004 for a broken nose. He said that Kelly's nose had been broken from left to right, which is consistent with Kelly's description of the altercation, in which she was sitting in the passenger seat of the car when she was hit by Moore, who was in the driver's seat.
In addition to evidence regarding the assault, Kelly also presented telephone bills that showed that between September 14, 2004, and October 29, 2004, Moore telephoned Kelly over 200 times. Kelly said during that same time, Moore left numerous threatening messages on her telephone-answering machine and he sent her several threatening text messages on her cell phone. Kelly notified the police of the threats. She testified that she felt frightened and intimidated by Moore.
Moore testified in his own defense. He denied having hit Kelly. He said that on the day of the alleged assault he and Kelly were going to dinner and he was driving. *148 Kelly had been drinking, he said, and when he passed the restaurant Kelly hit him in the temple with her shoe. She attacked him, he said, trying to get control of the car. When he made an abrupt stop her head hit the steering wheel and bounced off the dashboard. That was how Kelly broke her nose, Moore said. He also testified that although he had made a lot of telephone calls to Kelly, some were made when Hurricane Ivan was about to hit the Gulf Coast; he testified that he never made any threats.
The jury convicted Moore of domestic violence based on the underlying offenses of assault, harassment, and harassing communications. This appeal followed.
I.
Moore contends that the trial court abused its discretion in allowing Dr. McCoy to testify as to what Kelly had told him when he was treating her broken nose. Specifically, he argues that the hearsay statement that Kelly made to Dr. McCoy, i.e., that her injury was caused as a result of an "altercation with her husband while they were driving," was not admissible under the medical-diagnosis hearsay exception in Rule 803(4), Ala. R.Evid. He asserts that the statement was not admissible because it did not concern the cause of her injuries but was a statement of fault and that statements of fault are not admissible under the medical-diagnosis exception recognized in Rule 803(4), Ala.R.Evid.
The admission of evidence under a hearsay exception is within the sound discretion of the trial court. See Lacy v. State, 673 So.2d 820, 825 (Ala.Crim.App. 1995) (and cases cited therein). Rule 803(4), Ala. R. Evid., provides that "[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment," are exceptions to the general rule excluding hearsay testimony.
This Court, in Biles v. State, 715 So.2d 878, 887 (Ala.Crim.App.1997), explained the scope of this hearsay exception:
"Rule 803(4) permits `all statements serving reasonably as the basis of diagnosis or treatment ... [to be admitted] as substantive proof of the matter asserted.' Ala. R. Evid. 803(4), Advisory Committee's Notes. In determining whether a statement comes within this hearsay exception, courts have applied a `two-pronged test.' The first prong `is the requirement that the statement must be one upon which medical personnel reasonably rely in diagnosis and treatment. The second prong consists of a requirement that the declarant possess a motive which is consistent with the rule's underlying purpose ... [of] seeking diagnosis or treatment.' McElroy's Alabama Evidence § 261.02(4) (5th ed.1996)."
In Ex parte C.L.Y., 928 So.2d 1069 (Ala. 2005), the Alabama Supreme Court upheld the trial court's admission of a treating physician's testimony concerning statements made to him by a sexual-abuse victim regarding the identity of her abuser. The Supreme Court stated:
"K.H. also made statements to a treating physician in the emergency room while she was being treated following the sexual abuse. When the doctor asked her if she had ever been touched inappropriately, K.H. stated that C.L.Y. had pulled off her panties while they were in an automobile and had rubbed her vaginal area and had put lotion on her. These statements are admissible *149 under the exception to the hearsay rule set out in Rule 803(4), Ala. R. Evid., for `Statements for Purposes of Medical Diagnosis or Treatment.' Although statements indicating fault normally do not qualify for this hearsay exception, in cases of sexual abuse where the identity of the perpetrator is related to the treatment of the emotional and psychological injuries suffered by the victim, such statements regarding identity can fall within this exception to the hearsay rule. See Moore v. C.F. (In re Moore), 165 B.R. 495, 498-99 (M.D.Ala.1993)."
928 So.2d at 1073 (emphasis added). The case relied on by the Alabama Supreme Court, Moore v. C.F., 165 B.R. 495 (M.D.Ala.1993), stated:
"Admittedly, the advisory committee notes to Rule 803(4) provide that `Statements as to fault would not ordinarily qualify' as an exception to hearsay under the rule. The notes give as an example that `a patient's statement that he was struck by an automobile would qualify, but not his statement that the car was driven through a red light.' Fed. R.Evid. 803(4) advisory committee notes. Similarly, courts have held that statements as to identity do not ordinarily qualify as an exception. [United States v.] Iron Shell, 633 F.2d [77] at 84 [(8th Cir.1980)]. As the Eighth Circuit explained in [United States v.] Renville, [779 F.2d 430 (8th Cir.1985)].
"`Statements of identity seldom are made to promote effective treatment; the patient has no sincere desire to frankly account for fault because it is generally irrelevant to an anticipated course of treatment. Additionally, physicians rarely have any reason to rely on statements of identity in treating or diagnosing a patient. These statements are simply irrelevant in the calculus in devising a program of effective treatment.'
"779 F.2d at 436.
"However, as the Eighth Circuit further recognized, it is only `ordinarily' true that statements of fault and identity do not fall within Rule 803(4)'s hearsay exception for medical diagnosis and treatment. Renville, 779 F.2d at 436; see also Fed.R.Evid. 803(4) advisory committee notes (statements of fault `not ordinarily admissible'). `Sexual abuse of children at home presents a wholly different situation.' Renville, 779 F.2d at 437. Statements by a child abuse victim that the abuser is a member or friend of the victim's immediate household are reasonably pertinent to treatment. `Statements of this kind differ from the statements of fault identified by the Rules Advisory Committee ... in a crucial way: they are reasonably relied on by a physician in treatment or diagnosis.' Id. at 436-37. Because `child abuse involves more than physical injury,' id. at 437, the mental health provider or `physician must be attentive to treating the emotional and psychological injuries which accompany this crime.' Id. Therefore, `[t]he exact nature and extent of the psychological problems which ensue from child abuse often depend on the identity of the abuser.' Id. Because this was no less true with regard to the treatment C.F.'s counselor provided to C.F., it was appropriate and necessary that C.F. reveal to her counselor the identity of her abuser.
"Statements of identity by a minor receiving treatment for sexual abuse can also meet the first part of the two-part test for admission of out-of-court statements pursuant to Rule 803(4)that is, `the declarant's motive in making the statement must be consistent with the purposes of promoting treatment.' Renville, 779 F.2d at 436. If the child is *150 aware that the identity of the abuser is important to diagnosis and treatment, then the child's `motivation to speak truthfully is the same as that which insures reliability when he recounts the chronology of events or details symptoms of somatic distress.' Id. at 438. It is circumstantially apparent from the record that C.F. was fully aware that her past and present relationship to Mooreand thus her need to identify Moore as her abuserwas very much a part of her treatment. Nothing in the record indicates that C.F.'s motive in identifying Moore as her sexual abuser was other than as a patient responding to a mental health counselor's questioning for prospective treatment."
165 B.R. at 498-99.
We believe that the rationale employed by the Supreme Court in C.L.Y. would also apply to victims of domestic violence. In United States v. Joe, 8 F.3d 1488 (10th Cir.1993), the United States Court of Appeals for the Tenth Circuit recognized that Rule 803(4), Fed.R.Evid.,[1] which is identical to Rule 803(4), Ala.R.Evid., applied to an admission made by a domestic violence victim to a treating physician concerning the identity of her abuser. The court noted:
"Unlike the victims in the cases cited above, Ms. Joe was not a child but rather the estranged wife of the alleged sexual abuser. However, the identity of the abuser is reasonably pertinent to treatment in virtually every domestic sexual assault case, even those not involving children. All victims of domestic sexual abuse suffer emotional and psychological injuries, the exact nature and extent of which depend on the identity of the abuser. The physician generally must know who the abuser was in order to render proper treatment because the physician's treatment will necessarily differ when the abuser is a member of the victim's family or household. In the domestic sexual abuse case, for example, the treating physician may recommend special therapy or counseling and instruct the victim to remove herself from the dangerous environment by leaving the home and seeking shelter elsewhere. In short, the domestic sexual abuser's identity is admissible under Rule 803(4) where the abuser has such an intimate relationship with the victim that the abuser's identity becomes `reasonably pertinent' to the victim's proper treatment."
8 F.3d at 1494-95.
Here, Dr. McCoy testified that he examined Kelly, who was complaining of pain in her nose, recurring nosebleeds and "a deviation in her external nose." (R. 97.) Dr. McCoy said that Kelly had a broken nose. Over Moore's objection, Dr. McCoy testified that, while he was treating Kelly she explained to him that the break had occurred when "she was in an automobile and had an altercation with her husband while they were driving." (R. 98.) Based on the rationale of the Alabama Supreme Court in Ex parte C.L.Y., and the United States Court of Appeals in United States v. Joe, we hold that Kelly's statements to Dr. McCoy concerning the cause of her injuries and the identity of the person who committed the injuries were admissible under Rule 803(4), Ala.R.Evid., for the purpose of treating Kelly's overall medical condition.
*151 II.
Moore next contends that the trial court erred in limiting his cross-examination of Kelly regarding matters relevant to her credibility and veracity. Specifically, Moore asserts that the trial court erred in limiting Moore's questioning of Kelly regarding her failure to follow through on her obligation pursuant to their judgment of divorce which directed Kelly to "cooperate to try to dismiss criminal charges pending against" Moore. (CR. 186.)
Initially we note that
"`"The scope of cross-examination in a criminal proceeding is within the discretion of the trial court, and it is not reviewable except for the trial judge's prejudicial abuse of discretion. The right to a thorough and sifting cross-examination of a witness does not extend to matters that are collateral or immaterial and the trial judge is within his discretion in limiting questions which are of that nature. Collins v. State, [Ala.Crim.App., 364 So.2d 368 (1978).]"'
"Burton v. State, 487 So.2d 951, 956 (Ala.Crim.App.1984), quoting Coburn v. State, 424 So.2d 665, 669 (Ala.Crim.App. 1982)."
Gamble v. State, 791 So.2d 409, 434 (Ala. Crim.App.2000).
On the day before Moore's trial Kelly apparently said that she had her "spurs on" and was "rearing to go." (R. 81.) Moore's attorney said that that comment was "absolutely indicative of her mindset to not cooperate. I think it's absolutely relevant to one of the issues in this case, and it's certainly relevant to her ability to tell the truth." (R. 81.) The trial court, however, said that it did not see how Kelly's comment regarding being ready to go forward with the trial had anything to do with whether she had intended to cooperate with attempting to have the case against Moore dismissed. "That doesn't mean that she hasn't made efforts or has made efforts. It just meant yesterday at 10:00 or 10:30, whenever the speech was had, it just meant that at that point, she was ready to try her case." (R. 81.)
The trial court did allow Moore's attorney to question Kelly about the terms of the divorce judgment, including her agreement to cooperate in having the criminal charges against Moore dismissed. The court did not allow Moore's attorney to question Kelly about the comments she made the day before trial.
We agree that the comments made by Kelly the day before the trial had nothing to do with whether she had cooperated in having the criminal charges dismissed. Moore also failed to adequately explain how Kelly's veracity could be impugned by her eagerness, on the day before trial was set to begin, to put her "spurs on" and have the trial get underway. Based upon the evidence before us, we cannot say that the trial court abused its discretion in limiting Moore's ability to cross-examine Kelly regarding comments she made on the day before Moore's trial was to begin.
III.
Moore last contends that the trial court did not have jurisdiction to order him to pay the child-support arrearage that had accrued since the entry of final divorce judgment. In sentencing Moore on January 18, 2007, the trial court ordered that "all child support owing to [Kelly] shall be brought current by July 19, 2007"six months after the date of sentencing.
A review of the record shows that the trial court's decision to order that Moore pay the child-support arrearage was the result of a request made by Moore's own trial counsel. At Moore's sentencing hearing, *152 Maxwell Pulliam, who represented Moore both at trial and on appeal, informed the trial court that the foreperson of the jury had told him that the jury wanted to recommend that Moore not receive prison time and suggested that instead, Moore be sentenced to counseling, that he be required to pay Kelly's medical expenses, and that he be ordered to catch up on his child-support obligation. (Sentencing hearing, R. 11.) Pulliam encouraged the trial court to consider the jury's request. Later at the same hearing, Pulliam again asked the trial court to place Moore on probation and to make one of the conditions of his probation the payment of his child-support obligation. (Sentencing hearing, R. 13.)
The doctrine of invited error precludes a defendant from inviting error by his own conduct and then seeking to profit from that alleged error. See Mack v. State, 736 So.2d 664, 671 (Ala.Crim.App. 1999) (and cases cited therein). "A party cannot assume inconsistent positions in trial and in the appellate court and, as a general rule, will not be permitted to allege error in trial court proceedings that was invited by him or that was a natural consequence of his own actions." Brooks v. State, 973 So.2d 380, 394 (Ala.Crim.App. 2007); Smith v. State, 745 So.2d 922 (Ala. Crim.App.1999). However, a defendant cannot consent to waive a jurisdictional defect. See Bradley v. State, 925 So.2d 232, 241 (Ala.2005). Thus, the question is whether the alleged error was jurisdictional.
The record reflects that Moore's trial counsel specifically requested the trial court to make the payment of Moore's child-support obligation a condition of his probation. The trial court stated during the sentencing hearing that it would do that, and it later entered a sentencing order sentencing Moore to 1 year in jail and then split that sentence and ordered Moore to serve 90 days, followed by 2 years on probation.[2] The sentencing order also provided that Moore was to pay for the victim's medical bills incurred as the result of Moore's assault and that "[a]ll child support owing to victim shall be brought current by July 19, 2007." The trial court also entered a probation order, which stated, in part:
"It is the order of the court that the probationer comply with the following conditions of probation:
"....
"8. Support his/her dependents to the best of his/her ability.
"....
"19. Other conditions of probation ordered by the court are as follows:
"... All child support to be caught up current by July 19, 2007."
(C. 44.)
In this case, Moore was sentenced pursuant to the Split Sentence Act, at § 15-18-8, Ala.Code 1975. Section 15-18-8(d) provides, in pertinent part, that "[w]hile... on probation and among the conditions thereof, the defendant may be required... [t]o provide for the support of any persons for whose support he or she is legally responsible."
In addition, § 15-22-52, Ala.Code 1975, provides as follows:
"The court shall determine and may at any time modify the conditions of probation and may include among them the following or any other conditions. *153 Such conditions may provide that the probationer shall:
"....
"(9) Support his dependents to the best of his ability."
In Bowers v. State, 565 So.2d 1203 (Ala. Crim.App.1990), this Court, construing § 15-22-52 broadly, noted that the legislature intended the courts to have maximum flexibility to fashion the sentence most appropriate to the individual defendant. Sections 15-18-8 and 15-22-52 are clearly indicative of the legislature's intent to place a great deal of discretionary authority in the trial court to establish the terms and conditions of an individual's probation.
According to the above statutes and cases, the trial court did not lack jurisdiction to order Moore to pay his delinquent child support as a condition of his probation. Thus, the doctrine of invited error precludes Moore from obtaining relief on this claim.
For the foregoing reasons, Moore's convictions and sentence are affirmed.
AFFIRMED.
McMILLAN, SHAW, and WISE, JJ., concur.
BASCHAB, P.J., concurs in part, concurs in the result in part, and concurs specially in part, with opinion.
WELCH, J., concurs in part and dissents in part, with opinion.
BASCHAB, Presiding Judge, concurring in part, concurring in result in part, and concurring specially in part.
I concur in the result as to Part I of the majority opinion, concur specially as to Part II of the majority opinion, and concur as to Part III of the majority opinion.
With regard to Part I of the majority opinion, I do not agree with the majority's reliance on the reasoning in Ex parte C.L.Y., In re Moore, and United States v. Joe because those cases involved statements by victims of sexual abuse. However, I do agree with the majority that the victim's statement in this case was admissible pursuant to Rule 803(4), Ala. R. Evid., and Biles. I also note that McCoy's testimony was merely cumulative to the victim's trial testimony. Therefore, I concur in the result as to Part I of the majority opinion.
With regard to Part II of the majority opinion, I question whether attempting to "bargain away" criminal charges as part of a divorce settlement is legal or ethical. A criminal case is brought in the name of the State, and it is not the province of the victim to dictate the course of its prosecution. Although the victim is a critical participant in the criminal justice process, in the end, the case is not the victim's to dismiss. Leveraging the resolution of criminal proceedings as a quid pro quo for settling civil matters has the potential to subvert the criminal justice system and harm those it is designed to protect. The potential for such harm is exacerbated in domestic violence cases. Therefore, I write specially to encourage attorneys not to engage in this highly questionable practice.
WELCH, Judge, concurring in part and dissenting in part.
I agree with the majority's opinion insofar as it affirms Jeffrey Scott Moore's conviction. However, as discussed below, because the trial court did not have jurisdiction to order Moore to satisfy a civil judgment as part of his sentence in an unrelated criminal case or as a condition of his probation in the criminal case, I respectfully dissent from the opinion insofar as it affirms the sentence imposed in this case.
*154 On appeal, Moore contends that the trial court did not have jurisdiction to order him to pay the child-support arrearage that had accrued since the entry of the divorce judgment, which also established child custody and support matters. In sentencing Moore on January 18, 2007, the trial court ordered that "all child support owing to [Kelly] shall be brought current by July 19, 2007"six months after the date of sentencing.
From the record, it appears that the trial court's decision to order Moore to pay the child-support arrearage came about because of a request made by Moore's own trial counsel. At Moore's sentencing hearing, Maxwell Pulliam, who was Moore's attorney both at trial and on appeal, represented to the trial court that the forewoman of the jury told him that the jury wanted to recommend that Moore not receive prison time and suggested that instead, Moore be sentenced to receive counseling, that he be required to pay Kelly's medical expenses, and that he be ordered to catch up on his child-support obligation, among other things. (Sentencing hearing, R. 11.) Pulliam then encouraged the trial court to consider the jury's request, even though it was not bound to do so. Later in the same hearing, Pulliam again asked the trial court to place Moore on probation and to make one of the conditions of his probation the payment of his child-support obligation. (Sentencing hearing, R. 13.)
Ordinarily, the doctrine of invited error would preclude Moore from alleging error as to this issue. Under the doctrine of invited error, a defendant cannot voluntarily invite error by his own conduct and then seek to profit from that alleged error. Mack v. State, 736 So.2d 664, 671 (Ala. Crim.App.1999) (and cases cited therein). "A party cannot assume inconsistent positions in trial and in the appellate court and, as a general rule, will not be permitted to allege error in trial court proceedings that was invited by him or that was a natural consequence of his own actions." Brooks v. State, 973 So.2d 380, 394 (Ala. Crim.App.2007); Smith v. State, 745 So.2d 922 (Ala.Crim.App.1999).
Nonetheless, one cannot consent to lack of subject-matter jurisdiction or invite a jurisdictional error. Bradley v. State, 925 So.2d 232, 241 (Ala.2005); Flannigan v. Jordan, 871 So.2d 767, 768 (Ala.2003). "A sentence that exceeds the maximum allowed by law is an illegal sentence affecting the trial court's jurisdiction." Wallace v. State, 959 So.2d 1161, 1165 (Ala.Crim. App.2006). Therefore, if Moore's sentence exceeded the statutory punishment for the offenses for which he was convicted, the doctrine of invited error cannot properly be invoked to affirm that sentence.
In this case, Moore was before the court on charges of domestic violence in the third degree, a Class A misdemeanor, § 13A-6-132(a), Ala.Code 1975, and harassment and harassing communications, both of which are Class C misdemeanors, § 13A-11-8(a)(3) and § 13A-11-8(b)(2), respectively. A Class A misdemeanor is punishable by not more than one year in jail, § 13A-5-7(a)(1), and a fine of not more than $2,000. § 13A-5-12(a)(1). A Class C misdemeanor is punishable by not more than three months in jail, § 13A-5-7(a)(3), and a fine of not more than $500. § 13A-5-7(a)(3).[3]
*155 A criminal proceeding is brought before the court either by an indictment or a complaint. Rule 2.1, Ala. R.Crim. P. The matter of Moore's alleged child-support arrearage was not a charge in the indictment against Moore, and it was not a basis for Moore's convictions for domestic violence in the third degree, harassment, and harassing communications. Thus, in requiring Moore to pay his past-due child-support obligation by a date certain as part of his sentence, the trial court exceeded the scope of the statutory punishments allowed for the offenses committed.
The majority states that a court can order a probationer to support his dependents to the best of his ability, as authorized by § 15-22-52(9), Ala.Code 1975. The majority opinion also cites Bowers v. State, 565 So.2d 1203 (Ala.Crim.App.1990), for the proposition that the Legislature intended to grant trial courts a great deal of discretionary authority to establish the terms of an individual's probation. I recognize those statements of the law and agree that requiring a probationer to support his dependents as a condition of probation is laudable.
However, in this case, the trial court went beyond merely ordering Moore to support his dependents to the best of his ability. Here, the trial court ordered Moore to pay his child-support arrearage in full by a certain date as a condition of his probation in an unrelated criminal case. The Supreme Court has held that the term "child-support obligation" as that term is contemplated by Rule 32(B)(6), Ala. R. Jud. Admin. (and thus, at issue here), does not encompass a "child-support arrearage." Ex parte State ex rel. Daw, 786 So.2d 1134, 1137 (Ala.2000); see also Sheeley v. Chapman, 953 So.2d 1252 (Ala.Civ. App.2006).
"A child-support obligation is based on the court's expectation that the obligor will pay in accordance with the court's established schedule. A delinquent child-support obligation, however, receives different treatment. It is clear that `child support payments become final judgments on the day they are due.' Ex parte State ex rel. Lamon, 702 So.2d 449, 450 (Ala.1997); see also State v. Handley, 628 So.2d 726, 727 (Ala.Civ. App.1993); Grogan v. Grogan, 608 So.2d 397, 398 (Ala.Civ.App.1992); Hardy v. Hardy, 600 So.2d 1013, 1015 (Ala.Civ. App.1992); Foster v. Foster, 571 So.2d 1219, 1220 (Ala.Civ.App.1990); and O'Neal v. O'Neal, 532 So.2d 649, 650 (Ala.Civ.App.1988). Thus, the character of the obligation changes once it becomes delinquent, because the fact of the delinquency causes the party to whom the debt is owed to become a judgment creditor, a creditor who may then pursue the typical means of collection that are available to the holder of any judgment. Ex parte State ex rel. Lamon, 702 So.2d at 450. Therefore, a delinquent payment constitutes a legal liability of the obligor, while a child-support obligation is only an expectation that the obligor will make a payment in the future."
Daw, 786 So.2d at 1137.
The law is settled that imprisonment for contempt should not be imposed where the failure to pay child-support arrearage is due to an inability to comply with the order. See, e.g., T.L.D. v. C.G., 849 So.2d 200 (Ala.Civ.App.2002); Falkner v. State ex rel. Falkner, 769 So.2d 933 (Ala.Civ. App.2000); Vinson v. State ex rel. Barron, 724 So.2d 550 (Ala.Civ.App.1998); and Muery v. Muery, 46 Ala.App. 617, 247 So.2d 123, cert. denied, 287 Ala. 737, 247 So.2d 128 (1971). As this Court recognized in Dixon v. State, 920 So.2d 1122, 1126 (Ala.Crim.App.2005):
*156 "Nowhere in our caselaw, statutes, or rules do we allow the imprisonment of a civil debtor because he or she is unable to pay the debt. Nowhere in our caselaw, statutes, or rules will a case of constructive contempt lie for the inability to pay a debt owed to a creditor or, in this case, a victim. Rather, a suit is commenced, a judgment is obtained and executed, and a lien is imposed or wages are garnished. That is, the victim takes advantage of his or her civil remedies; the court does not act as an enforcer and compel payment to the victim through the imposition of a criminal penalty upon the indigent debtor."
If, under our system of laws, imprisonment cannot be countenanced for an inability to pay child support, then it stands to reason that it cannot be an appropriate condition of probation to require a criminal defendant to pay a civil judgment, such as a child-support arrearage, in an unrelated criminal matter, i.e., a matter which is not considered a parallel proceeding. My research has revealed no statute, case law, rule or other authority that would allow a trial court to impose as a condition of probation in a criminal matter the satisfaction of a civil judgment in an unrelated matter. Indeed, to allow such a requirement as a condition to probation seems anathema to American jurisprudence.
In this case, the payment of child-support arrearage cannot be considered a form of restitution for Moore's conviction for domestic violence and harassment. Whether Moore was in arrears on his child-support obligation was not a matter before the trial court. There has been no finding of contempt against Moore for his alleged failure to pay child support. In ordering Moore to pay his child-support arrearage as a condition of his probation in this criminal matter, the trial court in Moore's criminal case is becoming entangled in a civil matter that is not before it.[4] The trial court's sentence, requiring Moore to pay what is in fact a civil judgment in an unrelated case as a condition of his probation in this criminal case, constitutes an illegal sentence.
An illegal sentence exceeds the jurisdiction of the trial court and is void. Wallace, 959 So.2d at 1165; Rogers v. State, 728 So.2d 690, 691 (Ala.Crim.App.1998). Because the trial court did not have the jurisdiction to order Moore to pay his child-support arrearage as part of his sentence in this criminal case, that portion of the judgment ordering such payment is void.
In reaching this conclusion, I want it understood that I do not condone the apparent manipulation of Moore's sentence by his attorney. In ordering Moore to pay his child-support arrearage as part of his sentence in this case, the trial court was acting on the recommendation of Moore's attorneythe same attorney who is now challenging the very sentence he recommended. A defendant cannot invite jurisdictional error; however, he can, by his actions, waive his right to be free from double jeopardy. Bradley v. State, 925 So.2d 232, 241 (Ala.2005). The record in this case shows that Moore received the very sentence his attorney asked of the trial court but which he now claims was error. That Moore was only ordered to spend 90 days in jail for his convictions appears to have been brought about in consideration of the fact that the court expected Moore to pay his past-due child-support obligation.
*157 For the reasons set forth above, I would reverse Moore's sentence and remand this cause, directing the trial court to resentence Moore without consideration of his child-support arrearage. Therefore, I must respectfully dissent from the majority opinion insofar as it affirms Moore's sentence.
NOTES
[1] Rule 803(4), Fed.R.Evid., excludes from the hearsay rule: "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonable pertinent to diagnosis or treatment."
[2] The court stated: "I'm not going to try to calculate the child support, but I am going to put in my order of probation that the child support be brought current within six months." (R. 35-36.)
[3] Misdemeanors may also be subject to fines of any amount not exceeding double the pecuniary gain to the defendant or loss to the victim caused by the commission of the offense. § 13A-5-12(a)(4). A court may conduct a hearing on the amount of such loss to the victim, which, in this case, were the medical bills Kelly accrued as a result of Moore's assault upon her.
[4] Further, we note that Act No. 388, Alabama Acts 1976, § 1 (amending § 6-118 of the Unified Courts Act), codified at § 12-17-70, Ala. Code 1975, authorizes a domestic-relations division for all circuits of this state. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600691/ | 1 So.3d 291 (2009)
EDEN ISLES CONDOMINIUM ASSOCIATION, INC., Appellant,
v.
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATIONS, DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES, Appellee.
No. 3D07-2022.
District Court of Appeal of Florida, Third District.
January 14, 2009.
Leonardo G. Renaud, Miami Lakes, for appellant.
Patricia Nelson, for appellee.
Before RAMIREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
RAMIREZ, J.
This is an appeal from a final order issued by the Department of Business and Professional Regulations, Division of Florida Land Sales, Condominiums, and Mobile Homes which ordered appellant Eden Isles Condominium Association, Inc. to cease and desist from any further violations of Chapter 718, Florida Statutes (2005), and imposed an administrative penalty of $5,000. Because we conclude that the Division erred in imposing such a penalty, we reverse.
Eden Isles comprises seven identical, four-story buildings, containing fifty two units each. All units are laid out according to one of three different floor plans. The buildings are differentiated by a letter from A through G. Building G was the last one to be built. For years, Eden Isles' office staff and board of directors received complaints regarding the inequity of the assessment structure, specifically, the fact that equally sized units were required to pay differing assessment amounts. In 2004, Eden Isles' board held a meeting to address the inequities in assessments. At its meeting, the board attempted to establish greater fairness by requiring that all similarly situated unit owners be assessed *292 equally for common expenses. They used the percentages assigned to the newest structure, Building G, which percentage more accurately correlated to the size of each unit. This resulted in approximately half the unit owners paying more and about half paying less. For example, Unit 100 of Building A paid $2.31 more per month, while Unit 101 of Building A paid $3.31 less. Thus, the board felt that for the year 2005, Eden Isles would be assessing similarly situated unit owners equally.
The record is unclear as to the timing, but at some point, the board was made aware of an amendment to the Declaration of Condominium prescribing each unit's share of the common expenses. There was no evidence presented as to when this amendment took effect, but it is undisputed that the amendment established a schedule of percentages for each building that resulted in similarly situated owners paying a disproportionate share of the common expenses. The pertinent provision was amended as follows:
(1) Percentage of interest in the common elements for each apartment unit is shown above.
(2) Common Surplus. Each condominium apartment shall be entitled to an equal share a share in the common surplus in the same percentage as its interest in the common elements.
(3) Common Expenses. Each condominium apartment shall bear an equal share in the common expenses other than rent due for use of the community facilities its share of the common expenses in the same percentage as its interest in the common elements.
To discover the percentages, the amendment contained two pages of columns, with one column detailing the unit number and a row describing Part 1 through 7 and another row the letters A through G in parenthesis. Next to the unit numbers are apparently random letters of A through C, with some units displaying A* and a note at the bottom of the page explaining that the A* indicated that type B in Part 1 is type A.
One of the unit owners filed a complaint with the Division alleging that Eden Isles failed to assess unit owners for common expenses pursuant to the Association's Declaration of Condominium as amended. In response, the board decided to revert back to the original assessment percentages, beginning in 2006. It also offered the owners a refund if they had overpaid their individual assessment, but no one requested the return of any difference in payment. The Division, however, refused to accept "yes" for an answer and proceeded undeterred with its investigation and, on February 3, 2006, issued a Notice to Show Cause to the Association to refute the charge that in 2005 it assessed unit owners for common expenses at rates which differed from those set out in its Declaration of Condominium, in violation of section 718.115(2), Florida Statutes (2005).
The Administrative Law Judge, John G. Van Laningham, conducted a hearing over two days where not a single complainant appeared. Patrick Flynn testified for the Division. He was cross-examined regarding the amendment and the percentages assigned to each unit as follows:
Q. Do you see at the bottom where it says in parentheses, note: A, star, indicates that type B in part one is type A, and it has close parentheses?
A. Which page are you referencing? Is it the first page?
Q. It [is] page 2.
A. Okay. Yeah. Note okay.
Q. Do you know what that means?
*293 A. No. I mean without you know, this is the first time I have looked at them. No, I don't.
In a detailed nineteen-page recommended order, the ALJ concluded that, because the imposition of a fine was punitive in nature, the Division had the burden of proving the violation by clear and convincing evidence, citing to Department of Banking & Finance Division of Securities & Investor Protection v. Osborne Stern & Co., 670 So.2d 932, 935 (Fla.1996). The ALJ found that the language in the amendment was ambiguous and recommended that the Division rescind its Notice to Show Cause and forgive the Association from paying a fine. The ALJ then cited to Peck Plaza Condominium v. Division of Florida Land Sales & Condominiums, Department of Business Regulation, 371 So.2d 152 (Fla. 1st DCA 1979), which held that Florida's condominium law did not grant to the Division the authority to interpret and then to enforce its interpretation of the provisions of a condominium contract that were ambiguous. "Jurisdiction to interpret such contracts is, under our system, vested solely in the judiciary." Id. at 154. See also Lennar Homes, Inc. v. Dep't of Bus. & Prof'l Regulation, Div. of Fla. Land Sales, Condos. & Mobile Homes, 888 So.2d 50, 54-55 (Fla. 1st DCA 2004) ("In the case before us, the Division went beyond applying the condominium statutes to Lennar's contract and ruled that the contract language requiring arbitration was void as against public policy. We know of no statute which confers authority on the Division to declare a party's contract void. The Division may not interpret a party's contract and then enforce its interpretation on the parties.").
With the obstinacy of Captain Ahab in search of Moby Dick, the Division filed numerous exceptions to the judge's conclusions. First, it does not dispute the fact that its interpretation of the amendment to the Declaration creates an inequitable scheme for the assessment of dues, nor the board's conclusion that using the percentages assigned to Building G more accurately corresponded to the size of each unit in all seven buildings. Second, the Division has never attempted to explain the meaning of all the columns and rows contained in the amendment. Third, the Division has never disputed the fact that the board's interpretation of the amendment created a more equitable system on which to base the assessments. Lastly, it is undisputed that the board voted to change its billing system at an open meeting with unit owners, with their input.
Nevertheless, in a twelve-page order, the Division concluded that it was "authorized to impose a Category 2 penalty of $5,000 for this major violation under Florida Administrative Code Rule 61B-21.003(7)(b) and section 718.501(1)(d)4, Florida Statutes."[1] This administrative rule considers violations to be major according to their potential for consumer harm. The order does not explain what consumer was harmed in a proceeding where no complainant bothered to appear at the hearing and where the board's offer to refund any excess payments went unanswered.
Furthermore, the Division has not cited any authority for penalizing an association for disagreeing with its interpretation of language contained in a condominium document. In Grippe v. Florida Department of Business & Professional Regulation, Division of Florida Land Sales, Condominiums, & Mobile Homes, 729 So.2d 459 (Fla. 4th DCA 1999), the court affirmed the Division's refusal to interpret certain *294 language contained in the condominium association's declaration. "The Division correctly found it lacked authority to interpret ambiguous provisions of a condominium contract.... Grippe's relief, if any, lies either in the courts, or perhaps in mandatory dispute resolution under the provisions of Chapter 718, Florida Statutes." Id. (citations omitted). We fail to see how the board's attempt to promote equality constituted a "major violation" of any statute or rule that warrants the Division's protection from potential consumer harm. Because the Division is enforcing statutes that are penal in nature, they must be strictly construed. See Colbert v. Dep't of Health, 890 So.2d 1165, 1166 (Fla. 1st DCA 2004).
We therefore reverse the final order of the Division and remand with instructions that the Administrative Law Judge's recommended order be adopted as the final order.
Reversed and remanded with instructions.
ROTHENBERG, J., concurs.
SCHWARTZ, Senior Judge (dissenting).
I believe the Division got it exactly right in its "interpretation" of the unambiguous provisions of the condominium documents in question. As its answer brief correctly states:
The amendment at issue establishes specific percentages each unit in all seven buildings must contribute toward payment of common expenses. Even if units are identical in size, the amendment establishes varying percentages to be paid by the units. The changes to the text of the declaration made by the amendment make clear that similarly situated units were not intended to be treated equally by the amendment.
(1) Percentage of interest in the common elements for each apartment unit is shown above.
(2) Common Surplus. Each condominium apartment shall be entitled to an equal share a share in the common surplus in the same percentage as its interest in the common elements.
(3) Common Expenses. Each condominium apartment shall bear an equal share in the common expenses other than rent due for use of the community facilities its share of the common expenses in the same percentage as its interest in the common elements.
The amendment specifically and intentionally removed any provision for assessing common expenses equally on a per unit basis and instead required that assessments be paid according to the percentages identified in the percentage of interest table for each individual unit. The percentage of interest table clearly identifies each individual unit in Appellant's multicondominium and each unit's proportionate share of the assessment burden. As noted by the Division in its Final Order, "it would be difficult to find a document that more clearly identifies each unit's percentage share of the common expenses."
NOTES
[1] Section 718.501(1)(d)4, provides for the appointment of a receiver or conservator. Absent from the statute is any reference to a monetary penalty. The Division must have meant section 718.501(1)(d)6, Florida Statutes (2005). | 01-03-2023 | 10-30-2013 |
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<TITLE>CV6-154.JOHNSON </TITLE>
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
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<P><STRONG><CENTER>NO. 03-96-00154-CV</CENTER>
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<P><STRONG><CENTER>Jay Lewis Johnson and Brenda Rager Johnson, Appellants</CENTER>
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<P><STRONG><CENTER>v.</CENTER>
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<P><STRONG><CENTER>General Electric Mortgage Insurance Corporation, Appellee</CENTER>
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<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL</CENTER>
DISTRICT</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>NO. 93-055-C368, HONORABLE BURT CARNES, JUDGE PRESIDING</CENTER>
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<P><SPAN STYLE="font-family: CG Times"><STRONG>PER CURIAM</STRONG></SPAN></P>
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<P><SPAN STYLE="font-family: CG Times"> The parties have filed a joint motion to dismiss the appeal as moot. The motion is granted.
Tex. R. App. P. 59(a)(1)(A). </SPAN></P>
<P><SPAN STYLE="font-family: CG Times"> The appeal is dismissed as moot.</SPAN></P>
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<P><SPAN STYLE="font-family: CG Times">Before Justices Powers, Aboussie and Jones</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Appeal Dismissed as Moot on Joint Motion</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Filed: December 5, 1996</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Do Not Publish</SPAN></P>
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</HTML> | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1922219/ | 104 N.W.2d 264 (1960)
170 Neb. 741
Emll C. BLOMQUIST and Orpha P. Blomquist, husband and wife, as joint tenants with rights of survivorship, Appellees,
v.
BOARD OF EDUCATIONAL LANDS & FUNDS of the State of Nebraska, Appellant.
No. 34780.
Supreme Court of Nebraska.
July 8, 1960.
*265 C. S. Beck, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., for appellant.
Ginsburg, Rosenberg & Ginsburg, Norman Krivosha, Lincoln, for appellees.
Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
YEAGER, Justice.
This is an action by Emil C. Blomquist and Orpha P. Blomquist, husband and wife, as joint tenants under a lease of Section 36, Township 28, Range 23, in Brown County, Nebraska, plaintiffs and appellees, against the Board of Educational Lands and Funds of the State of Nebraska, an agency and department of the State of Nebraska having charge of all school lands owned by the state or land, title to which may vest in the state, and having authority to adopt rules for that purpose and to lease such lands, defendant and appellant. The purpose of the action is to have determined the rights and interest of the parties under the lease; to have it adjudged that the plaintiffs have the right to remove or dispose of trees on the land; to have it determined that on the termination of the lease the trees remaining on the land shall be appraised, the value determined, and the value thereof paid to plaintiffs; to have the defendant enjoined from claiming any title or interest in the trees; and, on the negotiation of a new lease, to have plaintiffs recognized as the owners of the trees.
As ground for the relief sought the plaintiffs, to the extent necessary to state here, pleaded that they had been tenants *266 on the land under lease from the defendant since 1934; that between 1941 and 1944 they planted on the land 20 acres of trees which consisted of cedar, pine, ash, Chinese elm, hackberry, cottonwood, and plum for their general use, for shelter and posts, and for possible commercial purposes; that the trees were fully grown in the summer of 1958; that they had a market value of more than $6,000 and that they increased the value of the real estate; that the lease of plaintiffs expired on January 1, 1959; that in order to protect the interest in the trees which the plaintiffs claimed under the provisions of section 72-240.06, R.R.S.1943, it became necessary for them to pay to the defendant as rental $3,550 for a renewal lease, which otherwise they would not have been required to pay; that the lease so procured was for 12 years from January 1, 1959; that the trees planted by the plaintiffs are their property; and that the provision under which they make their claim for the relief prayed is the following from section 72-240.06, R.R.S. 1943: "Improvements to be included in such appraisement shall be all buildings, fencing, wells, windmills, pumps, tanks, irrigation improvements, dams, drainage ditches, conservation terraces, trees, plowing for future crops, and alfalfa or other crops growing thereon."
To the petition of plaintiffs the defendant filed a demurrer. The ground of the demurrer was that the petition did not state facts sufficient to constitute a cause of action in that the portion of section 72-240.06, R.R.S.1943, relating to trees is unconstitutional and void as an attempt to bestow a special benefit upon persons holding school land leases at a certain time at the expense of the school land trust.
The demurrer was overruled, whereupon the defendant elected to stand thereon and refused to plead further. A judgment was thereupon rendered granting the relief prayed for in the petition of the plaintiffs. From this judgment the defendant has appealed.
As has been pointed out in what has been said the claim of plaintiffs is based upon a claimed right which they contend flows from section 72-240.06, R.R.S.1943, coupled with acts performed between the years 1941 and 1944. As also pointed out the defendant contends that the provision on which the plaintiffs rely is unconstitutional and void. The particular provisions from which this controversy stems are as follows: "All authorized improvements on school land leases shall become the property of new lessees in all instances, and payment shall be made to the old lessees as herein provided. * * * If the parties are unable to agree as to the value of all the improvements on the land, such improvements shall be appraised by a board of three appraisers * * *. Improvements to be included in such appraisement shall be all buildings, fencing, wells, windmills, pumps, tanks, irrigation improvements, dams, drainage ditches, conservation terraces, trees, plowing for future crops, and alfalfa or other crops growing thereon."
It becomes necessary however before entering upon a discussion of these questions to consider pertinent, perhaps controlling, factors in the determination of this case without reaching the questions which have been presented by the pleadings, the judgment, or the briefs of the parties on appeal. The matters to which reference is here made are the origin and history back of section 72-240.06, R.R.S.1943, the time when the acts of plaintiffs were performed, and the legal significance of the planting of trees upon the land.
It is to be observed that the first sentence of the section of the statute which has become the center of this controversy makes the subject involved "all authorized improvements on school land leases." The statute then declares that the ownership of the authorized improvements shall pass to the new tenant in case of the transfer of the lease. Conditions of transfer are prescribed but a statement of them is not required herein. It should be said here however that the transfer contemplated is not *267 to be made by the defendant, but from an old to a new lessee, on terms and conditions imposed by the statute.
It becomes important next to observe that the authorized improvements designated in the statute are "buildings, fencing, wells, windmills, pumps, tanks, irrigation improvements, dams, drainage ditches, conservation terraces, trees, plowing for future crops, and alfalfa or other crops growing thereon." Of special significance is the fact that in the present statute trees are within the classification.
In varying terminology but in a single sense the statutes, from a time long prior to the date of the commencement of the first tenancy of plaintiffs to the present time, contained an enumeration of the improvements to which title passed, under stated restrictions, from an old to a new lessee. For convenience this history will start with section 72-218, Comp.St.1929, which was prior to the commencement of the first tenancy, and follow through with Laws 1935, c. 163, § 11, p. 604; § 72-240, R.S.1943; Laws 1947, c. 235, § 7(7) p. 750; Laws 1953, c. 255, § 1, p. 862; and Laws 1957, c. 303, § 1, p. 1107 which is now section 72-240.06, R.R.S.1943.
It was not until the adoption of the act of 1953 that "trees" were included in the enumeration of improvements which were to pass from the old to the new lessee. This act of 1953 was declared unconstitutional in Watkins v. Dodson, 159 Neb. 745, 68 N.W.2d 508. In that case it was said: "An unconstitutional statute is a nullity, is void from its enactment, and is incapable of creating any rights or obligations."
As indicated the present section 72-240.06, R.R.S.1943, was enacted in 1957. For the first time, therefore, in that year there was a statutory provision on its face valid enumerating trees as improvements and providing for their transfer from an old to a new lessee. This was 13 years after completion of the planting of trees by the plaintiffs.
It is further noted that in the rules of defendant "trees" were not enumerated as improvements passing with the change of lessees until December 8, 1958, when rule 2 of rules relating to improvements was filed with the Secretary of State.
It becomes clear from this history that regardless of the pleadings and the presentations by the parties in their briefs that the status of these trees is essential to a proper determination of whether or not the plaintiffs are entitled to any of the relief for which they pray in their petition and which they were awarded by the judgment of the district court. If they have no ownership in the trees, this court is not called upon to pass in this case upon the constitutionality of section 72-240.06, R.R. S.1943.
Without any apparent dispute it appears that the trees in question were improvements of a permanent character made on this real estate and in the very nature of things attached thereto. They were placed on the land, and it is not pleaded that they were so placed with the consent of the defendant. Under the general rule as set forth in 27 Am.Jur., Improvements, § 3, p. 261, as follows, they became a part of the realty and title thereto vested in the State of Nebraska as trustee of the school lands of the state from the date of planting: "As a general rule, improvements of a permanent character, made on real estate and attached thereto without the consent of the owner of the fee, by one having no title or interest, become a part of the realty and vest in the owner of the fee as his own property * * *." See, also, Friedlander v. Ryder, 30 Neb. 783, 47 N.W. 83, 9 L.R.A. 700; Frost v. Schinkel, 121 Neb. 784, 238 N.W. 659, 77 A.L.R. 1381; Watson Bros. Realty Co. v. County of Douglas, 149 Neb. 799, 32 N.W.2d 763; Nilson Bros. v. Kahn, 314 Ill. 275, 145 N.E. 340; Reese v. Jared, 15 Ind. 142, 77 Am.Dec. 88; Graham v. Connersville & N. C. J. R. R. Co., 36 Ind. 463, 10 Am.Rep. 56; Atchison, T. & S. F. R. R. Co. v. Morgan, 42 Kan. 23, 21 P. 809, 4 L.R.A. 284, 16 Am. St. Rep. 471; *268 Kingsley v. McFarland, 82 Me. 231, 19 A. 442, 17 Am. St. Rep. 473; Peirce v. Goddard, 39 Mass. 559, 33 Am.Dec. 764; Butler v. Page, 48 Mass. 40, 39 Am.Dec. 757; Pomeroy, Wilson & Butler v. Lambeth, 36 N.C. 65, 36 Am.Dec. 33; Jones v. Shufflin, 45 W.Va. 729, 31 S.E. 975, 72 Am. St. Rep. 848.
The general rule that improvements which become a part of the real estate may not be removed and do not become the property of the lessee is applicable in the absence of agreement, express or implied, or a statute indicating otherwise. See 51 C.J.S. Landlord and Tenant § 399(a), p. 1141.
It is noted that in Reese v. Jared, supra, is contained a pertinent declaration that trees are improvements, and lumber while in a tree is real estate. Nothing has been found to indicate that they shall be treated otherwise in the absence of statute or agreement.
The petition is not predicated on an agreement when or after the plaintiffs became lessees of this land, nor on a statute which directly or by reasonable inference permits a removal of these trees. It is true that a statute does indicate that movable improvements are the property of the lessee. Section 72-238, R.R.S.1943. See, also, State v. Platte Valley Public Power & Irr. Dist., 147 Neb. 289, 23 N.W.2d 300, 307, 166 A.L.R. 1196. As is made clear trees growing on land are not movable improvements. They are, as pointed out, a part of the land. The petition is predicated in the light of the history set forth herein, on a mere leasehold or leaseholds containing no reference to agreement with regard to trees, and without any statute which at the time of planting directly or by reasonable inference gave to the plaintiffs an interest in trees. As pointed out planting ended in 1944. Thus since there was no authority upon which to base a claim for these trees as improvements subject to removal, the judgment of the district court was erroneous.
If it should be contended that the present section 72-240.06, R.R.S.1943, has the effect of granting retroactively ownership or interest in these trees it becomes difficult to see how the contention could be sustained. These trees became and are a part of the fee and have been since 1944. This court said in State v. Platte Valley Public Power & Irr. Dist., supra: "The board, under the leasing provision of the statute, is without authority to sell, directly or in effect, a part of the fee."
This conclusion necessitates a rejection of the pleaded cause of action and a dismissal thereof without passing upon the constitutionality of section 72-240.06, R.R.S.1943, since nothing is before the court for decision which depends upon its constitutionality. This conclusion conforms to the following which was said in Jessen v. Blackard, 160 Neb. 557, 71 N.W.2d 100, 104, concerning the duty of the court when a pleaded issue is not on any true basis before the court for consideration: "Under these authorities it is clear that the court has a duty of its own to perform. It may not properly grant relief based upon a statute which is nonexistent or one which has become nonexistent by reason of judicial declaration of unconstitutionality by this court whether the question has been raised by the parties or not." This statement refers to declaration of unconstitutionality as a basis for the pronouncement but of course it has application in any situation where it becomes apparent that the pleaded issue is not before the court for determination.
The judgment of the district court is reversed and the cause dismissed.
Reversed and dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922225/ | 104 N.W.2d 667 (1960)
Carl J. REITH, Executor of the Estate of Edward Carl Berg, Deceased, Appellant,
v.
COUNTY OF MOUNTRAIL and State of North Dakota, Respondents.
No. 7894.
Supreme Court of North Dakota.
August 6, 1960.
*668 Lyons & Beauclair, Valley City, for Estate of Edward Carl Berg, Decd., appellant.
Leslie R. Burgum, Atty. Gen., Dale H. Jensen, Asst. Atty. Gen., and Roger A. McKinnon, Bismarck, for respondents.
MORRIS, Judge.
On May 19, 1922 Edward Carl Berg, now deceased, made an application for the admission to the Grafton State School of his son Clifford Berg. The son was admitted to the school on August 11, 1922, where he remains. Mountrail County was billed for the care of Clifford Berg.
The father died in September 1957 and his estate is now in the course of probate in the County Court of Barnes County. Notice to creditors was published in May 1958 pursuant to the provisions of Section 30-1802 1957 Supplement to NDRC 1943. The last date for filing claims prescribed by this notice was August 1, 1958. The date for adjusting claims was set for August 15, 1958.
On August 18, 1958 the county auditor of Mountrail County filed a claim on behalf of that county against the estate of Edward Carl Berg for the care of Clifford Berg at the Grafton State School from August 11, 1922 to June 30, 1958 inclusive in the sum of $7,146.50. On August 23, 1958 the county auditor filed another claim for the additional amount of $2,760.59 as the State's share of the care of Clifford Berg for the quarter ending September 30, 1941 to the quarter ending June 30, 1958. The county court heard and denied both of these claims on the ground that they had been filed after the time prescribed by the notice to creditors had expired and were therefore barred under the provisions of Section 30-1804 NDRC 1943. The County of Mountrail appealed to the District Court of Barnes County and was joined therein by the State of North Dakota as an interested party. Section 30-1811 NDRC 1943. The district court, on appeal from the county court's order denying the allowance of these claims, reversed that order and caused judgment to be entered directing *669 that the claims be allowed and paid. The executor of the estate appeals from that judgment.
We first address our attention to the nature of the liability represented by these claims. The state school is maintained for the relief and instruction of the feebleminded and for the care and custody of the epileptic and idiotic of the state. Section 25-0402 NDRC 1943. The expense of the care, board and treatment of each inmate is a charge upon the county from which the inmate is sent. Section 25-0409 1957 Supplement NDRC 1943.
Section 25-0822 NDRC 1943 provides that:
"The person legally responsible for the support of any patient at the state school shall pay to the county treasurer monthly, for the use of the county or state, the amount properly chargeable for the care of such patient at such institution. The county treasurer shall retain for the county such amounts as may have been paid by the county on account of such care and shall remit the balance to the state treasurer. If the person liable to pay such amount fails or neglects to make payment upon demand by the county auditor, the board of county commissioners shall direct the state's attorney to bring suit for the recovery of such payments as are delinquent."
Section 25-0826 1957 Supplement to NDRC 1943, enacted as Section 21, Chapter 196, Session Laws N.D.1957, provides that:
"The county auditor is hereby authorized to collect the expenses for the treatment and maintenance of the county's patients at the state hospital, state school, or the state sanatorium, incurred by the county or the state, including the amount advanced by the state from the institutional support funds. Such expenses may be collected from such patients after they have been discharged from such institutions as cured, or from their estates if they are dead.
"The full and actual costs of the county and state for care and treatment of patients hospitalized at the state hospital shall be collected monthly by the county auditor from the patient or his estate or from relatives responsible by law for such patient's support in all instances where such patient or responsible relatives are financially able to pay. * * * If the person liable for the payment of costs as provided herein shall fail or refuse to pay such amount, the county auditor shall inform the county mental health board, and it shall direct the state's attorney to bring suit for the recovery of delinquent payments."
Section 14-0910 NDRC 1943 makes it the duty of the father of a poor person who is unable to maintain himself by work to maintain such person to the extent of the father's ability.
Under the provisions of Section 25-0823 NDRC 1943 any person legally responsible for the support of a patient at the state school who is unable to pay for the care and support of the patient may apply to the county judge of the county from which the patient was admitted for a certificate to that effect. It does not appear that Edward Carl Berg during his lifetime ever secured such a certificate. On the other hand it does appear that the value of his estate is approximately $31,000.
When the father applied for the admittance of his son he presumably knew that the law made him responsible for the care and maintenance of the son under the provisions of Section 14-0910 NDRC 1943 if the son was unable to maintain himself. Bismarck Hospital v. Harris, 68 N.D. 374, 280 N.W. 423, 116 A.L.R. 1274. The father having the legal duty to care for and support his son, by his application secured the services of the state school to perform *670 that duty for him. When the school furnished the care and maintenance which admission to the school entailed, the father's obligation to pay for those services was more than statutory. His application and the admission of his son pursuant thereto gave rise to a contract implied in fact which is the basis for the claims that are now filed against his estate. Whether claims such as those here presented may be said to arise upon a contract implied in law, in the absence of an application by the father, we find unnecessary to determine.
Section 30-1804 NDRC 1943 provides:
"All claims against the estate of a decedent arising upon contract, whether due, not due, or contingent, must be presented within the time limited in the notice to creditors and any claim not so presented is barred forever."
Under stipulated facts it is clear that the claims were not presented within the time prescribed in the notice to creditors. They are barred if they are claims "arising upon contract." The care and maintenance of Clifford Berg were furnished by the state school at the request of his father who was legally bound to support him. The fact that Section 25-0822 provided for the father's liability and its extent does not destroy the contractual nature of the father's obligation. Its statutory and contractual attributes do not conflict and may exist side by side. Hays v. Bank of America National Trust and Savings Association, 71 Cal. App. 2d 301, 162 P.2d 679. See also Carr v. Anderson, 154 Minn. 162, 191 N.W. 407, 26 A.L.R. 557; 17 C.J.S. Contracts § 6. In Baird v. McMillan, 53 N.D. 257, 205 N.W. 682, 41 A.L.R. 177, this court treated the statutory superadded liability of the holder of stock in a state bank as a claim against the estate of a deceased stockholder arising upon a contract but denied the application of the bar on the ground that there was in existence no legal person capable of presenting the claim within the time prescribed in the notice to creditors. We reach the conclusion that the claims presented by the county auditor of Mountrail County are claims arising upon contract within the meaning of Section 30-1804 NDRC 1943, that they were not presented within the time limited in the notice to creditors published pursuant to the provisions of Section 30-1802 1957 Supplement to NDRC 1943, and are therefore barred forever.
California statutes pertaining to the presentation, filing and payment of claims against estates of deceased persons are comparable to ours. The respondents, Mountrail County and State of North Dakota, cite two California cases in support of the contention that their claims do not arise upon contract but are of purely statutory origin. People v. Hochwender, 20 Cal. 2d 181, 124 P.2d 823, involves a claim against the estate of a deceased for delinquent sale taxes, interest and penalties. It was there held that taxes are not debts due by contract and that the relationship between the sovereign and taxpayer is not founded on contract and does not create any contractual rights. For that reason it was held that the action to recover delinquent sale taxes was not barred by the failure to file a claim within the time prescribed in the notice to creditors.
Department of Social Welfare of State of California v. Stauffer, 56 Cal. App. 2d 699, 133 P.2d 692, 693, involved an action to recover from the estate of a deceased recipient of old age security payments, who possessed property or income in excess of the amount allowed by law and thus was not entitled to receive such payments under a statute providing that:
"`If, on the death of a recipient of aid under this chapter, it is found that he was possessed of property or income in excess of the amount allowed under the provisions of this chapter and that he has not disclosed the same to the board of supervisors, double the amount of the aid paid him in excess of that to which he was legally entitled may be recovered by the Department of *671 Social Welfare as a preferred claim from his estate * * *."
The opinion says:
"The right of the state, upon the death of a recipient of aid under the Old Age Security Law, to recover because of the recipient's failure to truthfully disclose in his application for aid the possession of property or income in excess of a given amount is penal in its nature."
The court reached the logical conclusion that the claim was for a penalty of statutory origin and cannot be reasonably said to be based upon express or implied contract. It also pointed out that the penalty against the estate did not come into existence until after the death of the deceased. We do not question the determination of the California courts in either of these cases but they are readily distinguishable from the case before us in which the deceased made an application for the care and maintenance of his son which was the origin of his obligation to reimburse the state school. That obligation is contractual in its nature and involves neither a tax nor a penalty.
It has been further suggested that the claim filed by Mountrail County on behalf of the State and the claim filed by Mountrail County on its own behalf are not subject to the bar provided in Section 30-1804 NDRC 1943 because the claims arise from acts of the sovereign state in its governmental capacity and its agency and subdivision, the county. The policy of the State with respect to the availability of the statute of limitations against it is set forth in Section 28-0123 NDRC 1943 as follows:
"The limitations prescribed in this chapter shall apply to actions brought in the name of the state, or for its benefit, in the same manner as to actions by private parties."
In Rosedale School District Number 5 v. Towner County, 56 N.D. 41, 216 N.W. 212, this court determined that counties and school districts are amenable to statutes of limitation. While Section 30-1804 is a statute of nonclaim rather than a statute of limitation and does not fall directly within the application of Section 28-0123 quoted above, its very nature commends its application to claims of the state. As a statute of nonclaim it goes to the existence of the right of action rather than a limitation as to time within which an action may be brought. That difference is pointed out in Mann v. Redmon, 27 N.D. 346, 145 N.W. 1031, 1033, in these words:
"Counsel persists in contending that we are dealing with an ordinary statute of limitation of actions. We are not. That was set at rest in the former appeal. (23 N.D. 508, 137 N.W. 478). The time within which a suit must ordinarily be brought or be maintained, subject to a defense that the action is barred by facts showing the action to be limited by time, as under the ordinary statutes of limitation of actions, is one thing. There, the right of action, the claim, is barred by withholding the remedy, the action for enforcement. Here, the claim itself does not exist against the estate, it having ceased to exist as such a claim at the expiration of the statutory period after rejection, unless it is kept alive by suit. In the former case, the limitation statute creates a limitation in repose; in the latter, a limitation in bar."
In Washington and California nonclaim statutes similar to ours have been held to embrace the state within the scope of the bar. State v. Evans, 143 Wash. 449, 255 P. 1035, 53 A.L.R. 564; People v. Osgood, 104 Cal. App. 133, 285 P. 753. It should be noted that in Washington the general statute of limitations does not run against the state, which is contrary to the rule in North Dakota.
In Donnally v. Montgomery County Welfare Board, 200 Md. 534, 92 A.2d 354, 34 A.L.R. 2d 996, it is held that nonclaim *672 statutes are not subject to the rule that a statute of limitations does not run against a state in its exercise of governmental powers unless the statute expressly so provides. In pointing out the difference between the statutes of limitation and nonclaim statutes, the court, in Bahr v. Zahm, 219 Ind. 297, 37 N.E.2d 942, 944, said:
"It seems to us that the difference between the statutes here involved is basic. The non-claim statute relates to the exercise of a right, while the statute relieving the state from the operation of statutes of limitation pertains only to remedies. The non-claim statute imposes a condition precedent to the enforcement of a right of action, while statutes of limitation create defenses that must be pleaded and may be waived. We do not know of any statute or rule of law that relieves the state of Indiana from the obligation to perform conditions precedent upon which the enforcement of a right of action is made to depend."
That there is a divergence of authority on the question clearly appears from an annotation found in 34 A.L.R. 2d 1003. However, in this state where the legislature has by Section 28-0123 NDRC 1943 made statutes of limitation applicable to actions brought by the state or for its benefit, we have no hesitancy in holding that nonclaim statutes are likewise applicable.
Our determination is that the claims of Mountrail County in behalf of itself and in behalf of the State of North Dakota are claims arising upon contract, that they were not exhibited to the county court within the time prescribed in the notice to creditors published pursuant to Section 30-1802, 1957 Supplement to NDRC 1943 and are therefore barred forever. The district court erred in causing judgment to be entered directing the allowance and payment of these claims. That judgment is therefore reversed.
SATHRE, C. J., and BURKE, TEIGEN and STRUTZ, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922232/ | 258 Minn. 491 (1960)
104 N.W. (2d) 851
STATE EX REL. RAYBURN BURRIS AND ANOTHER
v.
DOROTHY HILLER AND ANOTHER.
STATE EX REL. JOANNE HILLER TODD
v.
SAME.
Nos. 38,044, 38,045.
Supreme Court of Minnesota.
July 22, 1960.
*492 Leo J. Lauerman, Gordon Rosenmeier, and John E. Simonett, for appellants.
Quarnstrom & Doering and Meehl & Wiltrout, for respondents in first appeal.
Thomas Welch, for respondent in second appeal.
NELSON, JUSTICE.
A writ of habeas corpus was issued by the district court upon the petition of Rayburn Burris and Myrtle Burris challenging the right of Wray Hiller, Jr., and his wife, Dorothy Hiller, to the custody of John Bradley Hiller, born December 6, 1957. After a hearing, the trial court awarded custody to the petitioners who are the maternal grandparents of said minor child. Dorothy Hiller and Wray Hiller, Jr., have appealed to this court where a referee was appointed with directions to take and report to this court the evidence which the parties desired to submit, without findings by the referee as to the facts or the law.
John Bradley Hiller, the subject of this custody proceeding, is the son of John W. Hiller and his wife, Dorothy Burris Hiller (not the same person as the above Dorothy Hiller), the only daughter of Rayburn and Myrtle Burris. Wray Hiller, Jr., is a brother of John W. Hiller who was commonly called Jack Hiller.
Prior to his marriage to Dorothy Burris, Jack Hiller had been married to JoAnne Hiller Todd on June 13, 1948. Jack Hiller and JoAnne Hiller Todd were the parents of two daughters, Wendy Hiller, born July 2, 1949, and Susan Hiller, born August 16, 1951. Jack and JoAnne were divorced on July 14, 1954, and Jack Hiller was awarded custody of the daughters. Thereafter, on March 17, 1956, JoAnne Hiller Todd married Dr. Thomas Todd and in 1956 and again in 1957 she moved for a modification of the divorce decree to obtain the custody of her daughters, both of which motions were denied.
*493 On July 7, 1956, Jack Hiller married Dorothy Burris Hiller. John Bradley Hiller, born December 6, 1957, resided with his parents and half sisters, Wendy Hiller and Susan Hiller, in Marshall, Minnesota, until June 23, 1959. On the latter date Jack Hiller and Dorothy Burris Hiller were killed in an automobile accident, in which accident John Bradley Hiller and Susan Hiller were seriously injured. The three children were all hospitalized at Willmar, Minnesota.
On June 25, 1959, two days after the accident occurred, Wray Hiller, Jr., on advice of counsel, petitioned the Lyon County Probate Court for appointment as special guardian of the three Hiller children. In addition to being appointed special guardian, he also petitioned said probate court for his appointment as guardian of their estates.
The three children were discharged from the Willmar hospital June 27, 1959. Wendy Hiller was taken to the home of Wray Hiller, Jr., but Susan Hiller and John Bradley Hiller were taken to St. Barnabas Hospital in Minneapolis for further treatment. They were discharged from St. Barnabas Hospital on July 9, 1959, and taken to the home of Wray Hiller, Jr., in Wayzata, where the three children resided at the time the proceedings herein were commenced.
Another writ of habeas corpus was issued by the same court on the same date upon the relation of JoAnne Hiller Todd to determine the custody of Wendy Hiller and Susan Hiller. The two proceedings were consolidated for trial, and the custody of the girls was awarded to their natural mother, JoAnne Hiller Todd. Thereafter, on February 20, 1960, the custody of the girls was transferred to JoAnne Hiller Todd, pursuant to the terms of a stipulation made in open court. A part of the stipulation was in the following language:
"There will be no hindrance imposed by JoAnn Todd or Thomas Todd on the Hillers' normal privilege as uncle and aunt to visit the girls and the girls to visit them, but there is and will be a reciprocal responsibility on the part of the Hillers to recognize that JoAnn Todd has the sole responsibility for, and the undivided right of care, custody and control of her children, Wendy Rae Hiller and Susan Adelle Hiller and the Hillers must not be presumptious or unreasonable in insisting on a visit at any time or under any circumstances nor interfere with their mother's authority over them."
*494 The Hillers voluntarily relinquished the two girls to the Todds although they had appealed to this court from the order of the trial court. The aforesaid stipulation was suggested to modify the order of the trial court in the matter of the custody of Wendy and Susan Hiller, transferring their custody to their natural mother, who, it is conceded, became legally entitled thereto at the death of the father.[1]
It was stipulated by counsel before the referee that the record of the trial in the district court, as embodied in the transcript, exhibits, and judgment roll, should be considered by the supreme court as though the witnesses were present and testifying and as though all objections were stated again at the same point in the testimony.
Just prior to the trial in the court below, Rayburn Burris became 67 years old; his wife was then 63. His life expectancy was at the time 11.73 years and his wife's, 14.14 years. It was shown that they had taken physical examinations shortly before the trial to determine their ability to take care of their grandson. These examinations disclosed apparent good health, but it was also shown that Mr. Burris had had heart trouble in 1947 and that Mrs. Burris was, in the fall of 1958, troubled with sciatica and needed doctors' attention at the time. The Burrises are members of the Methodist Church and active in the work of their church. Their home is physically comfortable and near school. They also have a lake home, and they are financially able to undertake the care and custody of a child. They are people of high integrity, honesty, and excellent character, and no doubt they have a feeling of love and affection for John Bradley Hiller. The Hillers do not question any of this.
We think the evidence, including the additional testimony taken before the referee, fairly leads to the conclusion that there is no present *495 ill feeling between the Burrises and the Hillers, unless this litigation provides evidence of it. It appears that the Burrises have visited the Hillers' home frequently while the lawsuits have been pending. Prior to the trial before the referee, when the Hillers went away for a few days on a combined business and pleasure trip, the Burrises had John Bradley Hiller in their home at the Hillers' suggestion. Wray Hiller, Jr., indicates that he would want John Bradley Hiller to have a fine relationship with his maternal grandparents.
The record indicates that John Bradley Hiller, as a result of the accident, suffered compound fractures of the skull, multiple lacerations, and fracture of the maxilla, this requiring the attendance of a doctor at New London after the accident and later of a specialist neurosurgeon, Dr. Buchstein, in Minneapolis.
There has been some suggestion that there was some impropriety on the part of Wray Hiller, Jr., in rushing the matter of obtaining the appointment as special guardian of the persons of the minors and as general guardian of their estates. It is conceded, of course, that there was urgency at the time and a necessity that someone be clothed with the power to make decisions under the circumstances, especially when the three children involved in the accident were in dire need of medical attention. We think the record indicates that there can be no just complaint in regard to the care and attention given the children from and after the time the accident occurred.
The trial court made it clear in its memorandum that in neither of its orders did it intend to reflect upon the capability of the appellants to care for the children. He made it clear that those who were denied custody were fine people, as well as those who were granted custody.
In passing we might make reference to the fact that Wray R. Hiller, Sr., became an intervenor alleging a status of natural guardianship as the paternal grandfather of John Bradley Hiller. Apparently his purpose was to thereby consent to his son's custody. The trial court dismissed his complaint and he has taken no appeal therefrom. It should be noted that the paternal grandparent Hiller was 72 years of age, several years older than either of the Burrises.
The appellants, while citing no Minnesota case holding that a surviving *496 paternal grandfather is the natural guardian of an orphan grandchild as against the maternal grandparents, do cite In re Guardianship of Lehr, 249 Iowa 625, 87 N.W. (2d) 909, for that proposition. In that case the court said that failure of the paternal grandparents to assert rights as natural guardians of their orphaned grandchild was a waiver of their right to custody as against the maternal grandparents, who by the waiver were "established" as natural guardians. Since the complaint in intervention was dismissed below and no appeal has been taken, we do not feel called upon to reach a decision on that issue.
Appellants assert that it is necessary to determine a basic constitutional question, which they state was preserved at the beginning of the trial in the district court and raised again by motion to quash at the beginning of the referee's trial. It is claimed that this directly involves jurisdiction; that it is de novo here. The motion is based upon the difference between the wording of Minn. Const. art. 6, relative to jurisdiction of probate courts, as it was prior to the 1956 amendment and as it is now. The changes we are concerned with are shown by italics:
"Section 1. The judicial power of the state is hereby vested in a supreme court, a district court, a probate court, * * *.
* * * * *
"Sec. 6. The probate court shall have unlimited original jurisdiction in law and equity for * * * all guardianship and incompetency proceedings, * * *."
Appellants contend that by reason of the emphatic assertion of "unlimited original jurisdiction" it was intended and in fact did cause a change so that State ex rel. Gravelle v. Rensch, 230 Minn. 160, 40 N.W. (2d) 881, is no longer the law and that the courts of this state are now bound to give effect to the amended constitutional definition of jurisdiction in cases of this kind. They argue that the new language can hardly be held to be meaningless or inadvertent, and its clear expression is that jurisdiction of guardianship, which includes the guardian's duty of custody, is now solely in the probate court. The *497 Gravelle case remains the controlling case on that issue in this state.
1-2. It has long been the rule in this state, and it is the rule of the great weight of authority, that where custody of a minor child is granted to one parent by a divorce decree, and such parent dies, the right of custody automatically inures to the surviving parent, absent a showing that he is unfit. In the Gravelle case we stated the rule to be (230 Minn. 164, 40 N.W. [2d] 883):
"The guardianship proceedings constitute no impediment to the exercise by the District Court of its equity powers in suits involving the custody of minors."
We have most certainly followed the rule that, in determining who shall have custody as between a parent and a guardian, the controlling consideration is the welfare of the child. We considered these rules in the Gravelle case and said therein that (230 Minn. 165, 40 N.W. [2d] 884):
"While the precise question presented here seems to be one of first impression in this state, we assume it is so because it has never been thought that appointment of a guardian would divest the district court of jurisdiction to determine the right to custody of minor children in an appropriate proceeding."
We see nothing in the wording of Minn. Const. art. 6, as amended, which would constitute an impediment to the exercise by the district court of its equity powers, it being a court of general jurisdiction possessed of far-reaching inherent powers. We can see no logic in a rule, even under the present wording of art. 6, which would ipso facto divest the parent of the right to custody by reason of the appointment of a special guardian of his child's person or of a guardian of both his person and estate. It is clear from the record that the trial court was not concerned with the claim that the amendment of art. 6 divested the district court of jurisdiction in these matters.[2] See cases cited in the Gravelle case in support of the rules therein approved.
Wray Hiller, Jr., is connected with Pillsbury Company in its grain *498 marketing division at an annual salary in excess of $14,000. The family of Wray and Dorothy Hiller includes two boys, Scott, 12, and Rob, 9. Mrs. Hiller was in the past a teacher of English and Mr. and Mrs. Hiller both are university graduates. Their home at Wayzata is comfortable and spacious enough to accommodate John Bradley Hiller should they be granted custody. There is no question about the financial and physical ability of the Hillers to give him a good home.
At the time of the trial below John Bradley Hiller was 21 months old. He has been in the custody of his uncle, Wray Hiller, Jr., and his wife since he was released from the hospital, living there with his half sisters until it was agreed that their custody should be transferred to their mother. The record shows that the Hillers are friendly, cultured people who maintain a Christian home where life is focused on the welfare of the children in it. Wray Hiller, Jr., is now approximately 41 years of age and his wife, Dorothy, 38 years of age. Both like the outdoors. They actively participate in skiing, boating, water skiing, hunting, swimming, fishing, and golf, and the children, to the extent of their abilities, are permitted to take part with them. The relationship between the Wray Hiller children and John Bradley Hiller has been most satisfactory.
Another important fact disclosed by the record in this case is an understanding that apparently existed between Wray Hiller, Jr., and his brother, Jack Hiller. It appears that they were very good friends as well as brothers, and in answer to a question by counsel for petitioners, Wray Hiller, Jr., said:
"* * * as you, yourself, know, my brother and I were very close. It was my brother's wish that if anything should ever happen to him that I was to take care of his children
* * * * *
"It was always his wish and desire that if anything were to happen, that I would care for his children and adopt them. This was a well-understood thing between us and we talked about it many times."
It should be noted here that Jack Hiller's will left his entire estate, valued at about $93,000, in trust for his three children, and that Wray *499 Hiller, Jr., and Northwestern National Bank of Minneapolis are cotrustees.
The testimony taken before the referee would indicate that family animosity engendered in the divorce of JoAnne and Jack Hiller has no present proved foundation; that such did not survive the district court trial; and that at the time of the hearing before the referee the Hillers and the Todds had reached an understanding which has obliterated previous resentments. Visitations have followed back and forth, and the parties have clearly demonstrated that none of the parties want to stand in the way of John Bradley Hiller growing up to know and frequently visit with his grandparents and likewise to know his half sisters by visitations freely arranged between the grandparents and those who are trusted with the custody of these children, be it divided or otherwise.
3. The well-established rule in this state in matters involving custody of minors is that the welfare of the child is the prime consideration in determining the custody. State ex rel. Larson v. Larson, 190 Minn. 489, 252 N.W. 329, 18 Minn. L. Rev. 591. Traditional sentimental considerations are no longer imperative. In re Petition of Hohmann, 255 Minn. 165, 95 N.W. (2d) 643.
4. We are persuaded after carefully considering the record before us that the ages of Dorothy and Wray Hiller, Jr., will give them a distinct advantage in being able to understand and cope with John Bradley Hiller and his problems which they have now experienced from babyhood through his adolescent years to maturity. We think the record warrants the concession that the maternal grandparents will be handicapped by reason of their advanced age in the matter of providing the necessary patience and the continued ability to understand and cope with the problems of a child now only 2 years of age. The probability of their living to rear John Bradley Hiller to maturity is decidedly less than that of the uncle and his wife.
We have carefully taken into account the testimony, before the referee, of the Reverend Harold King, the pastor of the Wayzata Community Church, and that of Dr. Jack Wallinga, a specialist in child psychiatry. These witnesses give evidence of an understanding approach *500 to child psychology and what goes to make up the prime consideration in determining the welfare of the child where the question of custody is to be determined. Both agree, understanding that the maternal grandparents are without question people of integrity, good reputation, financial means, and have the ability to furnish a comfortable home, that the welfare of the child would be very greatly enhanced if he could be put in a home where he has not only the active, alert influence of younger parents, but where he will have the stimulation and the guidance of those who take the place of older brothers. Under the circumstances as they exist in the instant case, the younger set of parents would be more likely to offer continuity of family life, a matter of great importance to a growing child; to furnish the father-son relationship of the normal, healthy, active kind involving doing things together, things that a boy needs to do to grow up in a healthy masculine pattern outdoor activities, sports participation, camping, and that kind of thing. Generally younger parents have more emotional resiliency in handling the problems that children, perhaps particularly boys, often demonstrate in growing up. Added thereto is the fact of the presence of two other children, boys, in the home, which would avoid the child's becoming subject to overprotection and overindulgence, which older people, and especially grandparents, so often are prone to exhibit.
It is not often that there is so little to criticize on the part of those seeking child custody. Nevertheless, age must of necessity become a determining factor in the present case since it is hazardous to predict whether the actual life expectancy may be more or less than that indicated in the tables commonly relied upon. We think the record establishes that the Burrises recognize that, all things being equal, this might justifiably throw the weight of the evidence in favor of the younger appellants who the deceased father had indicated during his lifetime would be his choice to have custody of his child.[3]
As we said in State ex rel. Herniman v. Markson, 187 Minn. 176, 178, 244 N.W. 687:
*501 "The question is whether the welfare of the boy requires that he remain with his grandparents. They are in all respects worthy people in fair circumstances, and they give the boy a good home and indulgent care. He has been with them since he was less than a year old.
"* * * The grandfather is 83 years old and feeble. The grandmother is 75 years old and sprightly for one of her age. They cannot many years longer give him the care which they have gladly furnished him, and the duty will fall upon someone else.
* * * * *
"* * * The grandparents must accept the inevitable. * * *
"All realize that the grandparents' custody must terminate before many years. It is best that the change come now."
Natural parents have the first right to the care and custody of their child, unless the best interests of the child require it to be given into the hands of someone else. In re Guardianship of Maloney, 234 Minn. 1, 48 N.W. (2d) 313, 49 N.W. (2d) 576. A surviving parent should not be divested of that custody unless it appears that the best interests of the child so demand. Kienlen v. Kienlen, 227 Minn. 137, 34 N.W. (2d) 351. Clearly, where, as here, the maternal grandparents seek the custody of their grandchild, their right to his custody must likewise yield to the best interest of the child. See, 14 Dunnell, Dig. (3 ed.) § 7297, and cases therein cited, and 6 Id. § 2800, and cases therein cited.
The trial court has heretofore determined that the surviving parent, JoAnne Hiller Todd, is entitled to the custody of her two minor daughters.
The trial court is directed to modify that order in accordance with the stipulation made before the referee to the effect that JoAnne Hiller Todd and Thomas Todd, her husband, will not change their domicile from Minnesota for a period of 2 years; that said Thomas Todd will not attempt to adopt the two children or either of them until after October 1, 1961; that no petition will be made for said adoption until that date by him; and that there will be no hindrance imposed by the said JoAnne Hiller Todd or Thomas Todd on the appellants' normal privilege as uncle and aunt to visit said children; but that there *502 is and will be a reciprocal responsibility on the part of appellants to recognize that JoAnne Hiller Todd has the sole responsibility for and the undivided right of care, custody, and control of her children and that the appellants must not be presumptuous or unreasonable in insisting on visitation at any time or under any circumstances nor interfere with the mother's authority over said children. As modified, said order is affirmed.
Based upon the record and the report of the referee, we feel impelled to conclude that it will be for the best interests of the child that the uncle, Wray Hiller, Jr., and his wife have the care and custody of John Bradley Hiller. The order of the court below as to the custody of John Bradley Hiller is therefore reversed.
NOTES
[1] The rule of most jurisdictions runs to the effect that, when a divorce decree gives the custody of a child to one of the parents and the parent custodian dies, the so-called right to custody immediately and automatically inures, or accrues or reverts, to the surviving parent. Annotation, 39 A.L.R. (2d) 260; State ex rel. Merritt v. Eldred, 225 Minn. 72, 29 N.W. (2d) 479. The presumption is that the parent is fit and suitable. Kienlen v. Kienlen, 227 Minn. 137, 34 N.W. (2d) 351; State ex rel. Gravelle v. Rensch, 230 Minn. 160, 40 N.W. (2d) 881.
[2] See, M.S.A. 525.56 and 525.591; In re Adoption of Zavasky, 241 Minn. 447, 450, 63 N.W. (2d) 573, 576.
[3] See, In re Guardianship of Carrick, 250 Iowa 1181, 98 N.W. (2d) 315. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922272/ | 104 N.W.2d 681 (1960)
170 Neb. 919
Glenn O. JOURDON, Appellant,
v.
COMMONWEALTH COMPANY, a corporation, Appellee.
No. 34626.
Supreme Court of Nebraska.
August 19, 1960.
E. D. Warnsholz, Lincoln, for appellant.
Ginsburg, Rosenberg & Ginsburg, Norman Krivosha, Lincoln, for appellee.
Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
BOSLAUGH, Justice.
A further consideration of this case after the submission of motions for rehearing has convinced that parts of the syllabus and opinion reported as Jourdon v. Commonwealth Co., 169 Neb. 482, 100 N.W.2d 84, are inapplicable to this case and that the following parts of the syllabus and opinion should be and they are withdrawn:
1. Paragraphs numbered 1 to 5, inclusive, of the syllabus.
2. The part of the opinion as it appears in the official report above cited concerning the first cause of action of the second amended petition of appellant immediately following the quotation from section 8-432, R.R.S.1943, on page 488 of the official report [page 88 of 100 N.W.2d] to and including the first full paragraph near the top of page 494 of the official report [second full paragraph on page 91 of 100 N.W.2d].
There should be and is substituted in lieu of the matter withdrawn as described in paragraph numbered 2 above what is hereafter stated as a part of the opinion concerning the first cause of action of the second amended petition of appellant: The principal of each of the six promissory notes given by appellant to appellee involved and described in the first cause of action of the second amended petition of appellant is for a greater amount than $550. The rate of charges on the unpaid principal balance until maturity of each of the notes was the maximum allowed to be charged by an industrial loan and investment company. Maximum interest charges were made simultaneously on the obligations of appellant to appellee existing at the same time as follows: From April 17, 1954, until June 24, 1954, on notes 1 and 2; *682 from June 24, 1954, until August 3, 1954, on notes 1, 2, and 3; from August 3, 1954, until August 7, 1954, on notes 1, 2, 3, 4, and 5; from August 7, 1954, until November 15, 1954, on notes 3, 4, and 5; and from November 15, 1954, until July 26, 1955, on notes 4 and 6.
The district court found concerning the first cause of action of the second amended petition of appellant that appellee did not induce or permit appellant to become obligated by more than one contract of loan at the same time for the purpose of appellee obtaining a higher rate of charge or interest than would have been permitted if all the obligations of appellant to appellee had been consolidated into one obligation, in violation of the applicable statute; that appellee desired to and did offer to consolidate the obligations of appellant into a single one but appellant requested and insisted that each loan be made separately; that the parties were in agreement on separating the loans appellant had contracted at various times with appellee; that appellee had no lawful intent and purpose interdicted by the applicable statute in connection with any of the loans involved herein and there was no violation of law by appellee; that the loans concerned in this cause were each solicited by appellant for his benefit and advantage and he cannot now complain thereof or take advantage of appellee by reason of acts committed by it at the request of appellant and for his advantage; and that appellee did not exact any charges in excess of those prescribed by section 8-418, R.R.S.1943. The judgment of the trial court was a dismissal of that cause of action of appellant.
The first loan by appellee to appellant was made April 8, 1954, and it was due June 8, 1954. It was paid August 7, 1954. The second loan by appellee to appellant was made April 17, 1954, was due June 17, 1954, and was paid to appellee August 7, 1954. These two loans concerned the automobile business of appellant. The third loan by appellee to appellant was made June 24, 1954. It concerned the nursing home business conducted by appellant. It was due August 24, 1954. Appellee offered evidence that when the third loan was applied for and was being negotiated, it proposed that the previous loans to appellant be consolidated with the third loan appellant had applied for but appellant asserted he wanted to keep the loans separate as the first two loans mentioned were in reference to his automobile business and the third was a part of his nursing home activity. Appellee produced evidence that its transactions with appellant were represented by several loans and separate notes at his specific request and for his special accommodation. This does not explain why appellee had prior to that time taken two separate obligations of appellant each for more than $550 only 10 days apart, each with maximum interest charges, and each of which concerned his automobile business. Appellant testified he did not recall a request by appellee to consolidate the loans made to him and that he did not refuse at any time to make the loans into one obligation.
Appellee says the several loans and a separate note representing each were made at the request and to accommodate appellant and not for the purpose of obtaining a higher rate of charge than would have been lawful if they had represented one obligation. The six notes concerned in the first cause of action each provided for graduated interest rates at the maximum permitted by law. If appellee had desired a proper arrangement it could have provided for 9 percent interest on any note executed by appellant during the time a previous note of his was unpaid. The prohibition of the statute is not that there shall not be more than one loan during any period of time but it is that there shall not be charged 36 percent on the first $50 of unpaid principal and 18 percent on the next $500 of unpaid principal on more than one loan at the same time. Section 8-418, R.R.S.1943. There may be as many contracts of loan at the same time as the parties desire but *683 the several loans when considered together must not violate section 8-419, R.R.S.1943.
Appellee argues that to be a violation of the statute it must be found as a matter of fact that the object of the lender in permitting more than one loan of a single borrower to exist at the same time was to obtain a higher rate of interest than would be lawful if there was but a single obligation. It is true that the statute prohibits an industrial loan and investment company from allowing any borrower to become obligated to it under more than one contract of loan at the same time for the purpose of obtaining a higher rate of interest than would be permitted if all the obligations of the borrower were consolidated into one obligation. A consideration of the acceptance by appellee of six separate obligations of appellant, each providing for maximum interest charges and as many as five of them existing simultaneously, two of which were made in one month, two of which were executed on the same day, and all incurred within a period of less than 9 months, makes it permissible if not inescapable to find that the obligations of the borrower were made in that manner because of the higher rate of interest charged thereon and realized therefrom. The conceded acts of appellee speak more convincingly than its explanation of the reason for the acts. Appellee asserts that the multiple obligations of appellant were induced by him for his sole benefit and by his request, solicitation, and direction to enable him to conveniently carry on his business engagements and activities and not for the advantage of appellee but in opposition to the suggestion and desire of appellee that the obligations be consolidated into one. Appellee argues that simply splitting loans and charging lawful rates on each loan if not done to obtain a higher rate of charge than is permitted by law is not a violation thereof but to have that effect it is necessary that a single transaction be divided for the purpose of obtaining a higher rate of interest. The statute does not prevent the making of more than one loan to a borrower at the same time. It does condemn charging maximum interest prescribed by section 8-418, R.R.S. 1943, on the unpaid principal of more than one loan made to a borrower and existing at the same time for the purpose of obtaining a higher rate of charge. The prohibition of the statute is that the loan company shall not permit any person to become obligated on more than one contract of loan at the same time if the purpose therefor is a higher charge than if there was only a single obligation. The statute requires the loan company to be unyielding to any entreaty of the borrower that the company violate this prohibition. If the proffered justification offered by appellee in this case is a valid one, the statute would be, for all practical purposes, ineffective. It could always be claimed when there were two or more obligations, as it is represented in this case, that each loan was made for the purpose of assisting or accommodating the borrower by complying with his desire and request.
Appellee argues in support of the judgment of dismissal by the trial court of the first cause of action of the second amended petition of appellant that it is correct because the cause of action was for the recovery of a forfeiture and a penalty; that any cause of action therefor accruing more than 1 year before the commencement of this action was required by the statute to have been instituted, if at all, within 1 year from the date of the accrual of any cause of action therefor; and that the alleged cause of action of appellant was barred by the statute of limitations.
Four of the first five loans made by appellee to appellant and the notes given by the latter to the former representing such loans as described and identified in the first cause of action were paid and fully discharged by him more than 1 year before the commencement of this action and not later than November 15, 1954. The action was commenced by appellant on December 10, 1955. The fourth loan and the note *684 representing it as described in the first cause of action herein was paid and discharged on July 26, 1955. The sixth loan and the note representing it as described in the first cause of action herein was paid and discharged August 2, 1955. The relevant part of section 25-208, R.R.S.1943, states: "The following actions can only be brought within the periods herein stated: Within one year, * * * an action upon a statute for a penalty or forfeiture * *."
The argument of appellee in this regard cannot be accepted. It is contrary to what is said and decided in Abel v. Conover, Neb., 104 N.W.2d 684, as follows: "In McNish v. General Credit Corp., supra (164 Neb. 526, 83 N.W.2d 1), plaintiff brought a suit to void an installment loan contract because of excessive interest charges therein as limited by section 45-138, R.S.Supp., 1953, and to recover back the payments made thereon by the plaintiff. * * * Applicable statutes are therein cited to the effect that such a loan is void and that the licensee shall have no right to collect or receive any principal, interest, or charges on such loan. This court concluded, from the language used in the statute, that the Legislature intended that a lender should have nothing in such a situation and that the borrower should have a judgment for the payments made. The effect of the statute as thus construed is that the purchaser retains the subject of the purchase, the note given in payment is void and uncollectible, and the purchaser is entitled to recover back any payments made thereon. Is the action to recover back the payments made an action to recover a penalty? We think not. The suit is not one for the recovery of damages. It is for the recovery of money actually paid to a licensee under a void installment loan which the licensee under the statute was not authorized to collect or to receive any payment thereon. * * * Under a statute making a contract void that is not in compliance therewith, and providing that it is unlawful to collect or receive payments thereof, an action to recover payments unlawfully received is not an action to recover a penalty. It is simply an action to recover money had and received, having none of the attributes of an action for the recovery of a penalty."
The entire last paragraph of the opinion as it appears in the official report [page 92 of 100 N.W.2d] is withdrawn and there is substituted in lieu thereof the following: The judgment should be and it is reversed and the cause is remanded with directions to the district court for Lancaster County to render a judgment against appellee in favor of appellant for the amount actually paid by him upon the six promissory notes described in the first cause of action of the amended petition with interest at 6 percent per annum upon each installment paid by appellant to appellee from the date of the payment thereof.
Former opinion modified.
Motions for rehearing overruled.
Affirmed in part, and in part reversed and remanded with directions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600436/ | 120 F.Supp. 554 (1954)
WEBB et al.
v.
STATE UNIVERSITY OF NEW YORK et al.
Civ. A. No. 5063.
United States District Court, N. D. New York.
April 27, 1954.
*555 Clifford H. Searl, Syracuse, N. Y., for Earl Webb, as President etc., Delta Kappa, Inc., Alumni Ass'n of Iota of Alpha Kappa Kappa, Inc.
Hancock, Dorr, Ryan & Shove, Syracuse, N. Y., for intervening plaintiff Delta Kappa, Inc.
Kernan & Kernan, Utica, N. Y., for intervening plaintiff, Phi Sigma Epsilon.
Butterfield, Gibbs, Harrington & Bern hardt, Buffalo, N. Y. (Robert P. Harrington, Buffalo, N. Y., and Julian B. Erway, Albany, N. Y., of counsel), for intervening *556 plaintiffs Pi Kappa Sigma, Delta Sigma Epsilon Sorority, Alpha Sigma Tau Sorority, Theta Sigma Upsilon Sorority, Roger Mueller.
Nathaniel L. Goldstein, Atty. Gen. of State of New York, Wendell P. Brown, Sol. Gen., Albany, John C. Crary, Jr., Asst. Atty. Gen., Irving I. Waxman, Counsel, State University, New York City, Ruth V. Iles, Associate Counsel, Syracuse, of counsel, for defendants.
FOLEY, District Judge.
The amended complaint herein is filed in behalf of "Earl Webb, as President of Sigma Tau Gamma, a voluntary unincorporated association, and all others similarly situated." This pleading describes the plaintiff as a citizen of the United States and a resident of the State of Missouri and the duly elected and acting President of Sigma Tau Gamma, a social fraternity of male students, having chapters at forty-five colleges and universities throughout the United States. The defendant, State University of New York, is described as a corporation created by and existing under the laws of the State of New York, and empowered by the legislature of the State of New York through its governing board of trustees, the individual defendants named, to generally manage and regulate certain institutions of college level within the State of New York, Article 8 of the Education Law of New York, as added by Chapter 698 of the Laws of New York, 1948, as amended.
It is alleged that by enactment of such pertinent law, the State University of New York, and the trustees, were made responsible for the planning, supervision and management of higher educational facilities, supported in whole or in part by state moneys. Under the original law and amendments thereto, the defendants were granted the management of some twenty-nine colleges, together with such colleges as might thereafter come under their jurisdiction. The powers delegated to effectuate the legislative purposes were broad and comprehensive. In several of these institutions which by law came within the province and jurisdiction of this State University, the plaintiff had previously, and apparently to the present time, chapters of its national fraternal association.
The main charge of the complaint goes to a resolution of the Board of Trustees, adopted October 8, 1953, allegedly upon the presentation of such resolution by its President, William S. Carlson. The resolution duly adopted states:
"Resolved that no social organization shall be permitted in any state operated unit of the State University which has any direct or indirect affiliation or connection with any national or other organization outside the particular unit; and be it further
"Resolved that no such social organization, in policy or practice, shall operate under any rule which bars students on account of race, color, religion, creed, national origin or other artificial criteria; and be it further
"Resolved that the President be, and hereby is, authorized to take such steps as he may deem appropriate to implement this policy, including the determination of which student organizations are social as distinguished from scholastic or religious, and his decision shall be final."
Inasmuch as the plaintiff alleges that it does not discriminate to any extent in the selection of its members, the gravamen of the complaint is directed against the first paragraph of the aforesaid resolution, with slight attack on the last paragraph as granting to the President unreasonable dictatorial, discriminatory and unjust power.
The complaint is most voluminous, and would not be considered, in my judgment, a model pleading for conciseness. By important amendment, consented to by the defendants, an allegation was added based upon the jurisdictional provisions of Section 1343, Title 28 U.S.C.A., as related to the claimed violations of the civil rights provisions *557 of Section 1983, Title 42 U.S.C.A. Declarative and injunctive relief prayed for in the complaint is based generally upon constitutional grounds in that the provisions of the resolution and their intended purpose and effect are violative of the constitutional rights of the plaintiff as embodied in the First Amendment, particularly in reference to freedom of assembly; the provisions of the Fourteenth Amendment, with particular reference to the due process clause in that there was failure to grant a hearing and the content and method of passage thereof is discriminatory, arbitrary and capricious; the provision of Article I, Section 10, in that existing contract rights are breached. By another important amendment to the original complaint, an interlocutory and permanent injunction, after a hearing by a three-judge court, is now requested to annul the aforesaid resolution of October 8, 1953.
A motion to dismiss the original complaint had been filed in behalf of the defendants based upon stated grounds to dismiss for lack of jurisdiction in the court, and for failure to assert a claim upon which relief could be granted. The amended complaint is now subject to such motion. Procedural confusion was caused by the uncertainty of the plaintiff as to the need for a three-judge court to decide the merits of the controversy. However, that uncertainty vanished when the mandatory provision of Section 2281, Title 28 U.S.C.A. in relation to injunctive relief against state officers was realized, and the plaintiff thereafter filed a formal application with me for the convening of a three-judge court, the procedure for such call being provided for in Section 2284, Title 28 U.S.C.A. It is now agreed by both sides that the merits, if reached, must be decided by a three-judge statutory court.
As the dust was settling, on the scene came eight (as I count them, the State refers to six in its reply brief) new interveners, and such parties were allowed to intervene and file pleadings with the express consent of the defendants. One, Pi Kappa Sigma is an unincorporated association like the original plaintiff. Four, Phi Sigma Epsilon, Delta Sigma Epsilon, Alpha Sigma Tau and Theta Sigma Upsilon are foreign corporations. Interveners Alumni Association of Iota of Alpha Kappa Kappa, Inc. and Delta Kappa, Inc. are New York corporations. Roger Mueller is a student at Buffalo Teachers College and a member of Sigma Tau Gamma, previously described. All these intervening plaintiffs, by their pleadings in intervention, attach themselves to the complaint of the original plaintiff with the statement that their rights are almost identical, that each will suffer irreparable injury from the effects of the resolution, and ask for the same relief prayed for in the amended complaint of the original plaintiff. It is evident that the intervention of certain of these parties, particularly the four foreign corporations with their diversity of citizenship and the individual asserting violation of his civil rights raise a conglomeration of jurisdictional problems, perplexing as to whether they may add new hinges in support of jurisdiction, Sections 1331, 1332(a) (2), 1343 (3), Title 28 U.S.C.A., and may be considered to aggregate the necessary jurisdictional amount.
To each of these intervening pleadings or complaints, the defendants filed separate motions to dismiss similar to the motion filed against the original complaint. The stated grounds for lack of jurisdiction of the subject matter, specifically challenge the presence of substantial questions in relation to deprivation of civil rights, the same presence of substance in relation to matters arising under the constitution, laws and treaties of the United States. It is specifically traversed that the matter in controversy exceeds the value of $3,000 exclusive of interest and costs, and the failure of diversity is urged as a ground for dismissal when it applies to the status of the particular party as an unincorporated association, New York corporation or individual citizen of New York. I outline these factors to indicate *558 the variety and complexity of the jurisdictional problems presented.
Despite these intricate questions, the first business at hand for me to decide is the necessity for the convening of a three-judge court, ordinarily necessary because of the injunctive relief prayed for against a state official body, Title 28 U.S.C.A. 2281. In a strong, able and persuasive brief, the representatives of the State of New York contend that the constitutional claims posed in behalf of all plaintiffs are plainly unsubstantial because of previous holdings in the Supreme Court of the United States on similar matters. From that premise, with the further assumption that the pleadings establish no other ground of federal jurisdiction, it is logically urged that the upholding of such argument would necessarily obviate the convening of a three-judge court.
The principles in regard to the convening of a court of three judges have been clearly stated but are not too simple in application. In California Water Service Co. v. City of Redding, 304 U.S. 252, 254, 58 S.Ct. 865, 866, 82 L.Ed. 1323, "It is therefore the duty of a district judge, to whom an application for an injunction restraining the enforcement of a state statute or order is made, to scrutinize the bill of complaint to ascertain whether a substantial federal question is presented, as otherwise the provision for the convening of a court of three judges is not applicable." Citing Ex parte Buder, 271 U.S. 461, 467, 46 S.Ct. 557, 70 L.Ed. 1036; Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 4, 78 L.Ed. 152.
Then again in Ex parte Poresky, supra, "The existence of a substantial question of constitutionality must be determined by the allegations of the bill of complaint. * * * The question may be plainly unsubstantial, either because it is `obviously without merit' or because `its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy'." Citing cases.
However, in these authorities, imposing the duty of search and scrutiny by the district judge for a substantial federal question in the complaint, it is emphasized that only "in the absence of diversity" and when "no other ground of jurisdiction appears" does the district judge clearly have the right to dismiss for want of jurisdiction because no substantial question is presented (Italics mine) (Ex parte Poresky, supra; Poresky v. Ryan, 82 F.2d 311, certiorari denied 298 U.S. 654, 56 S.Ct. 678, 80 L.Ed. 1380. A recent decision does establish that diversity of citizenship alone may confer jurisdiction, although it does not follow that such jurisdiction must be exercised. Alabama v. Southern R. Co., 341 U.S. 341, 344-345, 71 S.Ct. 762, 95 L.Ed. 1002. Also in Ex parte Poresky, supra, and in Stratton v. St. Louis S. W. R. Co., 282 U.S. 10, 15, 51 S.Ct. 8, 75 L.Ed. 135, it is pointed out that a single judge is not authorized to dismiss the complaint on the merits whatever his opinion might be.
It is apparent that there are many attributes of technical jurisdiction present and it is not clear to me under the authorities that such other possible qualification for federal decision should be disregarded by a single judge even if he considered the problem presented lacking in constitutional and legal substance in the federal sense.
Despite such feeling, the main attack upon substantiality because of previous federal decisions should be discussed. The defendants rely upon the opinions of the Supreme Court in Waugh v. Board of Trustees of Univ. of Miss., 237 U.S. 589, 35 S.Ct. 720, 59 L.Ed. 1131 and Hamilton v. Regents of Univ. of Cal., 293 U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343. Also, the opinion in Hughes v. Caddo Parish School Board, 57 F.Supp. 508, affirmed by the Supreme Court 323 U.S. 685, 65 S.Ct. 562, 89 L.Ed. 554 in a memorandum-decision based solely on the *559 authority of Waugh v. Board of Trustees of the Univ. of Miss., supra.
It cannot be seriously questioned that the decisions are close in fact and law to the situation here. As in all legal controversies, arguable and debatable distinctions may be made legally and factually from the situation now presented by the complaint herein. Most significant, however, is the fact that the principle enunciated in the Waugh case and relied upon by the defendants as having such tremendous impact as to foreclose the subject was not cited as authority or precedent in the later Hamilton case. In the Hamilton case, 293 U.S. at page 258, 55 S.Ct. at page 202, the Supreme Court rejected flatly the argument that a substantial federal question was lacking, and stated, "we are unable to say that every question that appellants have brought for decision is so clearly not debatable and utterly lacking in merit as to require dismissal for want of substance." The significant factor in Hughes v. Caddo, supra, is that the matter was decided by a three-judge court and dismissed for want of jurisdiction, and such procedure was not questioned by the Supreme Court in the affirmance. In a recent case, Pyeatte v. Board of Regents of Univ. of Oklahoma, D.C., 102 F.Supp. 407, affirmed 342 U.S. 936, 72 S.Ct. 567, 96 L.Ed. 696, a similar challenge in a like situation to a ruling of the Board of Regents was heard by a three-judge court and the matter was considered and denied upon the merits. The court considered and discussed the Hamilton case but did not dismiss peremptorily for want of jurisdiction. Frankly, under this state of the law, I do not find clear uniformity and consistency which to my mind forecloses automatically the position assumed here by the plaintiffs in their pleadings. Rok v. Legg, D.C., 27 F.Supp. 243; Acret v. Harwood, D.C., 41 F.Supp. 492. Because of my own difficulty in research, it would be most hypocritical to state categorically and I am unable to say that the questions are foreclosed and not fairly open to debate, and thus deprive the plaintiffs upon uncertain grounds of the prescribed hearing.
I am fully cognizant of the extreme burden placed upon the federal judiciary by the convening of a three-judge court and realize it should not be lightly extended. Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., 292 U.S. 386, 391, 54 S.Ct. 732, 78 L.Ed. 1318. I have also considered the line of authorities which warn against federal interference with state acts, but feel such discretionary decision should be left to the three judges. Railroad Comm. v. Pullman Co., 312 U.S. 496, 500, 501, 61 S.Ct. 643, 85 L.Ed. 971; Stainback v. Mo Hock Ke Lok Po., 336 U.S. 368, 69 S.Ct. 606, 93 L.Ed. 741; Alabama v. Southern Ry. Co., supra; East Coast Lumber Terminal v. Town of Babylon, 2 Cir., 174 F.2d 106, 8 A.L.R.2d 1219.
Finally, if I am in error, it seems that the three judges once convened have the power to correct the situation either directly or indirectly. Osage Tribe of Indians v. Ickes, D.C., 45 F.Supp. 179; Norumbega Co. v. Bennett, D.C., 3 F. Supp. 500, 502, reversed 290 U.S. 598, 54 S.Ct. 207, 78 L.Ed. 526.
Because of the additional jurisdictional claims presented, involving civil rights, diversity, aggregation of interests, and because I am unable to say with certainty there are not constitutional problems presented of substance and importance, which are not arguable because of previous judicial decisions and interpretations, I shall grant the application of the plaintiff for the convening of a three-judge court and shall set the machinery in motion as prescribed in 28 U.S.C.A. § 2284. I hold there is sufficient present to warrant such action, and I defer and reserve the motions to dismiss filed by the defendants upon particular grounds stated therein for the consideration and decision of the statutory court, and it is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600442/ | 120 F.Supp. 96 (1954)
DANIELS
v.
PACIFIC-ATLANTIC S. S. CO.
Civ. 12282.
United States District Court, E. D. New York.
March 17, 1954.
Lexow & Jenkins, Suffern, for plaintiff, Herman B. Gerringer, New York City, of counsel.
Kirlin, Campbell & Keating, New York City, for defendant, Louis J. Gusmano, New York City, of counsel.
BRUCHHAUSEN, District Judge.
The defendant, pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., after both sides rested, *97 moved for a directed verdict. The Court reserved decision on the motion. The case was then submitted to the jury. The jury failed to return a verdict and was discharged. Under that rule the Court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial. Consideration of the motion calls for an analysis of the plaintiff's claims, the evidence and the law applicable thereto.
The plaintiff's contention that no motion for a directed verdict was made is without merit. The Court is distinctly under the impression that such motion was made by the defendant and if the record does not clearly so establish it should be corrected accordingly. The minutes of the trial on January 22, 1954, at page 63c, allude to the motion, viz.:
"Mr. Gusmano: Now at this time your Honor, I would also like to make the motions which were reserved at the end of the plaintiff's case, as distinguished from my motions, for a directed verdict at the end of both cases."
The plaintiff by his amended complaint alleged that he sustained personal injuries, while employed as a seaman on the S. S. Jeremiah Black, owned, operated and controlled by the defendant, and docked at a pier in the City of New York. There are two causes of action involved, viz.:
1. A claim for damages for such injuries, based upon the alleged negligence of the defendant, pursuant to the so-called Jones Act, 46 U.S.C.A. § 688.
2. A claim for indemnity for such injuries, based upon the alleged unseaworthiness of the vessel, pursuant to the admiralty or maritime law.
The plaintiff testified that he was employed as the night mate on the vessel and sustained the injuries on June 21, 1951, at about 8:20 p. m., while walking in the wheelhouse on a tour of inspection, that at a point about a foot away from the telemotor, both of his feet slipped from under him, that he fell on his back and his head caught the deck, that when he came to he felt oil on his hair and clothes, that he went back into the wheelhouse to see what happened, that about two feet from the telemotor there was a pool of oil at the place where he slipped, that it was about a quarter of an inch thick and about two feet around. There was no evidence of oil on the wheelhouse floor at any time prior to the time when the plaintiff claimed he slipped on it. It appeared that the telemotor was operated by hydraulic pressure of oil pumped through a pipe or tube running from the engine room to the telemotor in the wheelhouse, that after some months of operation small quantities of air may get into the system and that it may be purged therefrom by increasing the pressure of the oil in the pipe, thereby causing the air to emerge from the telemotor in the wheelhouse, sometimes accompanied by a small quantity of excess oil. The uncontradicted evidence is that the telemotor was so purged during the afternoon of the day of the accident, that the telemotor was not defective and was in good working condition and that there was no oil upon the floor after the purging process was completed.
It should be borne in mind that a cause of action under the Jones Act, supra, is for a tort involving negligence, while a claim for indemnity for damages for personal injuries sustained through unseaworthiness of a vessel arises out of breach of contract of implied warranty of fitness of the vessel. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099.
There is no evidence that the oil on the wheelhouse floor was there for any length of time prior to the accident. Unless the defendant had actual or constructive notice of the condition so as to furnish it with an adequate opportunity to remedy the condition, then there is no cause of action for negligence under the Jones Act. Boyce v. Seas Shipping Co., 2 Cir., 1945, 152 F.2d 658; Anderson v. Lorentzen, 2 Cir., 160 F.2d 173; Lauro v. United States, 2 Cir., 162 F.2d 32; Guerrini v. United States, 2 *98 Cir., 1948, 167 F.2d 352; Adamowski v. Gulf Oil Corporation, D.C., 93 F.Supp. 115; Id., 3 Cir., 197 F.2d 523, certiorari denied Adamowski v. Bard, 343 U.S. 906, 72 S.Ct. 634, 96 L.Ed. 1324; Holliday v. Pacific Atlantic S. S. Co., D.C., 99 F. Supp. 173, reversed on other grounds 3 Cir., 197 F.2d 610, certiorari denied 345 U.S. 922, 73 S.Ct. 780, 97 L.Ed. 1354; Shannon v. Union Barge Line Corp., 3 Cir., 194 F.2d 584, certiorari denied 344 U.S. 846, 73 S.Ct. 62, 97 L.Ed. 658. The Court adheres to the dismissal of the claim for negligence at the time both sides rested. Inasmuch as some of the cited cases involve claims for unseaworthiness under the admiralty law, as well as causes of action for negligence under the Jones Act, further reference is hereinafter made to them.
The Court has given careful consideration to the issue founded upon the cause of action for unseaworthiness of the vessel. The original concepts of unseaworthiness under the admiralty law were the failure to keep the vessel fit to carry its cargo or to supply or maintain the ship's appliances. In an early case, The Silvia, 171 U.S. 462, 19 S.Ct. 7, 8, 43 L.Ed. 241, the Court said: "The test of seaworthiness is whether the vessel is reasonably fit to carry the cargo which she has undertaken to transport." In the case of The Osceola, 1903, 189 U.S. 158, 159, 23 S.Ct. 483, 487, 44 L.Ed. 760 unseaworthiness was defined as "a failure to supply and keep in order the proper appliances appurtenant to the ship." The later case of The Arizona v. Anelich, 1936, 298 U.S. 110, 56 S.Ct. 707, 80 L.Ed. 1075 is to the same effect. In the footnote of that case, 298 U.S. at page 121, 56 S.Ct. at page 710, the Court said:
"The seaman's right of indemnity for injuries caused by defective appliances or unseaworthiness seems to have been a development from his privilege to abandon a vessel improperly fitted out. * * * This case [Dixon v. The Cyrus, Fed.Cas. No.3,930, 2 Pet.Adm. 407] was relied on in several early cases recognizing the seaman's right to consequential damages for injuries resulting from faulty equipment."
The case of Mahnich v. Southern Steamship Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, is to the same effect.
The doctrine of unseaworthiness has been extended to include improper stowage of cargo, causing personal injuries. The cases of La Guerra v. Brasileiro, 2 Cir., 1942, 124 F.2d 553, certiorari denied 315 U.S. 824, 62 S.Ct. 918, 86 L.Ed. 1220, and Fodera v. Booth American Shipping Corporation, 2 Cir., 1947, 159 F.2d 795, support that rule.
The cases involving defective or missing equipment, appurtenant to a vessel resulting in personal injuries to seamen, cited in the briefs submitted herein, are clearly within the accepted definition of unseaworthiness, viz.: The Seeandbee, 6 Cir., 1939, 102 F.2d 577; Lauro v. United States, 2 Cir., 162 F.2d 32; Bentley v. Albatross S. S. Co., 3 Cir., 1953, 203 F.2d 270; Petterson v. Alaska S. S. Co., 9 Cir., 1953, 205 F.2d 478; Hawn v. Pope & Talbot, Inc., D.C., 99 F.Supp. 226; Id., 3 Cir., 198 F.2d 800; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, and Keen v. Overseas Tankship Corp., 2 Cir., 1952, 194 F.2d 515, certiorari denied 343 U.S. 966, 72 S.Ct. 1061, 96 L.Ed. 1363. In The Seeandbee case, the Court held that the presence of grease and oil on the deck did not constitute unseaworthiness but the absence of a guard rail did so. In the main opinion in the Lauro case, negligence was predicated on the fact that the claimant was injured by slipping on a patch of oil which was shown to be present for from two to fourteen hours, prior to the accident. By way of observation, the concurring opinion in that case shows that the Judge writing it held the respondent liable on the ground of unseaworthiness of the vessel. The evidence was the accident involved not only a patch of oil but a defective appliance, a handle on a hatch cover, protruding about three inches above a hatch cover, whereas if in proper repair the handle would have been flush with the hatch cover. In the Bentley case, the absence of covers *99 on a radiator, was the proximate cause of the injuries sustained. In the Peterson case, a defect in loading apparatus, caused the accident. The Hawn v. Pope & Talbot, Inc. case resulted in recovery by the claimant where there was a missing hatch cover. In the Keen v. Overseas Tankship Corporation case, the libellant was assaulted by a fellow crew member whom the respondent should not have employed.
The mere presence of grease or oil or other transitory substance on a deck of a vessel, causing one to slip and sustain injuries has been held not to constitute unseaworthiness. The ship owner is not an insurer of safety. Hanrahan v. Pacific Transport Co., 2 Cir., 1919, 262 F. 951, certiorari denied 252 U.S. 579, 40 S.Ct. 345, 64 L.Ed. 726; The Seeandbee, supra; Adamowski v. Gulf Oil Corporation, supra; Cookingham v. United States, 3 Cir., 1950, 184 F.2d 213; Holliday v. Pacific Atlantic S. S. Co., supra; Shannon v. Union Barge Line Corp., supra, and Hawn v. Pope & Talbot, Inc., supra. In the Hanrahan v. Pacific Transport Company case, the Court determined that the temporary absence of a handrail did not warrant a finding of unseaworthiness. As heretofore stated, it was held in The Seeandbee case that the presence of grease and oil on the deck did not render the vessel unseaworthy. In the Adamowski case [93 F.Supp. 117], the plaintiff claimed he slipped while going through a dark passageway, where later an oil spot was discovered. The Court said, "* * * the defendant cannot be held liable for unseaworthiness * * *. The passageway in which the plaintiff slipped was perfectly sound." In the Cookingham case, it was held that a transitory unsafe substance on a stairway, such as jello, was not unseaworthiness. In the Holliday case, the Court followed the Cookingham case and held that wires protruding from a package or box in an ice-box, did not amount to unseaworthiness. In the Shannon case, the claimant slipped on an oil spot on a deck and fell against a metallic bar, running diagonally across a doorway. The bar was in good repair. It was held that no unseaworthiness existed. In the Hawn v. Pope & Talbot case, the Court followed the Cookingham case and stated that a deck made slippery because of grain dust from loading was a transitory unsafe condition, resulting from the normal use and operation of the ship, involving no inherently defective condition and hence not unseaworthy.
The weight of authority is that an injury caused by slipping on a spot of oil or other matter of a transitory nature in and of itself does not support a cause of action for damages for unseaworthiness.
The defendant's motion for a directed verdict is granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600445/ | 1 So.3d 705 (2008)
ANGELO & SON, LLC, et al.
v.
Angelo PIAZZA, Jr., et al.
No. CA 08-370.
Court of Appeal of Louisiana, Third Circuit.
December 10, 2008.
Writ Denied February 20, 2009.
*707 Richard E. Lee, Attorney at Law, Gregory Norman Wampler, Lemoine & Wampler, Pineville, LA, for Defendants/Appellants, Angelo Piazza, Jr. and Patricia Piazza.
Jeremy C. Cedars, Attorney at Law, Alexandria, LA, for Plaintiffs/Appellees, Angelo & Son, L.L.C., Charles Tobey and Christine Tobey.
Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
DECUIR, Judge.
Christine and Charles Tobey, along with the limited liability company they organized, Angelo & Son, L.L.C., filed suit alleging damages as a result of the purchase of Christine's parents' used car dealership and house. The suit was filed against Christine's parents, Patricia and Angelo Piazza; Christine's brother, Sam Piazza; and Sam's used car business. Christine and Charles sought rescission of the sale of the used car business and house alleging failure of cause, fraudulent inducement, detrimental reliance, unfair trade practices, and defamation. The trial court rescinded the sale of the house and business based on failure of cause and detrimental reliance. The trial court also found the Tobeys had proven defamation and awarded them $50,000.00 in damages. Only Patricia and Angelo Piazza were found liable, and they appeal the judgment of the trial court.
FACTS
As they began to approach retirement age, Angelo and Patricia discussed the sale of their used car business with all of their children. Charles and Christine became interested in running the business because Charles wanted to quit working overseas and stay at home with his family. The Piazzas wanted to retire from the used car *708 business and spend more time at their camp. Angelo wanted to do other things such as raise hogs and host benefits. After a year of discussions and planning, Charles and Christine decided to purchase the house and five acres of surrounding property. The used car business located on the property of the family home was not included in the sale documents but was effectively transferred to the Tobeys at the same time. The parties agreed that Angelo would help the Tobeys get started and Patricia would help with the book work as needed. Charles quit his job where he was making $90,000 a year, and Christine quit her job as a nurse making $30,000 a year.
The house and 5.68 acres appraised for $260,000.00. An act of cash sale from Patricia and Angelo to Charles and Christine was executed on February 4, 2005, for $260,000.00. Testimony revealed that the Piazzas gave the Tobeys a check for $10,000.00 to help with the closing costs. Christine testified that her parents did not want the business mentioned in the sale for tax reasons.
The Tobeys went to Evangeline Bank and Trust Company to obtain floor plan financing for the purchase of cars. The initial floor plan was for $150,000.00. The Tobeys bought most of the Piazzas' current inventory of used cars except for two or three that had been on the lot for over a year, which the bank did not want them to purchase. A total of eleven cars was purchased.
Charles was still overseas when Christine initially got the business up and running. By the time Charles returned in March 2005, the relationship between Christine and her father had turned sour. From the record, it appears that Angelo disagreed with the way Christine wanted to run things, specifically her decision not to purchase more cars when she had reached her credit limit. A heated discussion ensued, involving both business and family concerns, and Christine told Angelo not to come back.
After that, the Tobeys testified, Angelo set out to ruin their business. Charles testified that Angelo would bid against him at car auctions. The Piazzas placed an advertisement in the classified section of the local newspaper wherein they publicly distanced themselves from the business. Angelo made negative comments to third parties about the Tobeys' inventory which had no basis in fact. At the same time, however, Angelo helped his youngest son, Sam, set up a used car business, Sam's Auto Sales, just down the road from the Tobeys' business. Angelo became the salesman at the new business, while Sam continued working at his previous job.
In August 2006, the Tobeys filed the present lawsuit. Trial in the matter was held on July 17, 18, and August 23, 2007. The trial court found the "principal cause in purchasing the Piazza property was the understanding that Piazza would retire but aid Tobey in the operation of the business," and the Tobeys would not have purchased the business otherwise. The court found that the evidence established both a failure of cause and detrimental reliance and ordered the contract rescinded. While the allegations of fraud and unfair trade practices were rejected, the trial court did find that Angelo defamed the Tobeys in that he made statements to third parties to harm the business and reputation of the Tobeys and to deter potential customers from dealing with the Tobeys. Damages in the amount of $50,000.00 were awarded. Both Patricia and Angelo appeal this decision.
FAILURE OF CAUSE AND DETRIMENTAL RELIANCE
The trial court wrote extensive reasons for judgment. In finding a failure of cause *709 and detrimental reliance, the trial court stated:
In the case at bar the cause for the contract was clearly the decision by Piazza to retire from the used car business, with the exception of aiding Toby [sic] in the operation of the business. Piazza was clearly aware that this was the cause without which the Tobey's [sic] would not have entered into the contract to purchase the home and business. The principal cause in purchasing the Piazza property was the understanding that Piazza would retire but aid Tobey in the operation of the business. This is abundantly clear through the testimony of the parties and all witnesses, which testimony confirms that the contract was completed as originally agreed upon even to the extent that Piazza aided Tobey in the acquisition of a floor plan/credit line and did initially aid Tobey in the operation of the business. Piazza was to "do the buying and give Tobey the benefit of his experience." Once the contract was completed, these terms were followed. Unfortunately, change occurred.
. . . .
In the case at bar it is clear that Tobey relied on Piazza's assertions and promises that they would not only retire but would aid Tobey in the operation of the business.
. . . .
This Court is absolutely convinced that Angelo Piazza, Jr. convinced Sam Piazza to secure a license and open a business with the understanding that his father, Angelo Piazza, Jr. would run the business and Sam would simply receive the profits. It is also abundantly clear, from all of the evidence referenced hereinabove, that Angelo Piazza, Jr. began a calculated attempt to sink the Tobey's [sic] and ruin their business. This is gross and distasteful in the course of regular business, much less in the course of family affairs. Angelo Piazza, Jr.'s continued statement during his testimony that he would "help any of his children if they asked" is not borne out by the evidence and by the actions he undertook.
The evidence therefore proves, more probable than not, that based on failure of cause and detrimental reliance, the contract is to be rescinded.
Failure of Cause
"Cause is the reason why a party obligates himself." La.Civ.Code art. 1967. In "A Refresher Course on Cause," 12 La. L.Rev. 2 (1951), Professor J. Denson Smith explained:
Without giving more detailed consideration to the function of cause in characterizing contractual obligations, the concept plays an important role also in the resolution of questions involving the effect of error, duress, or illegality. In this respect it is well to recall to mind the emphasis placed by the French on the legal efficacy of the will, the great scope given to it and its elevation to the status of law made by the parties for themselves. As a necessary corollary to the principle that an individual should have the utmost freedom to bind himself by willing to do so, it follows that he should not be bound without having so willed. This results in the principle that where consent is given in error which covers also cases involving consent secured through fraud, or duress, a real will to bind is lacking and the expression of consent is thereby vitiated. Hence the rule that error as to the principal cause of a contract destroys the validity of the consent. Although different categories of error are dealt with, such as error as to the object, or the person, or *710 the cause, it has been said, and with good reason, that error as to the cause comprehends all kinds of error.
Error can vitiate consent, so that a contract may be rescinded based upon error. La.Civ.Code art. 1948. Article 1950 of the Civil Code describes an error which may concern cause as anything which the parties "should in good faith have regarded, as a cause of the obligation." The jurisprudence upholds the principle that a contract may be rescinded once a failure of cause is shown:
[W]e find that there was error as to the nature of the contract. Consequently, a party may rescind a contract when the error of cause is on the nature of the contract, on the thing that is the contractual object or on a substantial quality of that thing. La.C.C. Arts.1950, 1952; Matter of Adoption of Smith, 578 So.2d 988 (La.App. 4 Cir.1991), writ denied, 581 So.2d 687 (La.1991).
Dugas v. Adoption of Dugas, 614 So.2d 228, 232 (La.App. 3 Cir.1993). Further, "[e]rror vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party." La.Civ.Code art.1949.
In the case before us, the Tobeys showed that the cause of their contract with the Piazzas, i.e., the reason without which the Tobeys never would have entered into the used car business, failed. Angelo initially expressed an intent to retire, offered to teach the Tobeys and assist in the business, and obviously desired to keep the business going. The Tobeys gave up a better home and more secure income for the goodwill of a family business and the chance to continue it and perhaps improve it. Within weeks, however, Angelo started a new business, failed to assist with the Tobeys' business, and actively tried to sabotage it. The business was no longer a "family business" as both Angelo and Patricia publicly distanced themselves from it.
This case is about the combination of business and familial considerations that constitute the cause of this disputed contract. When the Piazzas changed course, the Tobeys' consent to the terms of the contract was vitiated. Goodwill, family ties, helping a father ease into well-deserved retirement all of these factors disappeared, and the Tobeys were left with a business and house they may have never really wanted in the first place, but for the family considerations. We find no manifest error in the trial court's conclusion that the Tobeys' consent to the contract with the Piazzas was vitiated by a failure of cause.
Detrimental Reliance
The doctrine of detrimental reliance is found in Louisiana Civil Code Article 1967:
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee's reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.
The supreme court in Suire v. Lafayette City-Parish Consolidated Government, 04-1459, 04-1460, 04-1466, p. 31 (La.4/12/05), 907 So.2d 37, 59, discussed the application of detrimental reliance as follows:
The doctrine of detrimental reliance is "`designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, *711 or silence.'" Babkow v. Morris Bart, P.L.C., XXXX-XXXX (La.App. 4 Cir. 12/16/98), 726 So.2d 423, 427 (quoting Orr v. Bancroft Bag, Inc., 29,046 (La.App. 2 Cir. (1/22/97), 687 So.2d 1068, 1070)). To establish detrimental reliance, a party must prove three elements by a preponderance of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one's detriment because of the reliance. Lakeland Anesthesia, Inc. v. United Healthcare of La., Inc., XXXX-XXXX (La.App. 4 Cir. 3/17/04), 871 So.2d 380, 393, writ denied, XXXX-XXXX (La.6/25/04), 876 So.2d 834; Babkow, 726 So.2d at 427. Significantly, to prevail on a detrimental reliance claim, Louisiana law does not require proof of a formal, valid, and enforceable contract. Babkow, 726 So.2d at 429 (citing Morris v. People's Bank & Trust Co., 580 So.2d 1029 (La.App. 3 Cir.), writ denied, 588 So.2d 102 (La.1991)).
We find no error in the trial court's conclusion that the Tobeys relied on Angelo's and Patricia's promises of retiring from the used car business and teaching them the business as reasons for their purchase of the house and land.
Noncompetition Agreement
The Piazzas argue that there was no valid noncompetition agreement. They contend that the promise to retire is essentially a promise not to compete with the Tobeys. Louisiana law requires that certain formalities must be observed in order to have a valid noncompetition agreement. See, Louisiana Revised Statutes 23:921(B).
"Louisiana courts have consistently held that an agreement not to compete is enforceable when it is part of the consideration for the sale of a business and its goodwill, and as long as the terms of the agreement are reasonable." Barnett v. Jabusch, 607 So.2d 1007, 1008-9 (La.App. 3 Cir.1992), writ denied, 610 So.2d 820 (La.1993). Nevertheless, Louisiana has a strong public policy disfavoring noncompetition agreements. SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695 (La.6/29/01), 808 So.2d 294. "Because such covenants are in derogation of the common right, they must be strictly construed against the party seeking their enforcement." Id. at 298.
The Piazzas equate the promise to retire with a noncompetition agreement. However, because their promise to retire did not comply with the formal requirements of a noncompetition agreement, it is, they argue, invalid. The Piazzas contend that while the failure of the Piazzas to adhere to an agreement to retire may have been a reason to rescind the contract of sale for failure of cause and the Tobeys may have detrimentally relied on the promise to retire, the fact is that there was no valid agreement as required by La.R.S. 23:921(B). Because there cannot be failure of cause or detrimental reliance on an invalid agreement, they urge this court to find the trial court erred in rescinding the contract. We disagree.
The absence of a valid noncompetition agreement is not a material issue in this case. The Piazzas' expressed intention to retire cannot be equated with a promise not to compete in the used car business. While the testimony shows that the Tobeys were offended by the Piazzas' actions in setting up Sam's Auto Sales and working there, they did not seek to enjoin the operation of the new business. They also did not seek damages resulting from the operation of Sam's Auto Sales. The competition created by Sam's Auto Sales is immaterial. Rather, the question presented is whether the Tobeys relied to their detriment on a contract whose cause has failed due to the actions of the Piazzas. The issue of whether a valid noncompetition *712 agreement exists is a convenient creation by the defense attorney to divert attention from the real issue. It is simply digressive and without merit.
DEFAMATION
The Piazzas contend the trial court committed manifest error when it found that Angelo committed the intentional tort of defamation. They deny that Angelo made any defamatory statements about the Tobeys.
In order to establish a defamation claim, a party must establish four elements: (1) a false and defamatory statement; (2) an unprivileged publication or communication to a third party; (3) fault on the part of the publisher; and (4) resulting injury. Anders v. Andrus, 00-552, 00-553 (La.App. 3 Cir. 12/6/00), 773 So.2d 289, writ denied, 01-66 (La.3/23/01), 788 So.2d 427 (citing Trentecosta v. Beck, 96-2388 (La.10/21/97), 703 So.2d 552).
The trial court specifically found that:
Angelo Piazza, Jr. made statements to third parties in an effort to harm the business reputation of Tobey and to deter persons from dealing with Tobey. Angelo Piazza, Jr.'s statements that he was "going to burn them;" "going to ruin them;" "criticisms on their treatment of customers;" "criticisms of the quality of the vehicles they were selling;" and all of his actions were clear that these statements were made in an effort to hurt Tobey.
As confirmed in this Court's review of the testimony, they were published to third parties and were defamatory in their meaning. It is clear from the demeanor of Angelo Piazza, Jr. and the entirety of the evidence that not only was there a lack of reasonable belief in the truth of these statements, but they were made with the intent to hurt Tobey. Also, there is absolutely no evidence to indicate that any of the statements concerning the Tobey's treatment of their customers and/or the quality of the cars made by Angelo Piazza, Jr. were true statements. It is also quite clear that these defamatory words caused damage to Tobey's business.
Our review of the testimony at trial confirms that Angelo did make defamatory remarks about the Tobeys and the cars they were selling to third parties. There was no manifest error in the trial court's decision.
The Piazzas further claim that because the Tobeys have proven no loss of income, no damages should be awarded for the defamation. They argue that the Tobeys exceeded the Piazzas 100 cars per year in 2005 and 2006, and that in 2006 they sold 188 cars, which was just two short of the best year of the Piazzas when they sold 190 cars. Alternatively, the Piazzas contend that even if we find that the Tobeys are entitled to damages, the award of $50,000.00 is too high.
"The injury resulting from a defamatory statement may include nonpecuniary or general damages such as injury to reputation, personal humiliation, embarrassment and mental anguish even when no special damage such as loss of income is claimed." Costello v. Hardy, 03-1146, p. 14 (La.1/21/04), 864 So.2d 129, 141.
There is no doubt that Angelo's statements to other people about his daughter and son-in-law caused emotional distress for the Tobeys. The embarrassment and humiliation suffered by the Tobeys when Christine's own father set out to destroy their business was clear. Consequently, while the $50,000.00 award to the Tobeys may be somewhat high, we cannot say it was an abuse of discretion.
*713 The Piazzas' last assignment of error concerns the assessment of the defamation damages against Patricia. The Piazzas are correct that an obligation resulting from an intentional wrong is a separate obligation when it is not perpetrated for the benefit of the community. La.Civ.Code art. 2363. Obligations incurred by a spouse during the existence of a community property regime are presumed to be community obligations. La. Civ.Code art. 2361; Bridges v. Bridges, 96-1191 (La.App. 3 Cir. 3/12/97), 692 So.2d 1186. However, this presumption is rebuttable only upon "proof by clear and convincing evidence that the debt was not incurred for the benefit of the community. La.Civ.Code art. 2363; Keene v. Reggie, 96-740 (La.App. 3 Cir. 10/22/97), 701 So.2d 720." Succession of Moss, 00-62, p. 5 (La.App. 3 Cir. 6/21/00), 769 So.2d 614, 618, writ denied, 00-2834 (La. 12/8/00), 776 So.2d 462.
The record is replete with evidence of Patricia's complicity in the actions of Angelo. She did not meet her burden of rebutting, with clear and convincing evidence, the presumption of a community obligation in the award of defamation damages. Accordingly, we find no error with the trial court's assessment of defamation damages against Patricia.
DECREE
For the reasons set forth in this opinion, the judgment of the trial court finding that the Tobeys proved a failure of cause and detrimental reliance and ordering the rescission of the sale of the house and land, in addition to ordering the Piazzas to purchase the vehicle inventory of Angelo & Son, L.L.C., is affirmed. The judgment ordering Angelo and Patricia Piazza to pay $50,000.00 to the Tobeys is also affirmed. The Piazzas are assessed with the costs of this appeal.
AFFIRMED.
EZELL, Judge, dissents and assigns written reasons.
EZELL, Judge, Dissents.
I disagree with the majority that the Tobeys established a failure of cause and detrimental reliance requiring the rescission of the sale of a house and land, including the repurchasing of inventory which no longer even existed as it was at the time of the sale. A lot of emphasis is placed on the fact that this was a family business and the Tobeys would never have bought the business otherwise. However, not only was it convenient for the Tobeys to purchase an already-established business, Charles wanted to quit working overseas and both Charles and Christine wanted the family home. Even the trial court agreed that the Tobeys made more money in the used car business than their prior combined income. I agree that unfortunate family disputes and confrontations arose as a result of the sale, but I disagree that this is a reason to rescind the sale of the home. I do not agree with the majority opinion that the noncompetition agreement was a convenient creation by the defense attorney to divert attention from the real issue.
During her testimony, Patricia testified that before the Tobeys bought the business Christine wanted to insure that the Piazzas would not go into business and compete with them and inquired about seeing an attorney. Patricia offered to go to an attorney but Christine told her that she was not concerned. Patricia did not think it would be a problem either because they were certain that the Tobeys would continue to let Angelo help them with the business.
*714 Louisiana law requires that certain formalities must be observed in order to have a valid noncompetition agreement. Louisiana Revised Statutes 23:921(B) provides:
Any person, including a corporation and the individual shareholders of such corporation, who sells the goodwill of a business may agree with the buyer that the seller or other interested party in the transaction, will refrain from carrying on or engaging in a business similar to the business being sold or from soliciting customers of the business being sold within a specified parish or parishes, or municipality or municipalities, or parts thereof, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein, not to exceed a period of two years from the date of sale.
"Louisiana courts have consistently held that an agreement not to compete is enforceable when it is part of the consideration for the sale of a business and its goodwill, and as long as the terms of the agreement are reasonable in its limitation of duration and territory covered." Barnett v. Jabusch, 607 So.2d 1007, 1008-09 (La.App. 3 Cir.1992), writ denied, 610 So.2d 820 (La.1993).
Louisiana has a strong public policy disfavoring noncompetition agreements. SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695 (La.6/29/01), 808 So.2d 294. Louisiana also has a long-standing public policy to prohibit or severely restrict such agreements. Id. "Because such covenants are in derogation of the common right, they must be strictly construed against the party seeking their enforcement." Id. at 298.
No agreement was ever reached as to the territory in which the Piazzas would be restricted from operating a used car business. Obviously, retirement anticipated a longer term than two years, so the duration of the noncompetition agreement is also invalid. Therefore, any agreement that the Tobeys and Piazzas had regarding noncompetition is invalid. While the failure of the Piazzas to adhere to an agreement to retire may have been a reason to rescind the contract of sale for failure of cause and the Tobeys may have detrimentally relied on the promise to retire, the fact is that there was no valid agreement as required by La.R.S. 23:921(B).
Simply put this is a dispute between family members which the parties are trying to rectify through the court system. I agree that the Tobeys relied on Angelo's and Patricia's promises of retiring from the used car business as one of the reasons they bought the house and land. I also do not condone the father's actions and find that his actions were not that of a loving father. However, I find that the Tobeys are seeking to prevent him from competing with their business and there was no valid noncompetition agreement. Where there is an invalid agreement, there cannot be failure of cause or detrimental. Therefore, I find that the trial court erred in rescinding the contract.
I am in agreement with the majority that Angelo did make defamatory remarks about the Tobeys and the cars they were selling to third parties. I also agree that the $50,000 award to the Tobeys was not an abuse of discretion. However, I disagree with the majority that Patricia should be assessed with the defamation damages. There was no evidence whatsoever that Patricia made any defamatory statements about the Tobeys. There was also no evidence that Angelo's statements were for the benefit of the community. His statements were made for his own personal gratification.
The majority fails to address the issue relative to the purchase of inventory that was present at the time of sale and the *715 inventory presently existing in the LLC created after the sale between the parties to this lawsuit. There seems to me that there is no privity of contract between the Defendants and the LLC. The fact is, the LLC did not exist when the purchase of the home and business was complete.
How were the Plaintiffs damaged? The house is not defective, and the Plaintiffs made more than they previously made from their previous employment. Therefore, I must respectfully dissent from the majority. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600449/ | 45 Wis.2d 620 (1970)
173 N.W.2d 605
CITY OF FOND DU LAC, by city manager and another, Appellant,
v.
DEPARTMENT OF NATURAL RESOURCES (Division of Environmental Protection), Respondent.
No. 279.
Supreme Court of Wisconsin.
Argued January 9, 1970.
Decided February 3, 1970.
*625 For the appellant there was a brief and oral argument by Henry B. Buslee, city attorney.
For the respondent the cause was argued by William F. Eich, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
A brief amicus curiae was filed by St. Peter & Hauer and Albert J. Hauer, all of Fond du Lac, for the town of Fond du Lac.
HANLEY, J.
This appeal presents three issues:
(1) Was the department's 1967 hearing res judicata, thereby foreclosing it from conducting additional hearings;
(2) Did the department act arbitrarily and capriciously in denying the appellant's request for a declaratory ruling; and
(3) Did an additional hearing by the department constitute an unconstitutional usurpation of the judiciary's authority?
Applicability of the doctrine of res judicata.
It has long been established in this jurisdiction that the doctrine of res judicata has no application to the proceeding of an administrative agency such as the department. In Duel v. State Farm Mut. Automobile Ins. Co. (1942), 240 Wis. 161, 1 N. W. 2d 887, 2 N. W. 2d 871, an insurance commissioner refused to grant a license to a foreign corporation despite the fact that his predecessor had previously granted the license. In response to the company's assertion that the commission's previous determination was res judicata, this court stated at page 181:
"The extent of the power of an administrative body or agency to reconsider its own findings or orders has nothing to do with res adjudicata; the latter doctrine *626 applies solely to courts. See Lange Canning Co. v. Industrial Comm. 183 Wis. 583, 197 N. W. 722; Hinrichs v. Industrial Comm. 225 Wis. 195, 273 N. W. 545; Maryland Casualty Co. v. Industrial Comm. 230 Wis. 363, 284 N. W. 36...."
The appellant's reliance upon Buhler v. Department of Agriculture (1938), 229 Wis. 133, 280 N. W. 367, is misplaced. After citing Buhler for the proposition that one is entitled to a fair hearing before an agency, no showing of unfairness has been presented. Any expense or inconvenience which will be incurred by the appellant as a result of further hearing is justified by subsequent changes in such factors as population, water consumption and sewage volume.
Arbitrary and capricious action of the department.
The appellant contends that the department's refusal to issue a declaratory ruling authorized by sec. 227.06,[2]*627 Stats., was arbitrary and capricious. This contention is predicated upon the assumption that all necessary information was acquired at the 1967 hearing and upon the fact that another hearing will result in additional expense to the city.
In Jabs v. State Board of Personnel (1967), 34 Wis. 2d 245, 251, 148 N. W. 2d 853, this court described an arbitrary or capricious decision as "`... one which is either so unreasonable as to be without a rational basis or the result of an unconsidered, wilful and irrational choice of conduct.' ..." See also: Robertson Transportation Co. v. Public Service Comm. (1968), 39 Wis. 2d 653, 661, 159 N. W. 2d 636.
In the instant case the department did exactly as required by sec. 227.06, Stats. It denied the petition in writing, promptly notified the appellant of its decision and briefly stated its reasons for denial. One such reason was the change in circumstances since the 1967 hearing.
Prior to the commencement of the 1967 hearing it was specifically noted that such hearing was for informational purposes only and that additional hearings might be necessary before the issuance of mandatory orders. Clearly, the department's refusal to grant a declaratory ruling that it had no authority to conduct another hearing was consistent with its initial pronouncement and not "an unconsidered, wilful and irrational choice of *628 conduct." The problem of pollution in the Fond du Lac area has existed for many years and grows worse each day. The department has been vested with the responsibility of abating pollution and should be allowed to exercise its discretion in the discharge of this responsibility.
Usurpation of judicial functions.
Citing In re City of Fond du Lac, supra, the appellant argues that the county court has determined the facts of the case and that any further hearings by the department would constitute usurpation of the judiciary's power to make factual determinations.
In re City of Fond du Lac, supra, simply declared the statutory procedure[3] for the formation of metropolitan sewerage systems unconstitutional in that they unlawfully granted courts authority to decide questions which were "political" rather than "factual" in nature.
In determining that the county court could not, as a matter of law, decide what was the "best" solution to the pollution problem, this court did not intend that the county court's "factual" determination should foreclose the department from conducting additional hearings. To have so held would have been in direct conflict with the legislature's express intention to vest pollution abatement authority in the department.
We conclude that the department's 1967 hearing was not res judicata, that the department did not act arbitrarily and capriciously in denying the appellant's request for a declaratory ruling, and that any additional hearing would not constitute an unconstitutional usurpation of the judiciary's authority.
By the Court.Judgment affirmed.
NOTES
[2] "Declaratory rulings. (1) Any agency may, on petition by any interested person, issue a declaratory ruling with respect to the applicability to any person, property or state of facts of any rule or statute enforced by it. Full opportunity for hearing shall be afforded to interested parties. A declaratory ruling shall bind the agency and all parties to the proceedings on the statement of facts alleged, unless it is altered or set aside by a court. A ruling shall be subject to review in the circuit court in the manner provided for the review of administrative decisions.
"(2) Petitions for declaratory rulings shall conform to the following requirements:
"(a) The petition shall be in writing and its caption shall include the name of the agency and a reference to the nature of the petition.
"(b) The petition shall contain a reference to the rule or statute with respect to which the declaratory ruling is requested, a concise statement of facts describing the situation as to which the declaratory ruling is requested, the reasons for the requested ruling, and the names and addresses of persons other than the petitioner, if any, upon whom it is sought to make the declaratory ruling binding.
"(c) The petition shall be signed by one or more persons, with each signer's address set forth opposite his name, and shall be verified by at least one of the signers. If a person signs on behalf of a corporation or association, that fact also shall be indicated opposite his name.
"(3) The petition shall be filed with the administrative head of the agency or with a member of the agency's policy board.
"(4) Within a reasonable time after receipt of a petition pursuant to this section, an agency shall either deny the petition in writing or schedule the matter for hearing. If the agency denies the petition, it shall promptly notify the person who filed the petition of its decision, including a brief statement of the reasons therefor."
[3] Secs. 66.20 to 66.209, Stats. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600453/ | 173 N.W.2d 349 (1969)
STATE of Minnesota, Respondent,
v.
Bobby Junior NELSON, Appellant.
No. 41375.
Supreme Court of Minnesota.
December 12, 1969.
*350 C. Paul Jones, Public Defender, Robert E. Oliphant, Asst. Public Defender, Rosalie E. Wahl, Minneapolis, for appellant.
Douglas M. Head, Atty. Gen., St. Paul, Robert C. Runchey, County Atty., Marshall, Charles C. Johnson, 5th Dist. Prosecutor, Mankato, for respondent.
Heard before KNUTSON, C. J., and MURPHY, OTIS, ROGOSHESKE and SHERAN, JJ.
OPINION
ROGOSHESKE, Justice.
Defendant was convicted by a jury of aggravated robbery in violation of Minn.St. 609.245 and sentenced to prison for a term not to exceed 20 years. He appeals from the judgment of conviction.
The issues presented are whether the evidence was insufficient as a matter of law to support the conviction; whether there was probable cause for defendant's arrest; and whether certain items of evidence, including an incriminating statement made to the county sheriff, were properly admitted in evidence.
It is undisputed that about 11 p. m. on July 5, 1967, the Friendship Club in Tracy, Lyon County, Minnesota, was robbed of about $30 by a Caucasian male, approximately 6 feet tall, weighing 160 pounds, and having dark brown eyes. The man was wearing a green jacket or shirt and a scarf or bandanna which masked his face. He carried a sawed-off, 410-gauge shotgun which was discharged into the ceiling of the premises during the course of the robbery. The ejected shell was later found and turned over to the police.
On July 6, 1967, the Lyon County sheriff sent out a teletype message to the effect that the armed robbery had been committed on July 5, 1967, in the manner and by a person as described above. This message was received by the St. Paul police.
On July 7, 1967, one Janice DeCosse took a sawed-off, 410-gauge shotgun and clip and a partially filled box of 410-gauge shotgun shells to the rectory of St. Mary's *351 Catholic Church in St. Paul. In response to a call from Father Bauer (a priest at St. Mary's), two detectives from the St. Paul Police Department went to the rectory; talked with Mrs. DeCosse, a Mrs. Smith, and Father Bauer; were given possession of the shotgun and shells by Father Bauer; and were told that the shotgun and shells belonged to defendant. The officers were told that defendant was at the DeCosse residence, and it is a fair inference from the record that they were also told that he perpetrated the Tracy robbery.
The two detectives, both having seen the teletype message, took the shotgun shells to the city police station, where they consulted with their superior officer. The detectives then went to the DeCosse residence and arrested defendant. At that time he was "frisked" for a weapon, but no search of his person or of the DeCosse residence was made. Upon arrival at the police station he was searched, and the officers found four 410-gauge shotgun shells in his pocket.
Thereafter the detectives returned to the DeCosse residence, and Mrs. DeCosse voluntarily gave them a blue satchel containing, among other things, a 410-gauge shotgun shell. The satchel and its contents were taken to the police station. No search was ever made of the DeCosse residence.
When apprehended, defendant was informed he was arrested on suspicion of robbery, and when he arrived at the police station, he was informed the robbery took place at Tracy. Defendant was also informed at the time of his arrest, and later at the city jail, that he was being held for Wisconsin authorities for parole violation. Before he was questioned by the Lyon County sheriff, his parole officer visited him at the jail.
Transcripts of the hearing on defendant's pretrial motion to suppress evidence and of his trial both make clear, as the trial court concluded, that Miranda warnings were given defendant prior to the search of his person, before he was questioned by a Federal agent concerning a possible violation of the Federal Firearms Act, and again on July 13 before he was questioned by the sheriff concerning the robbery, and and that defendant acknowledged that these warnings were given and that he understood them.
During the interrogation by the sheriff, defendant admitted ownership of the 410-gauge shotgun found in the DeCosse home, which he said he purchased on July 3, 1967, for the purpose of hunting and that he purchased shells at the same time. He denied that he sawed off the barrel of the gun and said it was returned to him in that condition by a person to whom he lent it, whom he refused to name. Defendant also denied any knowledge of the robbery or that he was in Tracy (where he had attended grade school) on July 5, 1967, indicating he had not been there since the latter part of May or the first part of June.
Defendant's pretrial motion to suppress both the statement made to the sheriff and the physical evidence obtained from the priest and Mrs. DeCosse was denied. All of this evidence was offered and received at trial. In our opinion, the court, the prosecution, and the defense counsel conducted the trial with exemplary adherence to the rules designed to ensure a fair trial as well as to professional standards which all would agree should govern opposing advocates in the performance of their roles and function in the administration of criminal justice under our adversary system.[1]
1. Defendant contends that the evidence submitted by the state was, as a matter of law, insufficient to prove that he was the person who committed the robbery. He argues that the circumstantial evidence relied upon to support an inference that he was the robber was equally *352 consistent with an inference that some third person used his gun to commit the crime.
It is true that the evidence as to identity is entirely circumstantial. Witnesses to the robbery described the robber's physical appearance, which coincided with defendant's height, weight, and color of eyes. The sheriff testified to statements made by defendant as previously set forth. The ejected 410-gauge shotgun shell found at the scene of the crime and the 410-gauge shotgun turned over to the priest by Mrs. DeCosse were examined by a laboratory analyst of the Minnesota Bureau of Criminal Apprehension. He testified it was his opinion that the shell had been fired from defendant's gun. He also testified it was his opinion the 19 shells delivered by the priest to the police, the 4 shells found in defendant's pocket at the time of his arrest, the shell found in the satchel, and the fired shell found at the scene of the crime, were similar in construction, the same size, and together constituted a full box of 410-gauge shotgun shells.
Lyle Fredericks, a resident of Tracy who had known defendant for 4 or 5 years, testified that defendant stopped at his home in Tracy at about 10 or 10:30 on the evening the crime was committed, and that defendant was carrying a small bag.
Mrs. DeCosse testified she was with defendant on July 4 and on July 5 until about 3:30 p. m., at which time she loaned him $10. She testified she next saw him July 6 at about 10 or 11 p. m., and that they spent the evening together; that during the evening she called her boys at home at defendant's request and told them to go to some friend's home and pick up two bags; that she called home again about 1 a. m. and her boys told her there was a loaded gun in the bag; that she and defendant went to her home and the boys went to sleep; that she burned a pair of socks, a green shirt, and the wood stock of the 410-gauge shotgun in the basement of her home at the suggestion of defendant; that the wood stock was part of the 410-gauge shotgun she later delivered to the priest; that she had never seen defendant wear the green shirt she had burned; that when she saw defendant on July 6 she "guessed" he had about $30 in his possession; and that she believed defendant bought a gun at Sears on July 3.
Mindful of the fundamental principle that a conviction upon circumstantial evidence cannot be sustained against the presumption of innocence unless the reasonable inferences from such evidence are consistent only with defendant's guilt and inconsistent with any rational hypothesis except that of guilt, we are satisfied that the evidence of identification was not insufficient as a matter of law and was ample to permit the jury to infer, consistent with the above standard, that the defendant and not some third person committed the offense. State v. Kotka, 277 Minn. 331, 152 N.W.2d 445.
2. Defendant also asserts that there was no probable cause for his arrest. We cannot agree. When the arrest was made the police officers knew that a robbery had in fact been committed by a man carrying a sawed-off, 410-gauge shotgun and that defendant owned such a gun, which was delivered to them by persons who suspected that he had committed the crime. Upon arriving at the DeCosse residence, the officers could observe that defendant fit the physical description of the robber. Such facts clearly would warrant a cautious man to reasonably believe that defendant committed the robbery. State v. Sorenson, 270 Minn. 186, 134 N.W.2d 115.
3. Nor can we accept defendant's claim that the blue satchel and shotgun shell were the products of an unconstitutional search and seizure and thus inadmissible. In our opinion, the voluntary delivery of the satchel to the police by Mrs. DeCosse was not a search and seizure within the meaning of the Fourth Amendment to the Federal Constitution since no right *353 of privacy thereby secured to the person arrested was breached. In United States ex rel. Stacey v. Pate (7 Cir.), 324 F.2d 934, 935, where defendant's wife voluntarily gave police officers defendant's bloody shirt when asked for it, the court said:
"* * * Police officers went to the premises where incriminating evidence was found and were voluntarily given the shirt. Their action did not constitute a search. * * *
"* * * `A search implies an examination of one's premises or person with a view to the discovery of contraband or evidence of guilt to be used in prosecution of a criminal action. The term implies exploratory investigation or quest.' Petitioner's privacy was not invaded; there was no inspection or examination of his household. Under these circumstances, we hold there was no search either in an actual or legal sense."
The conduct of the arresting officers in this case is analogous to that in the Pate case. In both, no search and seizure in a physical sense occurred. Rather, the evidence sought to be excluded was voluntarily given to the police by the persons in lawful possession. We hold that there was no illegal search and seizure, and that the evidence was properly admitted.
4. Finally, defendant contends that the trial court erred in admitting statements of his ownership of the gun made by him to the sheriff 6 days after he had been arrested and prior to his being brought before a magistrate. While we do not approve of delay in bringing one arrested before a magistrate in disregard of the command of Minn.St. 629.14, under the circumstances shown we fail to see how such a delay was prejudicial requiring exclusion of defendant's otherwise voluntary admission of ownership of the shotgun especially in view of other undisputed evidence of his ownership. Moreover, although the record is not clear, failure to promptly charge defendant with the robbery offense may well have been due to the fact that the police knew defendant to be a parole violator and were awaiting disposition by the paroling authorities before filing formal charges of robbery. This record would not support a finding that the delay resulted in prejudice to defendant's fundamental rights.
Affirmed.
NOTES
[1] The state was represented at trial by the county attorney and the Fifth Judicial District public prosecutor, and the defendant by the Fifth Judicial District assistant public defender and the assistant state public defender. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600456/ | 20 Mich. App. 176 (1969)
173 N.W.2d 736
PEOPLE
v.
TEAL
Docket No. 6,018.
Michigan Court of Appeals.
Decided November 25, 1969.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, *178 Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.
Elliott S. Hall, for defendants.
Before: LESINSKI, C.J., and HOLBROOK and QUINN, JJ.
QUINN, J.
Defendants were convicted by jury verdict of breaking and entering in violation of MCLA § 750.110 (Stat Ann 1968 Cum Supp § 28.305). They were sentenced and they appeal.
The controlling issue on appeal relates to a statement given to the police by defendant Arnold as a result of interrogation. Defendants characterize this statement as a confession and plaintiff refers to it as an admission. We find the distinction meaningless. Bruton v. United States (1968), 391 US 123 (88 S Ct 1620, 20 L Ed 2d 476) deals with extrajudicial statements and covers the statement here involved.
Defendants were tried together and during trial the contents of Arnold's statement were related to the jury by a detective. Arnold did not testify and his statement implicates defendant Teal. The trial judge instructed the jury to disregard the Arnold statement as it related to Teal.
The case at bar was tried in February, 1967. Bruton, supra, was decided in May, 1968 and it was made retroactive by Roberts v. Russell (1968), 392 US 293 (88 S Ct 1921, 20 L Ed 2d 1100). The gist of Bruton is that admission in evidence in a joint trial of an extrajudicial statement by a codefendant who does not testify violates the other defendant's right of cross-examination guaranteed by the confrontation clause of the US Const, Am 6. This sixth *179 amendment right is applicable to the states, Douglas v. Alabama (1965), 380 US 415, (85 S Ct 1074, 13 L Ed 2d 934), and the same right is guaranteed by Const 1963, art 1, § 20. It was error to admit the statement of Arnold.
The Arnold statement is the only evidence which places Teal at the scene of the crime. We are not satisfied beyond a reasonable doubt that the erroneous admission of the statement did not contribute to Teal's conviction. Chapman v. California (1967), 386 US 18, (87 S Ct 824, 17 L Ed 2d 705). The Teal conviction must be reversed.
We have considered Harrington v. California (1969), 395 US 250, (89 S Ct 1726, 23 L Ed 2d 284) and find it inapplicable to the case before us. Harrington just decided Harrington and it is not precedential authority. Harrington specifically reaffirms Chapman, supra. In Harrington, one of three codefendant confessors testified and was cross-examined by Harrington's attorney. Several witnesses, including Harrington, placed the latter at the scene of the crime.
Defendant Arnold contends the statement was inadmissible against him because it was not shown to be voluntary. The trial judge held a separate hearing in the absence of the jury to determine the voluntariness of Arnold's statement. Arnold testified and denied making the statement. The trial judge found that the statement was voluntary. Our review of the record does not establish that this finding was clearly erroneous and we find no error. People v. Walker (1967), 6 Mich App 600.
Defendants question the legality of their arrest for the first time on appeal. This comes too late. People v. Camak (1967), 5 Mich App 655.
Affirmed as to defendant Arnold. Reversed and remanded for new trial as to defendant Teal.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600460/ | 173 N.W.2d 29 (1969)
184 Neb. 873
James M. MATHIESEN, Appellee,
v.
Ed BLOOMFIELD and Joey Bloomfield, his wife, Appellants,
Cedric Hall, Intervener-Appellant.
No. 37328.
Supreme Court of Nebraska.
December 12, 1969.
*30 Smith, Smith & Boyd, South Sioux City, for appellants.
Ryan & Scoville, South Sioux City, for appellee.
Heard before WHITE, C. J., and CARTER, SPENCER BOSLAUGH, SMITH and McCOWN, JJ.
WHITE, Chief Justice.
The issue presented in this case is whether the plaintiff tenant has abandoned his farm lease and forfeited his right to possession of the premises, even though the intervener had failed to give the requisite 6 months' notice on September 1, 1964, to effectually terminate the plaintiff's year-to-year farm lease. Because of the failure to give the requisite notice on September 1, 1964, the district court entered judgment for the plaintiff in this forcible entry and detainer action. On the factual issue of abandonment raised in the pleadings, the district court by its judgment in effect found that there had been no abandonment and enforced the notice requirement. The case was tried to the court without a jury and as we have many times held when a law action is tried without a jury to the court, the findings of the court have the effect of a verdict of the jury, and the judgment thereon will not be disturbed unless clearly wrong. Scottsbluff National Bank v. Blue J Feeds, Inc., 156 Neb. 65, 54 N.W.2d 392. We reverse the judgment of the district court and remand the cause with directions to find for all defendants and dismiss plaintiff's complaint at plaintiff's costs.
The background facts are important in the understanding of this case. In 1954 the plaintiff and the intervener-defendant landlord entered into a farm lease arrangement in the customary leasing arrangement requiring a 6-month notice of termination prior to March 1 of the succeeding year. No subsequent lease was entered into as is customary and the plaintiff-appellant held over during the ensuing years. Sometime in the fall of 1964, subsequent to September 1, 1964, the landlord discovered and asserted that the plaintiff tenant had been converting a portion of his share of the crop, and on January 4, 1965, gave notice attempting to terminate the lease. Shortly thereafter he sued the plaintiff in a separate action for conversion. On January 12, 1965, plaintiff was foreclosed of all of his farm machinery, equipment, and livestock by the Production Credit Association; left the farm home in Dakota County, Nebraska; and took a full time job with a railroad in Lincoln, Nebraska. Further facts concerning the circumstances of his departure and the conduct of the plaintiff will be discussed later in this opinion.
It is conceded by the parties and indeed it is well settled law in Nebraska that on a holdover farm lease from year-to-year that the landlord is required to give 6 months' notice in order to terminate the tenant's lease for the ensuing year. However, the right of a landlord to reenter in the case of the tenant's abandonment of the premises during the 6 months' period of time required by the notice, is also well established in the law. In Langemeier, Inc. v. Pendgraft, 178 Neb. 250, 132 N.W.2d 880, this court recently stated the rule: "Where the tenant has actually abandoned the premises, the landlord is entitled to reenter and take charge and possession; and, even where he acts too hastily, but in good faith and under circumstances justifying a belief that the premises have been abandoned, he is guilty only of a technical violation of the tenant's contractual rights under the lease." This follows the general *31 rule that where a tenant has actually abandoned the premises, the landlord may reenter and take possession. See 52A C.J.S. Landlord & Tenant § 717, p. 32. And the question of whether a lease has been abandoned so as to confer a right of reentry on the landlord is one of fact to be determined from the facts and circumstances of the case and the intentions of the parties. Langemeier, Inc. v. Pendgraft, supra; 52A C.J.S. Landlord & Tenant § 717, p. 32.
Bearing in mind these rules of law we summarize the calendar of facts and events which lead us to the conclusion that upon the undisputed facts, the plaintiff-tenant had abandoned the premises entitling the intervener-owner landlord and his subsequent tenant to reenter and take possession of the premises. The record reveals these undisputed facts: (1) In early December 1964, some 3 months after the expiration of the time for the required notice, the intervener-landlord discovered that his tenant had converted a portion of his crop share under the leasing arrangement for the preceding year. He advised the plaintiff of this contention and notified him that he could not have possession of the farm for the coming year. (2) The Production Credit Association had a mortgage on the plaintiff's farm machinery, equipment, and livestock and initiated foreclosure. (3) On January 4, 1965, the intervener-landlord mailed to the plaintiff a notice that his tenancy under the lease had been terminated because of the conversion by the plaintiff of part of the farm crop. (4) On January 7, 1965, the intervener-landlord initiated a suit for the conversion of his crop share, which resulted in a substantial judgment in favor of the landlord. (5) As a result of the foreclosure action by the Production Credit Association, the plaintiff tenant entered into an agreement and compromise by which all of his farm machinery, equipment, and livestock were publicly sold on January 12, 1965. (6) On or about this date the plaintiff erected a 2 x 4 across the front door of the tenant house he was occupying and left for admitted full-time employment in the City of Lincoln, Nebraska, about 120 miles distant; the evidence also reveals, that in addition to his full-time employment in the City of Lincoln, the plaintiff also did odd jobs in Lincoln and himself claimed his residence in Lincoln, Nebraska; and at no time were any of these facts or intentions communicated to the landlord-intervener. (7) The plaintiff tenant never contacted nor talked to the landlord after his last conversation with him in December 1964. (8) On January 29, 1965, the owner entered into a lease for the year starting March 1, 1965, with the defendants Bloomfields. (9) On March 25, 1965, the intervener-landlord removed the small amount of furniture and equipment still in the tenant house. Plaintiff had still made no appearance on the premises. (10) Sometime in the spring of 1965 the plaintiff did contact the new tenant and offered to sell him a hot water heater in the house and some window drapes. The new tenant purchased the hot water heater from the plaintiff but did not buy the drapes.
We do not feel that any particular circumstances recited herein would alone establish abandonment or would be conclusive as a matter of law. However, taken together, this court is of the opinion that they conclusively establish an intention on the part of the plaintiff tenant to abandon the lease and the premises. Particularly significant is the removal of the plaintiff's residence to Lincoln, Nebraska, and engaging in full-time employment and activity which would make it impossible for him to farm the premises. It is conceivable, of course, that the plaintiff could farm the premises (in light of modern farming methods) by the rental of equipment and hired help. But no such contention was made by the plaintiff and the record is devoid of any evidence to even remotely establish such facts. The loss of all of his farm equipment, machinery, and livestock tied together in time sequence with his immediate removal to Lincoln, Nebraska, and a full-time job, is more indicative as to his *32 intentions than his now retrospectively declared intentions. The other acts and circumstances, harmonizing in point and time sequence, including the sale of the hot water heater and the offer to sell the drapes in the tenant house, support this conclusion.
We come to the conclusion that the plaintiff had abandoned the premises prior to the reentry date of March 1, 1965, and that the landlord had entered in good faith and made a lease with a new tenant. Consequently under the principles of law announced herein, the plaintiff must fail in his action for forcible entry and detainer to regain possession of the premises. The judgment of the district court is reversed and the cause remanded with directions to find for all of the defendants and dismiss plaintiff's complaint at the plaintiff's costs.
Reversed and remanded with directions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600466/ | 45 Wis.2d 432 (1970)
173 N.W.2d 175
STATE EX REL. CULLEN, Appellant,
v.
CECI, County Judge, Respondent.[*]
No. 5.
Supreme Court of Wisconsin.
Argued December 2, 1969.
Decided January 9, 1970.
*438 For the appellant there were briefs by Shellow, Shellow & Coffey and Robert H. Friebert, all of Milwaukee, and oral argument by Mr. Friebert.
For the respondent the cause was argued by William A. Platz and Mary V. Bowman, assistant attorneys general, with whom on the brief were Robert W. Warren, attorney general, Robert P. Russell, corporation counsel of Milwaukee county, and Gerard S. Paradowski, assistant corporation counsel.
HEFFERNAN, J.
After perfection of the appeal in this case, but prior to the time of argument, this court decided on May 6, 1969, State ex rel. Dore v. Stoltz (1969), 42 Wis. 2d 534, 167 N. W. 2d 214. This case held that:
"A writ of prohibition will not be issued when there is an adequate remedy by appeal or otherwise. See Drugsvold v. Small Claims Court (1961), 13 Wis. 2d 228, 231, 108 N. W. 2d 648. This court has long approved the use of habeas corpus to challenge the validity of the complaint and the validity of a bindover, and we now declare that this is the sole remedy for this type of situation." (p. 538)
On the basis of this language of Dore, the state moved for a summary affirmance of the trial court's order denying the writ of prohibition.
The motion of the state was denied without prejudice and the parties to the appeal were directed to further brief the matter and to argue the applicability of Dore at the same time the appeal from the order denying the writ of prohibition was to be heard. The parties have done so.
The rule of Dore is perfectly clear. It holds that a writ of prohibition will not issue when there is another *439 adequate remedy for testing the sufficiency of a complaint and the validity of a bindover. This is, of course, not new law. It is an almost "boiler plate" capsulation of the traditional stand of this court. In the post-Dore case of State ex rel. Jefferson v. Roraff (October 3, 1969), 44 Wis. 2d 250, 170 N. W. 2d 691, the discussion of Dore was avoided, since this case was then pending, but Jefferson was based on exactly the same rationale as Dore, i.e., that prohibition is an extraordinary writ that ousts a trial court of jurisdiction, and therefore it should be used only when it becomes necessary to exercise the superintending powers of this court, as distinguished from its appellate function. We pointed out that such an exigency exists only if there is no other adequate remedy available and this court's failure to act will result in extraordinary hardship. See also In re Petition of Pierce-Arrow Motor Car Co. (1910), 143 Wis. 282, 127 N. W. 998; State ex rel. Fieldhack v. Gregorski (1956), 272 Wis. 570, 76 N. W. 2d 382; State ex rel. Joyce v. Farr (1940), 236 Wis. 323, 295 N. W. 21; State ex rel. Fourth Nat. Bank v. Johnson (1899), 103 Wis. 591, 79 N. W. 1081, 51 L. R. A. 33; State ex rel. Beaudry v. Panosian (1967), 35 Wis. 2d 418, 151 N. W. 2d 48; State ex rel. Kiekhaefer v. Anderson (1958), 4 Wis. 2d 485, 90 N. W. 2d 790; State ex rel. Ampco Metal v. O'Neill (1956), 273 Wis. 530, 78 N. W. 2d 921; State ex rel. Gaynon v. Krueger (1966), 31 Wis. 2d 609, 143 N. W. 2d 437; State ex rel. La Follette v. Circuit Court (1967), 37 Wis. 2d 329, 155 N. W. 2d 141; State ex rel. Schulter v. Roraff (1968), 39 Wis. 2d 342, 159 N. W. 2d 25; see also James R. Cole, Extraordinary Writs and Their Use by the Wisconsin Supreme Court to Supervise Inferior Courts, University of Wisconsin Student Bar Journal, Vol. 3, Spring, 1969, p. 155.
Dore merely spelled out what has been apparent from past cases that alleged jurisdictional errors that challenge *440 the sufficiency of a complaint or of the evidence adduced at a preliminary examination are reachable by the writ of habeas corpus and, in accordance with past precedent, prohibition is not then available. Dore codified the clear intendment of past cases, i.e., that a defendant who contends that a complaint is legally insufficient, or the evidence adduced at a preliminary is inadequate, has the remedy of objecting to the jurisdiction of the court by petitioning for habeas corpus and by appealing to the court where such appeal lies. When such remedy exists, there is no occasion to invoke the writ of prohibition, and a court will not grant such writ.
Appellant herein does not argue that habeas corpus is not available to him nor that it would not adequately serve his purpose of exploring the sufficiency of the complaint or challenging the state's jurisdiction by way of federal preemption. Rather, he seeks to distinguish the rule of Dore by limiting it solely to post-bindover situations or, failing that, to have this court reconsider Dore and overrule it. We decline to do either. Dore was aimed at a patent abuse of the writ of prohibition which has resulted in a burgeoning of appeals to this court, as well as the disruption of proceedings in trial courts. The purpose of Dore was to make clear that prohibition would not be available here or in any other court when an adequate remedy, by habeas corpus or otherwise, was available. While Dore concerned a post-bindover challenge, its rationale is not limited to that situation. The vice that it is aimed at is equally pernicious where the petition for prohibition is improperly brought before bindover.
Accordingly, the rule of Dore is not to be limited in the manner that appellant contends. Prohibition will not lie whenever habeas corpus or other adequate remedy is available.[2]
*441 While the conclusion reached above disposes of this appeal, it does not dispose of the issues raised by the appellant which now become pertinent to any further remedies that he may seek. We therefore, since these issues have been exhaustively briefed and argued, feel obliged to discuss them.
We are satisfied that the complaint is sufficient to confer jurisdiction upon the magistrate to hold a preliminary examination.[3]
*442 The complaint at this point need not contain all the allegations of fact which if proved would be necessary to convict. The test to be applied at this stage is the same as that which is required for the issuance of a warrant:
"... enough information [shall] be presented to the Commissioner to enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process." Jaben v. United States (1965), 381 U. S. 214, 224, 85 Sup. Ct. 1365, 14 L. Ed. 2d 345.
We do not agree, however, with the contention of the state that a complaint issued subsequent to a valid arrest need not state probable cause. While its purpose is *443 no longer to authorize the seizure of the person of the defendant, it is the jurisdictional requirement for holding a defendant for a preliminary examination or other proceedings. The face of the complaint and any affidavits annexed thereto must recite probable cause for defendant's detention. Pillsbury v. State (1966), 31 Wis. 2d 87, 142 N. W. 2d 187, upon which the state relies, goes no further than the commonsense holding that there need not be the issuance of another arrest warrant when a person is already being held in custody under another charge.
Pillsbury makes it quite clear that the jurisdictional requisite for a preliminary hearing is the complaint not the warrant. Of course, if there is an appearance before a judge having subject matter jurisdiction to try the case, jurisdiction may be acquired by arraignment on the information even in absence of a complaint.
A complaint at this stage, as at any other, must meet the test of "probable cause." Contrary to the contention of the state, the requirement of "probable cause" did not have its genesis in State ex rel. White v. Simpson (1965), 28 Wis. 2d 590, 137 N. W. 2d 391. In Wisconsin law it is as old as the state's constitution, art. I, sec. 11, which is identical to the parallel provisions of the fourth amendment to the United States Constitution:
"Wis. Const., art. I, sec. 11:
"Searches and seizures. SECTION 11. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."
In State v. Brockman (1939), 231 Wis. 634, 637, 283 N. W. 338, by no means an early Wisconsin case on the subject, this court said:
*444 "`The term probable cause has a well-defined meaning in the law, which is the existence of such facts and circumstances as would excite an honest belief in a reasonable mind, acting on all the facts and circumstances within the knowledge of the magistrate, that the charge made by the applicant for the warrant is true...."
State ex rel. White v. Simpson merely clarified the existing law and held that probable cause must be determined by an impartial magistrate and could not be determined by a prosecuting attorney. The White v. Simpson problem is not pertinent to this case.
There is no contention that the allegations reciting the statutes violated do not skeletally constitute proper charges. Rather, appellant's attack is directed to the alleged inadequacy of the portion of the complaint which purports to answer the White v. Simpson question (p. 594), "What makes you think that the defendant committed the offense charged?" In White we relied upon the Jaben standard for a reply to that question. The information presented to the magistrate by the complaint, affidavit, or testimony must be sufficient for him to conclude that "the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process." Jaben, supra, page 224.
We would not conclude, nor are we obligated at this stage to conclude, that the facts alleged in the complaint, even though proved, would be sufficient to sustain a conviction. It is enough that a fair-minded magistrate could conclude that the facts and circumstances alleged justify further criminal proceedings and that the charges are not merely capricious. Using this test, we are of the opinion that an impartial magistrate could conclude that there was probable cause to justify holding Cullen for further proceedings. Admittedly, the complaint and its underlying affidavit evince miserable draftsmanship and confusing syntax, but a fair reading of the document *445 makes it clear that a group of persons, of whom Cullen was one, entered into the selective service headquarters without consent, took therefrom certain draft records and burned them in a nearby park, and that Cullen, together with other members of the group, joined hands and sang while the documents were burning. We conclude that these assertions are sufficient to charge the defendant with the crimes alleged.
Appellant, however, contends that the answer to the question of State ex rel. Evanow v. Seraphim (1968), 40 Wis. 2d 223, 230, 161 N. W. 2d 369, "Who says so?" is inadequately answered. He objects to the complaint because it is based upon hearsay. This, of course, is not fatal if the complaint or its supporting affidavit shows the reliability of the hearsay information. State ex rel. White v. Simpson, supra; Giordenello v. United States (1958), 357 U. S. 480, 78 Sup. Ct. 1245, 2 L. Ed. 2d 1503; Aguilar v. Texas (1964), 378 U. S. 108, 84 Sup. Ct. 1509, 12 L. Ed. 2d 723; United States v. Ventresca (1965), 380 U. S. 102, 85 Sup. Ct. 741, 13 L. Ed. 2d 684; and Jones v. United States (1960), 362 U. S. 257, 80 Sup. Ct. 725, 4 L. Ed. 2d 697.
Here, of course, the person who made the complaint saw Cullen standing with others and exultantly singing as the draft records burned. He also stated that he saw the material destroyed and believed it to be of a value of more than $100. This was not hearsay. It was the direct eyewitness testimony of the affiant.
Hearsay is, however, an important underpinning of the complaint. Margaret Bauer, a cleaning lady on the premises, stated that the entry was without consent, that the keys were taken from her, and that the papers were removed from the office.
Lawrence Hartzheim, Jr., saw the records being removed from the office and ignited in the park.
*446 Colonel Courtenay, director of the Wisconsin selective service, stated that the value of the property damaged was several thousand dollars.
We do not quarrel with appellant's assertion that Mr. Justice BYRON WHITE in the concurrence to Spinelli v. United States (1969), 393 U. S. 410, 89 Sup. Ct. 584, 21 L. Ed. 2d 637, properly stated the rule that hearsay relied upon in support of a complaint requires some basis for crediting its reliability whether the informants are named or not. Merely naming the informant does not satisfy that requirement, but a statement in the complaint which shows why credence should be placed in his assertion does.
A full statement of Mr. Justice WHITE'S rationale explains the validity of this position:
"Neither should the warrant issue if the officer states that there is gambling equipment in a particular apartment and that his information comes from an informant, named or unnamed, since the honesty of the informant and the basis for his report are unknown. Nor would the missing elements be completely supplied by the officer's oath that the informant has often furnished reliable information in the past. This attests to the honesty of the informant, but Aguilar v. Texas, supra, requires something moredid the information come from observation, or did the informant in turn receive it from another? Absent additional facts for believing the informant's report, his assertion stands no better than the oath of the officer to the same effect." (p. 424)
Here the fact is that the complaint shows that all whose information was relied upon were eyewitnesses to the portion of the event they related to the sworn complainant. If hearsay is to be credited at all for this limited purpose, what better basis can there be than that of eyewitness testimony. To use the term of Mr. Justice WHITE, the hearsay was clearly based upon "observation."
*447 We, of course, do not agree with the statement of the state that merely naming the informant without a showing of why his information was reliable would be sufficient. The state's brief contains the amazing assertion that, "If the magistrate had had any doubts regarding the informants' credibility, their identification by name in the complaint permitted the magistrate to request further information from them." This, of course, may be factually true, but it misconceives the function of an impartial magistrate and the purpose of a complaint, at least in instances where the complaint is used as the sole source of a magistrate's information. Since there is no evidence that these hearsay informants were brought before a magistrate, we must assume they were not before him. There is no obligation on the magistrate to conduct an investigation to verify the contents of a complaint. This is the duty of the state, and if the state fails to put sufficient facts before the magistrate, the complaint must fail even though clews and leads that could provide sufficient information are revealed in the complaint.
It should also be noted that the complaint charges Cullen as a principal, not on the theory that he directly committed the crimes charged, but on the theory that he was concerned in their commission as defined in sec. 939.05, Stats. Under that statute, an accomplice or one not directly committing the crime under the circumstances permitted by that statute may be charged as a principal.
A fair reading of the complaint leads to the conclusion that the facts alleged show probable cause for further criminal procedures against Michael Cullen under the rationale of sec. 939.05, Stats., even though it could arguably be claimed that the information therein would not necessarily show probable cause that he directly committed the crimes charged. The complaint is sufficient.
*448 An additional ground upon which appellant based his petition for writ of prohibition was that the state was without jurisdiction to prosecute the crimes charged, because the federal government had preempted the field with respect to interference with the operation of the selective service system.
Appellant's argument is founded upon the "supremacy clause" of the Constitution of the United States, art. VI, clause 2, which provides:
"This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding."
Mr. Chief Justice MARSHALL explicated the supremacy clause in McCulloch v. Maryland (1819), 17 U. S. (4 Wheaton) 316, 4 L. Ed. 579, and Gibbons v. Ogden (1824), 22 U. S. (9 Wheaton) 1, 6 L. Ed. 23. McCulloch, although not a preemption case in the sense now understood, discussed the problem of dual sovereignty in our federal system. The case presented the question of whether the state of Maryland could rightly tax a Maryland branch of the Bank of the United States. In his 120 page opinion, the chief justice concluded:
"The Court has bestowed on this subject its most deliberate consideration. The result is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the constitution has declared." (p. 436)
Gibbons v. Ogden posed the question of the power of the state of New York to regulate the operation of federally *449 licensed ships in coastal waters. In striking down the New York statute, Mr. Chief Justice MARSHALL said:
"The nullity of any act, inconsistent with the constitution, is produced by the declaration, that the constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such acts of the State Legislatures as do not transcend their powers, but, though enacted in the execution of acknowledged State powers, interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution, or some treaty made under the authority of the United States. In every such case, the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it." 22 U. S. (9 Wheaton) 210, 211.
A leading contemporary case on federal preemption and the supremacy clause is Pennsylvania v. Nelson (1956), 350 U. S. 497, 76 Sup. Ct. 477, 100 L. Ed. 640. A Pennsylvania act provided criminal penalties for seditious activities directed at either the state of Pennsylvania or the United States. The Smith Act passed by Congress prohibited identical activities. Nelson was convicted under the Pennsylvania act for sedition against the government of the United States. The Pennsylvania act, insofar as it proscribed sedition against the federal government, was struck down by the state supreme court and affirmed by the United States high court with the following reasons:
"First, `[t]he scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.'" Pennsylvania v. Nelson, supra, at 502, citing Rice v. Santa Fe Elevator Corp. (1947), 331 U. S. 218, 230, 67 Sup. Ct. 1146, 91 L. Ed. 1447.
"Second, the federal statutes `touch a field in which the federal interest is so dominant that the federal system [must] be assumed to preclude enforcement of *450 state laws on the same subject.'" Pennsylvania v. Nelson, supra, at 504, citing Rice v. Santa Fe Elevator Corp., supra, at 230, citing Hines v. Davidowitz (1941), 312 U. S. 52, 61 Sup. Ct. 399, 85 L. Ed. 581.
"Third, enforcement of state sedition acts presents a serious danger of conflict with the administration of the federal program." Pennsylvania v. Nelson, supra, at 505.
The appellant asserts that all three of the above grounds are applicable to the instant case and preempt the state's jurisdiction to prosecute crimes peripherally involving the selective service system of the United States.
While in a proper case the criteria urged by appellant are to be given due recognition, we conclude that in the instant case, where the state's conduct neither duplicates nor interferes with the national selective service, the assertions are inconsistent with the constitutional history of our federalism and its underlying concept of dual sovereignties. These doctrines were expounded by Mr. Chief Justice WAITE in United States v. Cruikshank (1875), 92 U. S. 542, 549-551, 23 L. Ed. 588:
"We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other. Slaughter-House Cases, 16 Wall. 74.
"... In the formation of a government, the people may confer upon it such powers as they choose. The government, when so formed, may, and when called upon should, exercise all the powers it has for the protection of the rights of its citizens and the people within its jurisdiction; but it can exercise no other. The duty of a government to afford protection is limited always by the power it possesses for that purpose." 92 U. S. at 549.
*451 "The people of the United States resident within any State are subject to two governments: one State, and the other National; but there need be no conflict between the two. The powers which one possesses, the other does not. They are established for different purposes, and have separate jurisdictions. Together they make one whole, and furnish the people of the United States with a complete government, ample for the protection of all their rights at home and abroad. True, it may sometimes happen that a person is amenable to both jurisdictions for one and the same act. Thus, if a marshal of the United States is unlawfully resisted while executing the process of the courts within a State, and the resistance is accompanied by an assault on the officer, the sovereignty of the United States is violated by the resistance, and that of the State by the breach of peace, in the assault. So, too, if one passes counterfeited coin of the United States within a State, it may be an offence against the United States and the State: the United States, because it discredits the coin; and the State, because of the fraud upon him to whom it is passed. This does not, however, necessarily imply that the two governments possess powers in common, or bring them into conflict with each other. It is the natural consequence of a citizenship which owes allegiance to two sovereignties, and claims protection from both. The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws. In return, he can demand protection from each within its own jurisdiction."
The state of Wisconsin charged the appellant with the crimes of burglary, theft, and arson. It goes without saying that the perpetration of these crimes results in a breach of the peace of the sovereign state of Wisconsin, and its citizens are justified in demanding the state's protection against such breach. Likewise, he who causes the breach, owing allegiance to two sovereignties, "must pay the penalties which each exacts for disobedience to its laws."
*452 The appellant relies upon Pennsylvania v. Nelson, supra, for his three criteria of federal preemption, but conspicuously fails to consider the case of Gilbert v. Minnesota (1920), 254 U. S. 325, 41 Sup. Ct. 125, 65 L. Ed. 287, cited with approval therein. In Gilbert, a Minnesota statute made it unlawful "to interfere with or discourage the enlistment of men in the military or naval forces of the United States or of the State of Minnesota." The defendant in Gilbert was convicted, fined $500, and imprisoned one year for certain utterances against the United States' involvement in the first World War. In addition to a first amendment challenge, not pertinent here, it was argued that "all power of legislation regarding the subject matter contained in the statute [was] conferred upon Congress and withheld from the States." Gilbert, supra, at 327. The court stated that the Minnesota statute:
"... may be supported as a simple exertion of the police power to preserve the peace of the State. As counsel for the State say, `The act under consideration does not relate to the raising of armies for the national defense, nor to rules and regulations for the government of those under arms. It is simply a local police measure, aimed to suppress a species of seditious speech which the legislature of the State has found objectionable. If the legislature has otherwise power to prohibit utterances of the character of those here complained of, the fact that such suppression has some contributory effect on the federal function of raising armies is quite beside the question.' And the State knew the conditions which existed and could have a solicitude for the public peace, and this record justifies it. Gilbert's remarks were made in a public meeting. They were resented by his auditors. There were protesting interruptions, also accusations and threats against him, disorder and intimations of violence. And such is not an uncommon experience. On such occasions feeling usually runs high and is impetuous; there is a prompting to violence and when violence is once yielded to, before it can be quelled, tragedies may be enacted. To preclude such result or a danger of it is a proper exercise *453 of the power of the State. Presser v. Illinois, 116 U. S. 252, 267." Gilbert, supra, at 331, 332.
The Minnesota statute upheld by Gilbert, proscribing interference with federal conscription, comes much closer to encroaching upon a pervasive scheme of congressional regulation in a field dominated by the federal system than do the very basic police-power statutes of the state of Wisconsin in respect to burglary, theft, and arson, which only incidentally touch upon the conduct which is also proscribed by the federal law as interfering with the selective service system.
Uphaus v. Wyman (1959), 360 U. S. 72, 79 Sup. Ct. 1040, 3 L. Ed. 2d 1090, upheld the exercise of the state's police power in the face of a preemption challenge where the question was much closer than that presented by this appeal. The New Hampshire Subversive Activities Act authorized investigations of people thought to be subversive and gave contempt citation powers to the state commission conducting the investigation. The supreme court upheld the contempt conviction of a person under investigation who had refused to produce certain records. In response to the appellant's contention that Pennsylvania v. Nelson, supra, was controlling and that the New Hampshire Act was superseded by the Smith Act, the court said:
"The argument is that Nelson, which involved a prosecution under a state sedition law, held that `Congress has intended to occupy the field of sedition.' This rule of decision, it is contended, should embrace legislative investigations made pursuant to an effort by the Legislature to inform itself of the presence of subversives within the State and possibly to enact laws in the subversive field. The appellant's argument sweeps too broad. In Nelson itself we said that the `precise holding of the court ... is that the Smith Act ... which prohibits the knowing advocacy of the overthrow of the Government of the United States by force and violence, supersedes the enforceability of the Pennsylvania Sedition Act *454 which proscribed the same conduct.' (Italics supplied.) 350 U. S., at 499. The basis of Nelson thus rejects the notion that it stripped the States of the right to protect themselves. All the opinion proscribed was a race between federal and state prosecutors to the courthouse door. The opinion made clear that a State could proceed with prosecutions for sedition against the State itself; that it can legitimately investigate in this area follows a fortiori." (p. 76)
The Wisconsin burglary, theft, and arson statutes do not specifically prohibit the felonious breaking into of federal selective service offices, theft from a selective service employee, nor the burning of selective service property. These statutes do not proscribe the "same conduct" as that made criminal by the federal statutes. The instant case is unlike Pennsylvania v. Nelson, where the very conductsedition against the United Stateswas prohibited by the Pennsylvania law as well as by the federal law. To hold that the federal law preempts Wisconsin prosecution under these three fundamental police power statutes would be to strip the state of Wisconsin of its right and duty to protect its citizens.
The appellant has cited no authority realistically analogous to the facts of this case which call for the suspension of such basic state criminal statutes as those involved therein. Nor is the rationale of the cases relied upon convincing here. He contends, however, that the state failed to discuss the case of Chicago v. Atchison, Topeka & Santa Fe Ry. (1958), 357 U. S. 77, 78 Sup. Ct. 1063, 2 L. Ed. 2d 1174. The Santa Fe Case adds little to appellant's argument. Therein, a city of Chicago ordinance required a new taxi service, which operated between the major railroad terminals in the city, to obtain a certificate of convenience and necessity from the city. The United States Supreme Court held that the federal Interstate Commerce Act precluded the city from enforcing its ordinance. The court cited the section of the *455 federal act providing that motor vehicle transportation between terminals was to be regarded as railroad transportation and to be subject to the same comprehensive scheme of regulation as the railroads under the Interstate Commerce Act. The court explained its ruling:
"National rather than local control of interstate railroad transportation has long been the policy of Congress. It is not at all extraordinary that Congress should extend freedom from local restraints to the movement of interstate traffic between railroad terminals. Serious impediments to the efficient and uninterrupted flow of this traffic might well result if the City could deny the railroads the right to transfer passengers by their own vehicles or by those of their selected agents." Chicago v. Santa Fe, supra, at 87, 88.
Ever since Gibbons v. Ogden, supra, the supreme court has zealously guarded the federal government's interest in the free and unimpeded flow of interstate commerce. The Santa Fe Case is dubious authority for suspending Wisconsin's burglary, theft, and arson statutes.
Even in Santa Fe, where the federal interest in maintaining the unimpeded flow of interstate commerce was the paramount consideration, the court recognized that state police power functions necessary to preserve domestic order within the state remained viable and in full force. The court therein said:
"Of course the City retains considerable authority to regulate how transfer vehicles shall be operated. It could hardly be denied, for example, that such vehicles must obey traffic signals, speed limits and other general safety regulations. Similarly the City may require registration of these vehicles and exact reasonable fees for their use of the local streets. [citing cases] All we hold here ... is that the City has no power to decide whether Transfer can operate a motor vehicle service between terminals for the railroads because this service is an integral part of interstate railroad transportation authorized and subject to regulation under the Interstate Commerce Act." (pp. 88, 89)
*456 Mr. Justice REED, dissenting in Pennsylvania v. Nelson, supra, 350 U. S. 497, 514, relied upon the statement of Mr. Chief Justice MARSHALL in Cohens v. Virginia (1821), 19 U. S. (6 Wheaton) 264, 443, 5 L. Ed. 257:
"`To interfere with the penal laws of a State, where they ... have for their sole object the internal government of the country, is a very serious measure, which Congress cannot be supposed to adopt lightly, or inconsiderately .... It would be taken deliberately, and the intention would be clearly and unequivocally expressed.'"
We need not agree with Mr. Justice REED in the application of that standard to the facts of Nelson; however, as measured against the facts of the present case, it is apparent that there was no implied intent to void the basic police powers of the state even though sanctions pursuant to such powers were sought to be applied for crimes concerning property of the United States. Can it seriously be argued that the arson laws of the state should not be enforced when a fire is deliberately set, as alleged here, in a public park of the city of Milwaukee.
The crime against the state of Wisconsin is the illegal burning of the property of anotherany property, irrespective of the ownership thereofwith all the attendant risks to the general public and the affront to the peace and dignity of the state. The fact that the property was that of the selective service, a branch of the federal government, may well constitute, as alleged, a federal crime, but the crime against the peace and dignity of the state of Wisconsin is a separate and distinct felony and has for its purpose the protection of an interest different than that protected by federal law.
While the appellant abjures any confusion between the doctrine of preemption and double jeopardy, we are constrained to conclude that the nexus of his argument since it is clear that there is no preemption in the classical sense of Pennsylvania v. Nelsonis that it is violative of *457 the constitution to twice punish a defendant for the consequences of a single act. In effect, Cullen urges that he ought not be punished or threatened with punishment by both the state of Wisconsin and the United States for a single act. The argument, although asserted only obliquely, is a powerful one, and carries with it the appealing argument that it is fundamentally unfair to punish a man twice for a single act.
We can only say that our law has not yet concluded that punishment by separate sovereignties for the same act constitutes double jeopardy. While Benton v. Maryland (1969), 395 U. S. 784, 89 Sup. Ct. 2056, 23 L. Ed. 2d 707, reversed Palko v. Connecticut (1937), 302 U. S. 319, 58 Sup. Ct. 149, 82 L. Ed. 288, and a state now may not twice place a defendant in jeopardy for a single crime, significantly, Bartkus v. Illinois (1959), 359 U. S. 121, 79 Sup. Ct. 676, 3 L. Ed. 2d 684, was not reversed; and as federal law now stands, a defendant may be placed in jeopardy for the same crime by separate state and federal prosecutions. It should be noted that the vigorous dissent of Mr. Justice BRENNAN in Bartkus was occasioned primarily by the fact that the federal authorities had urged and in fact initiated the state prosecution after the case against Bartkus had been dismissed in the federal court. The principal vice, though not the only one, that Mr. Justice BRENNAN saw in Bartkus was not that the state had commenced a separate prosecution, but that in fact the second prosecution was at the behest of the Federal Bureau of Investigation and was a "second kick at the cat" by the United States Attorney and not a bona fide state prosecution. There is not a penumbra that such is the case herein. The writer of this opinion, speaking for himself and not necessarily for the court, nonetheless perceives a fundamental unfairness of punishing a defendant twice for the same act, but this state of affairs has not arisen. Cullen has not yet been bound over to the state trial court, and the federal violation *458 is at the immediate post-indictment stage. We need not postulate as yet unresolved constitutional inequities that could arise in the event of conviction in both jurisdictions. Nor do we anticipate that it would be impossible for a defendant convicted under these circumstances to serve a state and federal sentence concurrently in the same institution.
We are satisfied under the doctrine of Dore that the alternative writ of prohibition should be quashed and that the order of the circuit court must be affirmed.
By the Court.Order affirmed.
NOTES
[*] Motion for rehearing denied, without costs, on March 3, 1970.
[2] In passing, an apparent misunderstanding of Dore should be corrected. In Dore, we stated: "By making a motion to dismiss before the county court, however, the petitioner waived any objection to the jurisdiction of that court." (p. 540)
In the context of Dore this statement of law was obviously correct (State ex rel. Offerdahl v. State (1962), 17 Wis. 2d 334, 116 N. W.2d 809) where the defendant moved to dismiss on the ground that the evidence at the preliminary hearing was insufficient. In Dore there was also a motion to dismiss because the allegations of the complaint were insufficient to confer jurisdiction. The Dore holding that a motion to dismiss waived all objections to the court's jurisdiction obviously referred only to the motion to dismiss for insufficiency of the evidence. That motion invokes the jurisdiction of the court to exercise its judicial powers to examine the testimony to determine whether it is sufficient to commit a defendant for trial.
[3] The complaint reads as follows:
"Whereas, Gary Grundy, being first duly sworn on oath, states upon information which he verily believes to be true to David J. Cannon, that Michael Denis Cullen, the abovenamed defendant on the 24th day of September, A. D., 1968, in the County of Milwaukee, Wisconsin,
"(1) in company with others, did feloniously and burglariously intentionally enter a building, to-wit: the offices of Selective Service, located at 135 West Wells Street, City and County of Milwaukee, State of Wisconsin, without consent of the persons in lawful possession of said premises, and with intent to steal therein, contrary to Sections 943.10 (1) (a) and 939.05 of the statutes;
"(2) in company with others, did feloniously intentionally take and carry away property of another, without consent of the person in possession thereof, by removing keys from the apron pocket on the person of one Margaret Bauer, cleaning lady, on the premises at 135 West Wells Street, City and County of Milwaukee, State of Wisconsin, contrary to Sections 943.20 (1) (a) and (3) (d) 2 and 939.05 of the statutes; and
"(3) in company with others, did feloniously, by means of fire, intentionally damage property, to-wit: Selective Service records, the property of Selective Service, valued in excess of One Hundred Dollars, without the consent of Selective Service, contrary to Sections 943.03 and 939.05 of the statutes, and all against the peace and dignity of the State of Wisconsin, and prays that the said Michael Denis Cullen may be dealt with according to law.
"Complainant further states that his information is based upon observation of defendant, together with a group of 13 others, who locked arms after placing records which were removed from Selective Service office, at 135 West Wells Street, City and County of Milwaukee, State of Wisconsin, without consent of owners as described by Mrs. Margaret Bauer, cleaning lady on premises who stated that two priests came in, took key from her and removed records from office; further, complainant's information is based on statement of Lawrence Hartzheim, Jr., who stated he saw a group move bags of records from building, said bags being emptied and liquid then placed on papers and then lighted with a match, and then the 14 persons locking arms and singing until police arrived, and being in same position when complainant arrived; complainant further states he believes value of said records to be more than $100, in that he personally observed said material, and statement by Colonel Courtenay, director of Selective Service, who stated the value of damaged materials to be several thousand dollars." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600511/ | 120 F.Supp. 674 (1954)
SMITH et al.
v.
ONYX OIL & CHEMICAL CO.
Civ. A. No. 1333.
United States District Court D. Delaware.
April 2, 1954.
*675 Arthur G. Logan, of Logan, Marvel & Boggs, and Stephen E. Hamilton, Jr., Wilmington, Del., for plaintiffs.
Arthur G. Connolly and Januar D. Bove, Jr., of Connolly, Cooch & Bove, Wilmington, Del., for defendant.
LEAHY, Chief Judge.
1. This is an action for breach of contract. Plaintiffs seek damages for loss of profits and expenses incurred because of repudiation by defendant of the agreement.
Plaintiffs, Laurence C. Smith and Laura C. Smith, are partners trading as Laurence C. Smith Co. in Syracuse, New York. The firm has been for years engaged in distributing dry cleaning supplies and equipment to establishments, laundries, institutions, hospitals and laundermats.
Defendant Onyx is a Delaware corporation. It has been for 43 years engaged in the manufacture and sale of chemical products. It is a leading company in the manufacture of chemicals for use in the textile finishing business. Its gross sales in 1949 were approximately $3,000,000. In 1949, Onyx was not in the dry cleaning industry.
But in that year there was a need for a sizing product which dry cleaners *676 could use when they wet washed clothes to clean them. The evidence shows most fabrics have a finish added at the mill which often is removed when they are wet washed leaving a rather raggedy piece of goods, and, in order to make the fabric feel new again, sizing is used to put back into the fabric what it had in it before. This gives it drape and body.
At the suggestion of Fred G. Harris, who was with his brother Roy Harris in the dry cleaning business and also the chemical business in Cortland, New York, two representatives of Onyx called on plaintiff Smith in Syracuse, New York, in August of 1949, in an effort to get him to promote the sale in the dry cleaning field of two products manufactured by Onyx, which it was believed would supply the need for a sizing in the wet cleaning division of the dry cleaning industry. The two representatives of Onyx were Paul D. Jacobs and Stanley A. Trezise.
Smith agreed to arrange for a demonstration in Syracuse. In early September 1949, Jacobs and Trezise returned to Syracuse and demonstrations were conducted in three dry cleaning establishments in Syracuse with the two Onyx products. The two products were Resin 362 and Onyxsan HSB. The demonstrations consisted of mixing the two products after one had been heated and emersing garments which had been wet washed into the mixture. Demonstrations disclosed the mixture of the two products produced results. It became obvious in order to interest operators in the dry cleaning industry to use the mixture, it would be necessary to combine the two products into a single product and package it as a single product for sale. Smith requested Onyx to try to combine the two products into one so as to have a saleable product. Onyx promised Smith they would go back to their plant and "attempt to combine them (the two products) into a marketable product."
On September 9, 1949, Trezise wrote to Smith and said:
"Paul (Jacobs) is now at work on compatibility and dilutibility tests with a view toward making the best stock solution. We should have some results in the near future. It may be some time, however, discounting a degree of luck before we can find a suitable solvent soluble resin to complete the picture."
On September 21, 1949, Trezise wrote to Smith saying:
"I have your letter of September 14 and am offering my apology for not answering sooner but I have been anticipating the completion of Jacobs' work on the incorporation of the two products in one. We now have that work completed and have a stock solution of the two materials which consists of 16 2/3 % Resin 362, 16 2/3 % Onyxsan HSB and the balance water. This stock solution can be used in the ratio of 66:1 for actual application or in more plain language, 1 1/3 pounds to ten gallons of water."
Onyx worked on combining the two products into the new single product. Jacobs, who had created the formula for it, advised the manufacturing part of Onyx how to make the new product and package it. The combination of the two products into a single product was worked out in the Onyx plant after the second trip of Jacobs and Trezise to Syracuse in September. On October 11, Trezise advised Smith the new mixture was being forwarded, although refrigeration tests were still under way.
After a demonstration at the Harris plant, Jacobs and Trezise drove Smith from Cortland to Syracuse; they were all enthusiastic about the future of the new product. Jacobs was exuberant "because of a job well done". On the trip, the name Revitex was coined for the new product. It was agreed the name Revitex should be the property of Smith; Onyx would manufacture the new product, put Smith's labels on it and ship it to purchasers from Smith. The cost of the new product was calculated. Smith said he would not be interested unless he had an "exclusive" right to sell the new product and Trezise agreed to take that aspect of the matter up with Onyx.
*677 On November 19, Smith wrote Onyx and added as a P. S., "How about drawing up some agreement on the exclusive distribution of this product?" Smith wanted a contract giving him exclusive rights with respect to Revitex in order to protect him and to aid him in making sales. He did not want to spend money on nationwide advertising and promotional efforts without a written contract. Onyx understood this.
A meeting was arranged in the Onyx offices in Jersey City, on December 12, to negotiate a contract between Onyx and Smith for the distribution of Revitex by Smith. Smith and his lawyer, Lawson Barnes, went to the meeting. Onyx was represented by Victor H. Berman, who has been president and treasurer of Onyx for 43 years; Leon P. Brick, vice-president in charge of sales; Albert R. Jenny, vice-president and general sales manager; James H. Tully, an attorney who had represented Onyx for 40 years, and Jacobs and Trezise. When the meeting opened, Trezise made a statement of what had happened to that date and stated the meeting was being held to negotiate a contract. It was understood at the meeting Revitex was Smith's trade name and it consisted of a combination of Resin 362 and Onyxsan HSB, the two products of Onyx.
Prior to the meeting, Barnes (Smith's lawyer) drafted a proposal which Tully read to the meeting, clause by clause. Tully acted as Chairman of the meeting. Berman left the meeting but announced Tully would take things in hand and whatever Smith agreed upon with Tully would be perfectly acceptable to Onyx. At the meeting the parties reached an agreement on all important points and it was decided an agreement between Onyx and Smith should be put in writing and Tully was "empowered" and "commissioned" to prepare a second draft.
Tully did prepare a second draft which he mailed to Barnes on December 16. This second draft embodied all of the important points discussed and agreed upon at the meeting. It gave Smith exclusive rights; it provided for minimum sales; it specified the price, and provided terms. It left undecided the period of credit Smith was to get. In the letter transmitting this second draft to Barnes, Tully said:
"I am sending to you herewith a redraft of the proposed agreement between your client, Mr. Smith, and Onyx Oil & Chemical Co., which I ask you to kindly examine.
"As I see it, the contemplated arrangement between the parties is a simple one, which has for its primary purpose the manufacture and sale by Onyx to Mr. Smith of the Product Revitex at a stated price and the agreement upon the part of Onyx that it will not sell that product to dry cleaners, laundries and dyers serving the dry cleaning and laundry trade during the period of the contract, as long as Mr. Smith makes the minimum purchases after the first year. Correspondingly, Mr. Smith agrees to purchase exclusively from Onyx during the period of the agreement. The marketing of the product in the dry cleaning and laundry trade will be the business and should be the responsibility of Mr. Smith."
On December 20, Jenny, Onyx' sales manager, wrote Smith confirming the understanding reached at the meeting with respect to an area within which Onyx would ship to Smith's accounts without charging Smith for freight. Jenny said:
"As you will recall this matter was discussed after Mr. Tully left the meeting and therefore does not appear in the original draft of the contract."
On December 20, 1949, Barnes wrote Tully enclosing a third draft of the agreement. The third draft contained ten changes. The letter concludes:
"I am hopeful that the above changes will be agreeable to you and your client, and will appreciate further words from you as soon as possible."
On December 22, 1949, Tully wrote Barnes and acknowledged receipt of the *678 letter of December 20, together with the third draft. Tully stated:
"Your various changes have been submitted to our client for its approval and as soon as I hear from them, I shall be pleased to again communicate with you." Tully then discusses the question of insurance for the sale of Revitex.
On December 28, 1949, Tully again wrote Barnes. He stated:
"I have gone over with Onyx your redraft (third draft) of the proposed agreement between it and Laurence C. Smith Co., and it would appear that we are in general accord except for some minor changes which I suggest as follows: * * *."
On January 9, 1950, Barnes wrote Tully concerning the suggestions contained in Tully's letter of December 28. Barnes stated:
"The proposed agreement between Onyx Oil & Chemical Company and Laurence C. Smith Co. has been revised in accordance with the suggestions contained in your most recent letter.
"You will no doubt recall that the sale of the product by Smith to institutions was discussed at the Onyx plant and the same was agreeable to Onyx. Smith desires that such sales be covered in the agreement. * * *
* * * * * *
"To each copy of the agreement kindly attach and mark Schedule A, the map referred to in paragraph one.
"Four copies of the proposed agreement are enclosed. Mr. Smith will be at the Onyx plant sometime between tomorrow and Thursday and could execute the agreement on behalf of Smith while there * * *."
The four copies of the proposed agreement Barnes enclosed in his letter to Tully of January 9, 1950, consisted of four copies of his third draft which he had changed by interlineations embodying the changes suggested by Tully in his letter of December 28, 1949.
On January 11, 1950, Tully wrote Barnes and suggested that sales to institutions should be limited to non-Federal Government institutions. He said Jenny objected to sales to Federal Government institutions because:
"* * * He (Mr. Jenny) pointed out that the Quartermasters' Corps of the Army maintained laboratories where they analyzed all products and might very well purchase the ingredients of Revitex separately. * * *"
Tully then stated:
"Mr. Smith is expected at the Onyx plant tomorrow but because of the necessity of changing the agreement (re institutions), I shall refrain from having it executed by Mr. Smith and Onyx. When I hear from you, and after we have agreed upon the modification of the phrase covering institutions, I shall amend the agreement accordingly and have it executed by Onyx. Then I shall forward it to you for execution by Mr. Smith.
"In the meantime I am asking Mr. Jenny to prepare copies of the map to be known as Schedule `A'".
On January 12, 1950, Barnes wrote to Tully. He stated:
"Smith will agree to such limitation of the term `institutions'. Kindly, therefore, amend the proposed agreement accordingly."
With the exchange of the January 11th and 12th letters between Tully and Barnes, the parties were in complete accord as to what the written contract should contain.
Tully prepared the fourth and final draft of the agreement and sent it to Barnes on January 18, 1950. In his letter transmitting the agreement to Barnes, he said:
"In accordance with your letter of the 12th instant, I have further amended the proposed agreement between Smith and Onyx to the extent of indicating in the second `whereas' clause and in paragraph `2' that the institutional field does not include Federal Government institutions and the Army and Navy. As so corrected, I am sending to you herewith *679 an original and one copy with the request that you kindly have the agreement executed on behalf of the Smith Company by Mr. Smith as partner and return the original to me. I shall have a duplicate original of the agreement executed by Onyx and send it to you upon receipt of the original." (Emphasis supplied.)
Tully forgot to annex Schedule "A" to the agreement which he sent Barnes. This oversight was corrected by a letter from Tully to Barnes dated January 20, 1950:
"I neglected to annex to the agreement Schedule `A' which is referred to in Article `1' of the agreement I sent to you for execution by your client. This was an oversight and due to the fact that Mr. Jenny had assumed the responsibility of preparing the Map and sending it to me. I spoke to him on the telephone just now and learned that he hopes to have it completed by the early part of the coming week. When it is completed I shall annex a copy to the agreement being executed by Onyx before I send the executed copy to you. I shall also obtain your approval of the copy before annexing it to the duplicate original."
On January 17, 1950, Smith had written to Brick, inquiring about the volume clause and whether he might develop the sale of Revitex in two other fields. Brick called Smith on January 19, 1950, to discuss Smith's letter and they came to an accord with respect to the questions raised by Smith. Whereupon, Smith agreed he would sign the final draft of the agreement which Tully had mailed to Barnes on January 18, 1950. Brick confirmed his telephone talk by a letter referring to "* * * the contract sent to Mr. Barnes by Mr. Tully for your signature." (Emphasis supplied.) After the talk with Brick, Smith went to Barnes' office and on January 21st signed the agreement which Tully had put in final form and had requested Barnes to have Smith sign. The date, January 21st, was inserted in Barnes' office.
On January 21, 1950, Barnes wrote Tully and enclosed the signed original of the agreement executed by Smith. This was pursuant to the request of Tully in his letter to Barnes dated January 18, 1950. Barnes stated:
"As requested in your letter of January 18th, the original of the agreement between Onyx and Smith has been executed on behalf of Laurence C. Smith Co. by Laurence C. Smith, partner, and the same is enclosed.
"Kindly have the zone map, referred to in paragraph No. 1, marked `Schedule A', attach the same to the agreement and return to me the duplicate original with said map attached and executed by Onyx."
The final agreement, prepared by Tully, which Smith signed, contained the same minimum provisions as the second draft prepared by Tully after the December 12 meeting. The minimum provisions only called for Smith to take, at the most, $72,000 worth of Revitex per year, which would have been a very small portion of Onyx's business.
On January 23, 1950, Daniel F. Cory, attorney for Harris, wrote Onyx claiming Harris was entitled to a royalty on all Revitex manufactured and sold because Cory claimed Revitex had been devised and worked out by Harris. On January 31, 1950, Tully wrote Barnes telling him of the Harris claim and stating Onyx would consider the matter terminated unless Smith satisfied Harris. From and after the Tully letter of January 31, 1950, Onyx repudiated and refused to recognize the final agreement, prepared by Tully and submitted to Barnes with the request Smith sign it, and which Smith had discussed with Brick and signed on January 21, 1950.
Although Onyx has refused to recognize the contract as being in existence and has refused to accord Smith exclusive rights, it has continued to sell Revitex to Smith at all times. Onyx, in *680 fact, shipped a drum for Smith within a month prior to trial.
After Smith signed the January 21st agreement he went ahead promoting Revitex, taking orders and incurring advertising expenses. Onyx filled the orders. Smith continued pressing sales for about six months and then, after he realized he did not have an exclusive contract, he ceased promotional activities. During the period from November 1949, when Smith placed the first order, until July 1950, when he stopped promotional activities, he sold 470 gallons of Revitex. The orders were from approximately 80 to 90 of his customers and at the time he had 500 customers.
By virtue of the breach of contract, Smith suffered damages through loss of profits. Smith suffered damages through incurring expenses in connection with going forward with the agreement totalling $3,758.79.
2. The parties, I conclude, agreed in principle on terms of a contract in November, though there were details which had not been resolved. Smith started selling and Onyx started taking his orders in November. He was making progress in selling Revitex by December 1949. Absence of a written agreement was retarding his progress and he was unwilling to undertake nationwide promotional and advertising expense without protection.
As I stated, the parties reached an agreement on all important points and most minor ones at the December 12 meeting. Tully was "empowered" and "commissioned" to prepare an agreement. Efforts to complete a memorial of the agreement were intensified after the meeting. Tully and Barnes exchanged drafts. Smith had discussions with Jenny and Brick. All the provisions suggested by either Onyx or Tully were accepted by both parties and were embodied in a final draft prepared by Tully and sent to Barnes on January 18, 1950, for Smith's signature.[1] Tully promised to have the duplicate original executed by Onyx and send it to Barnes upon receipt of the original. Berman and Brick knew Tully had sent Barnes the contract for Smith's signature. Smith executed the agreement and it was then sent to Tully.
At this point in time there was agreement on all terms of the contract and an intention to enter into a contractual relationship. This Court held in Canister Co. v. National Can Corp., D.C.Del., 63 F.Supp. 361, under such circumstances a contract exists.
Defendant seeks to avoid the contract because it did not come into existence and Jacobs, Trezise and Tully were not authorized to act for it in these negotiations.
Both these points are invalid.
Evidence shows Smith wanted a memorial of the agreement to protect him in selling the product. He was unwilling to undertake promotional and advertising expense without protection. Such purposes are unrelated to the question of the formation of a contract. Under such circumstances, contemplation of a written memorial, duly executed, does not prevent the formation of a contract. Restatement, Contracts, § 26; Disken v. Herter, 73 App.Div. 453, 77 N.Y.S. 300, affirmed 175 N.Y. 480, 67 N.E. 1081; Universal Products, Inc. v. Emerson, 6 W.W.Harr. 553, 36 Del. 553, 179 A. 387, 394, 100 A.L.R. 956. In the Disken case, the New York Court of Appeals said:
"Where all the substantial terms of a contract have been agreed on, and there is nothing left for future settlement, the fact, alone, that it was the understanding that the contract should be formally drawn up and put in writing, did not *681 leave the transaction incomplete and without binding force, in the absence of a positive agreement that it should not be binding until so reduced to writing and formally executed."
The presence of Jacobs, Trezise and Tully and the acts which occurred at the meeting of December 12, 1949, show actual authority. Onyx' officers attended this meeting. They were told by Trezise what had happened up to date and thereby they adopted, by not repudiating, the acts of Jacobs and Trezise if such acts had not been previously authorized. And Onyx' officers "empowered" and "commissioned" Tully to prepare a memorial of the agreement. Brick knew Tully had prepared and sent the contract for Smith's signature. In the letter to Smith dated January 20, 1950, he referred to the "contract sent to Mr. Barnes by Mr. Tully for your signature". Since Onyx authorized and directed Tully to prepare a memorial and since it knew he had sent the memorial contained in his letter of January 18, Tully also had actual authority. It would be unlikely for an attorney to prepare and send a draft for signature without authority.
Jacobs, Trezise and Tully also had apparent authority. Their presence at the meeting would indicate they had authority to bind Onyx in the absence of a statement by the officers they did not have such authority. The officers knew and were told Smith had been dealing with Jacobs and Trezise and, as businessmen, must have known that Smith and Barnes would assume Tully was authorized to act for Onyx. An attorney can be an agent. Restatement, Agency, § 1.
3. Onyx seeks to avoid the effect of the contract by asserting it is unenforceable for non-compliance with the Statute of Frauds.[2] This defense has no merit.
The enforceability of the contract between Smith and Onyx is governed by New York law. The facts show it was Onyx who made the offer. Smith accepted the terms in New York; therefore, the contract is considered to have been made in New York. Restatement, Contracts, § 74. Since jurisdiction in this case is based on diversity, the applicable law, including the conflict of law rule, is the law of Delaware. Klaxon Company v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. Delaware applies the Statute of Frauds of the place where the contract was made, Canister Co. v. *682 National Can Corp., supra; Lams v. F. H. Smith Co., 6 W.W.Harr. 477, 178 A. 651, 105 A.L.R. 646, 647, which in this case is New York.[3]
There is compliance because the letter of Tully of January 18, 1950, referring to the contract for Smith's signature, with Brick's letter referring to the same contract, constituted a sufficient memorandum. The memorandum is sufficient because it states each party to the contract, the subject matter of the contract, and terms and conditions of all promises and by whom and to whom the promises are made. Restatement, Contracts, § 207. A memorandum may consist of several writings, only one of which need be signed. Restatement, Contracts, § 208. The only requirement is the signed writing refer to the unsigned writing or it appears from examination of all the writings the signed writing was signed with reference to the unsigned writings.
The facts satisfy these tests. The memorandum consists of the written contract contained in Tully's letter and the letters of Tully and Brick which refer to the written contract. Although the written contract was not signed, the letters were, in one instance by an officer of Onyx (i. e., Brick), and in the other two instances by Tully, its agent. These writings constitute a sufficient memorandum. Restatement, Contracts, § 208; Howell v. Witman-Schwartz Corp., 3 Cir., 1925, 7 F.2d 513; Title Guaranty & Surety Co. v. Lippincott, 252 Pa. 112, 97 A. 201; Ryan v. United States, 136 U.S. 68, 10 S.Ct. 913, 34 L. Ed. 447; Marks v. Cowdin, 226 N.Y. 138, 123 N.E. 139.
In addition, the Statute of Frauds does not even encompass the contract in this case. This is so whether the law of New York, § 85 or the law of New Jersey, N.J.S.A. 46:30-10, § 4, U.S.A., is considered. The rule is if goods (Revitex) are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller's business, the oral agreement is not embraced within the Statute of Frauds. Canister Co. v. National Can Corp., D.C. Del., 63 F.Supp. at page 368. Revitex was to be "tailor-made" and packaged for Smith. The elements were compounded pursuant to his suggestion. Furthermore, Onyx could not have sold this product (Revitex) to anyone else as it was packaged for Smith with his label and trade mark.
4. There were indications at trial Onyx has abandoned the defense the contract unlawfully restrains trade.
This contract does not violate either the Federal Anti-Trust Laws or the New York Statutes. There are no restrictions on the sale of the product by Smith. There is no tie-in arrangement. There is no restriction on the price at which Smith may sell. Nor is there any limit on the amount of Revitex Onyx will supply or Smith will sell to the public. The exclusive right to sell the secret combination, in limited fields, would be valuable to Smith in exploiting his trade mark and trade name, Revitex, but such right does not unlawfully restrain trade.
No court has held a comparable contract unlawfully restrains trade.
Onyx previously contended the contract was an exclusive sales arrangement, not an exclusive agency arrangement. This contention does not help Onyx even if it were valid. Contracts have been held valid under both names. The important thing is arrangements like the one between Onyx and Smith are sustained. Refusals to Sell and Public Control of Competition, 58 Yale Law Journal 1121, 1129 et seq. In fact this District and this Circuit have sustained such arrangements. Camfield Mfg. Co. *683 v. McGraw Elec. Co., D.C.Del., 70 F. Supp. 477, 481; Brosious v. Pepsi-Cola Co., 3 Cir., 155 F.2d 99.
5. Where, as here, the suit is based mainly on loss of profits, it is always difficult to translate the wrong into terms of mathematical exactness. But it is the instruction of Judge Goodrich in Stentor Electric Mfg. Co. v. Klaxon Co., 3 Cir., 115 F.2d 268, when the fact of damage is certain the risk of uncertainty of the exact amount should be thrown upon the wrongdoer instead of upon the injured party. He further says, 115 F.2d at page 273 et seq.: "* * * Two basic principles must be balanced against each other. The reconciliation must be made between the principle that the plaintiff is entitled to compensation even though there is some uncertainty with respect to the amount, and the principle that the jury [or other trier of fact] must be furnished with reasonable guides by which to reach a verdict and will not be allowed to make an uncontrolled guess. On the general point it is said in the Restatement, Contracts, § 331, Comment a: `The requirement of reasonable certainty does not mean that the plaintiff can recover nothing unless he establishes the total amount of his harm; nor does it mean that he cannot get damages unless he proves the exact amount of his harm. The requirement merely excludes those elements of harm that cannot be evaluated with a reasonable degree of certainty. * * * Furthermore, there are cases in which the experience of mankind is convincing that a substantial pecuniary loss has occurred, while at the same time it is of such a character that the amount in money is incapable of proof. In these cases the defendant usually has reason to foresee this difficulty of proof and should not be allowed to profit by it. In such cases, it is reasonable to require a lesser degree of certainty as to the amount of loss, leaving a greater degree of discretion to the jury, subject to the usual supervisory power of the court'."
The remaining question is whether the proof meets the tests fixed in the Klaxon case.
Smith testified he could have sold the minimum amounts provided for in the contract. Plaintiffs argue this testimony is supported because it is based on Smith's experience in selling in the dry cleaning and laundry industries. Apparently all agreed Smith was an excellent salesman. There is no question Smith would have had to promote the product vigorously to sell the minimum amounts. Plaintiffs argue Smith had a good trade mark and he would have succeeded in having Revitex identified with a good sizing in the minds of buyers. Thus, it is claimed, a good product, plus a good trade mark, insured the successful promotion of Revitex.
I am not convinced, as a matter of fact, Smith could have sold the minimum amounts. When he suspected he was not to receive a written memorial for his exclusive benefit he was unwilling to undertake nationwide promotion and advertising expense. Smith claims his loss of profits amounted to $109,304.47 and he is entitled to interest of 6% from January 31, 1950, which he claims is the date of breach. One of my difficulties with the latter point is, if there was breach in January, 1950, nevertheless Smith still proceeded with his promotional and selling activities until July, 1950. He must have been proceeding under the contract which I found existed between the parties.
At this point, I have no tangible guide to indicate what, in fact, profits Smith would have made. He testified, at length, from a chart, prepared by Ledoux, an accountant, what his profits would have been had he sold the amounts provided for in the contract. The factual data upon which the accountant rested his testimony was based on mathematical calculations, but the basic figures on which he relied were assumptions. The record shows, during the period from November 1949, when *684 Smith placed the first orders, until July 1950, when he stopped promotional activities, he sold 470 gallons of Revitex. The orders were from 80 to 90 of his customers, and at the time he had 500 customers. If there had been no breach, and projecting Smith's selling activities into the foreseeable future, on the basis of the factual data presented to me, the best estimate I can make of his loss of profits is $25,000.
6. Smith is entitled to interest on any judgment he may be awarded. § 480 of the Civil Practice Act of New York provides: "In every action wherein any sum of money shall be awarded by verdict, report or decision upon a cause of action for the enforcement of or based upon breach of performance of a contract, expressed or implied, interest shall be recovered upon the principal sum whether theretofore liquidated or unliquidated and shall be added to and be a part of the total sum awarded." Stentor Electric Mfg. Co. v. Klaxon Co., 3 Cir., 115 F.2d 268, 275-277,[4] is authority the facts of this case justify and compel a reference to the New York statute to determine Smith's right to interest. That case also establishes under New York practice interest runs from the date of commencement of action where there is no proof of a fixed date of breach, 115 F.2d at page 277. Such is the case here. Here the date of breach is not fixed and certain. Hence, Smith is entitled to interest from the time suit was instituted. The New York legal rate is 6%.
Judgment should be entered in favor of Smith in the amount of $25,000, plus interest at 6% from date of suit. Plaintiffs are also entitled to $3,758.79 for damages suffered through incurring expenses in going forward with the agreement.
NOTES
[1] The only exception is that Tully forgot to annex Schedule "A" to the agreement which was merely a map showing the area agreed upon in Jenny's letter of December 20 (PX 1-B-2). This oversight was corrected by a letter from Tully to Barnes dated January 20, 1950 (PX 1-J).
[2] New York
Section 31, subdiv. 1 of the Personal Property Law of the State of New York Consol.Laws N.Y. c. 41, provides:
"Agreements required to be in writing. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking;
"By its terms is not to be performed within one year from the making thereof * * *."
Section 85 in part provides:
"* * * but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller's business, the provisions of this section shall not apply. * * *"
New Jersey
R.S. 25:1-5, N.J.S.A., provides as follows:
"25:1-5. Promises or agreements not binding unless in writing.
"No action shall be brought upon any of the following agreements or promises, unless the agreement or promises, upon which such action shall be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized:
* * * * *
"e. An agreement that is not to be performed within one year from the making thereof."
N.J.S.A. 46:30-10, § 4, Uniform Sales Act in part provides:
"* * * but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller's business, the provisions of this section shall not apply."
[3] The result would be the same if it were held the contract was made in New Jersey because the pertinent statutory provisions are virtually the same in both New York and New Jersey.
[4] The subsequent proceedings in the Stentor case 312 U.S. 674, 61 S.Ct. 734, 85 L.Ed. 1115, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477, 3 Cir., 125 F.2d 820, 316 U.S. 685, 62 S.Ct. 1284, 86 L.Ed. 1757, do not affect the vitality of Judge Goodrich's discussion of interest in 115 F.2d 268. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922316/ | 33 Mich. App. 425 (1971)
190 N.W.2d 291
PEOPLE
v.
JELKS
Docket No. 8318.
Michigan Court of Appeals.
Decided May 18, 1971.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
*427 Arthur J. Tarnow, State Appellate Defender, for defendant on appeal.
Before: V.J. BRENNAN, P.J., and FITZGERALD and LEVIN, JJ.
Leave to appeal denied, 386 Mich 768.
LEVIN, J.
The victim of the criminal offenses of which the defendant, John Lee Jelks, was convicted testified that her automobile became inoperable early in the morning of April 13, 1969, while she was driving on an expressway. She said that Jelks approached and offered to assist her, and, when her automobile could not be restarted, offered to drive her home. She claimed that he drove into alleys near her home, threatened her with a gun, and robbed and raped her, and required her to commit an act of gross indecency.
She identified Jelks' photograph from reels containing a large number of photographs and two weeks later picked him out of a lineup composed of five men.
She testified that when the criminal acts were committed there was a card hanging in the back window of Jelks' automobile. A police officer testified that the victim had mentioned the card before Jelks was apprehended. Both the officer and the victim testified that the card described was in the back window of Jelks' automobile when they viewed the automobile after Jelks was in custody.
Four alibi witnesses testified that Jelks was with them at the time the crimes were committed. The judge, who sat without a jury, in stating his findings said that he did not believe the alibi witnesses and indicated that he believed the victim's testimony. He said that he was satisfied that the lineup was fair. In conclusion he expressed his satisfaction beyond a reasonable doubt of Jelks' guilt of all *428 three charged offenses and convicted him of armed robbery,[1] rape,[2] and committing an act of gross indecency with a woman.[3]
Jelks filed a motion for a new trial on the ground that the automobile identified by the victim as the one used by him when the crimes were committed was in fact disabled and at a collision repair shop from April 13, 1969, continuously to and through April 13, 1969, the date on which the crimes were committed. In support of his motion he submitted a post-trial affidavit of a person who swore that he was responsible for incoming cars at the repair shop, that on April 1, 1969, the defendant brought in his automobile for a repair estimate and that the estimate was $450. The affidavit concludes with the statement that the automobile had remained at the repair shop since April 1, 1969, and was still there on the date of the affidavit. The judge denied the new trial motion.
At the trial the victim testified that while she was riding in Jelks' automobile it was "smoking" and that he told her it was not operating properly and explained that he had just taken it out of the "shop".
When Jelks testified, he said that he had received a key from the owner of the shop "to go and open the car and work". He also claimed that he had a "receipt" from the repair shop which was in the hands of an attorney who was representing him in civil litigation arising out of an automobile accident that occurred on April 1, 1969. He said he showed the receipt to a police officer.
The officer testified that Jelks said he took the automobile to the repair shop on April 1, 1969, that *429 he did not exhibit a receipt, and that persons employed at the repair shop were unable to recall the exact date on which the automobile was brought in but thought it was between April 11 and April 18.
A photocopy of a receipt or estimate, dated April 1, 1969, issued by the repair shop is attached to Jelks' brief on appeal. The estimated cost of repair is $450 and payment of $20 is acknowledged, leaving a balance of $430. The document does not purport to show whether Jelks' automobile was immobile between April 1 and April 13 or the date on which it was actually delivered to the repair shop.
Jelks' testimony at the trial that he had been trying to obtain the return of the receipt does not compel the conclusion that he exerted reasonable diligence to obtain it and was unable to produce it at the trial. Nor do we think, in the light of his testimony that he had a key to the repair shop and, thus, access to the automobile, and the victim's testimony that the automobile was smoking and that Jelks had told her that he had just taken it from the shop, that the alleged newly-discovered evidence is "such as to render a different result probable on a retrial".[4] Accordingly, we do not have an adequate basis for concluding that the judge abused his discretion in denying Jelks' motion for a new trial.
Jelks' alternative contention that he was denied the effective assistance of counsel is largely predicated on his trial lawyer's failure to obtain and produce the receipt. But the record does not show that the existence of the receipt was brought to the attention of his trial lawyer before the trial.
*430 Jelks' motion for a new trial was based entirely on his claim that he could not have committed the crime because the automobile identified by the victim was at the repair shop at the time the crime was committed. He did not, in his new trial motion, claim that his trial lawyer failed diligently and conscientiously to prepare for trial, nor did he ask for a hearing on a claim that he was denied the effective assistance of counsel. We could not properly find, based solely on Jelks' assertions on appeal, that his trial lawyer was lacking in diligence in failing to produce or to seek production of the receipt.
Jelks' trial lawyer did not call as witnesses any of the garage personnel. His reasons for failing to do so do not appear on this record. Perhaps, as defendant alleges, the lawyer had not properly prepared his case and did not know that Jelks' car might have been delivered to the garage before the date the crime was committed. On the other hand, he might have known of Jelks' possible defense but rejected it because, after investigation, he concluded that it was insubstantial or would backfire.
The people did not endorse the garage personnel even though there is authority which tends to support the view that they are res gestae witnesses;[5] but the failure of Jelks' trial lawyer to object at the trial to the failure of the people to endorse them leaves the matter in limbo. Again, we do not know whether the failure to object was the result of ignorance of the law, lack of diligence in preparation, indifference, or trial tactics.
*431 A convicted person who attacks the adequacy of the representation he received at his trial must prove his claim. To the extent his claim depends on facts not of record, it is incumbent on him to make a testimonial record at the trial court level in connection with a motion for a new trial which evidentially supports his claim and which excludes reasonable hypotheses consistent with the view that his trial lawyer represented him adequately.
It is further contended that the incompetency of Jelks' trial lawyer is evidenced by the questions the lawyer asked Jelks concerning his prior police record. However, many defense lawyers believe it better to bring this negative information out initially than to let the prosecutor stress it during cross-examination.
This case was tried to a judge rather than to a jury. It is entirely conjectural whether the prejudicial matter injected by the defendant's lawyer diverted the judge from the meritorious question. We are disinclined to conclude that it did. We must be especially wary about ordering a new trial where the defendant's trial lawyer is responsible for the introduction of the evidence relied on by his appellate lawyer as justifying a new trial, lest we enable counsel to build in "error" entitling his client to a new trial. Again, we are handicapped by the absence of a testimonial record on the issue of the adequacy of the representation the defendant received at the trial level.
Jelks was represented by a retained lawyer at the lineup. While he claims that he was dressed differently than the other four persons who, together with him, comprised the lineup, there was conflicting testimony on this point. The judge did not err in finding the lineup to be fair.
*432 This case illustrates the importance of the police recording the steps they take in their investigation of a crime with care so that they can be reconstructed from a more reliable record than the memory of police officers and witnesses. If, when the defendant Jelks was interviewed, the conversation had been transcribed, the trier of fact would have had a better basis for deciding whether Jelks did in fact tell the police officer about the receipt. If photographs had been made of the lineup, the trier would not have been dependent on conflicting testimony concerning the fairness of the lineup. If the victim's statement to the police had been transcribed, the trier would know whether, before she saw the automobile at the collision repair shop, she described it as she described it at the trial whether there is any basis for the defendant's claim on appeal that the automobile she described at the trial was the automobile that she saw at the collision repair shop, and not the automobile used when the crime was committed.
In a case where everything turns on one witness's identification and testimony, it is not too much to expect the police and the prosecutor to take reasonable precautions against the conviction of the innocent and to facilitate an independent judicial scrutiny at the trial of the testimony of the complaining witness. Leaving the matter dependent upon that witness's recollection and the recollection of police officers is not conducive to the kind of searching inquiry appropriate in a case of this kind. The outraged victim is naturally anxious to bring the offender to justice, and there is great risk that in her zeal she may become a partisan; a sympathetic police officer too may lose objectivity. Safeguards should be taken to protect against such *433 tendencies, but such safeguards have not as yet been established or made obligatory on the police or prosecutorial authorities.[6]
Affirmed.
All concurred.
NOTES
[1] MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797).
[2] MCLA § 750.520 (Stat Ann 1954 Rev § 28.788).
[3] MCLA § 750.338b (Stat Ann 1954 Rev § 28.570[2]).
[4] See Canfield v. City of Jackson (1897), 112 Mich 120, 123; People v. Bauman (1952), 332 Mich 198, 202; People v. Keiswetter (1967), 7 Mich App 334, 344.
[5] Witnesses other than those present at the time a crime is committed may be res gestae witnesses whom the people are obliged to call. See People v. Ake (1961), 362 Mich 134; People v. Kayne (1934), 268 Mich 186; People v. Etter (1890), 81 Mich 570; People v. Dickinson (1966), 2 Mich App 646.
[6] The defendant is, indeed, correct in saying that "the only legitimate object of the prosecution is `to show the whole transaction, as it was, whether its tendency be to establish guilt or innocence'". Hurd v. People (1872), 25 Mich 405, 416. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922323/ | 34 Mich. App. 34 (1971)
190 N.W.2d 689
KURTZ
v.
KURTZ
Docket No. 6315.
Michigan Court of Appeals.
Decided May 24, 1971.
*35 Sullivan & Leavitt, for plaintiff.
Nelson & Wilson, for defendant.
Before: J.H. GILLIS, P.J., and O'HARA[*] and JEANNETTE,[**] JJ.
Leave to appeal denied, 386 Mich 755.
PER CURIAM.
This is an appeal of right from a divorce judgment granted to plaintiff wife and the division of property made pursuant thereto. Appellant, Lucille Kurtz, seeks a change in the property settlement. On cross-appeal Walter Kurtz seeks to have the divorce judgment vacated and the divorce granted to him. He claims her asserted grounds were insufficiently proved.
Although this Court hears a divorce case do novo on the record, it will not substitute its judgment for that of the trial judge, absent a showing of abuse of discretion. Heckelman v. Heckelman (1966), 3 Mich App 159; Hildebrandt v. Hildebrandt (1923), 223 Mich 352. Such abuse is not supported by the record in this case. The judgment of divorce to plaintiff is accordingly affirmed except as hereinafter modified.
The property division as ordered by the trial court is affirmed except as to the 50-50 division of the stock in Concrete Block & Products Company. That division of property was made after extensive testimony and the submission of voluminous business records to the trial judge over a period of several *36 years. As above noted, this Court will not generally substitute its judgment for that of the trial judge on such a matter. However, this decree has resulted in a totally impossible situation regarding the management of the company.[1] Both parties acknowledge the impossibility of the situation.
The factual background of this case is as follows: Lucille Kurtz became the sole owner of Concrete Block & Products Company following the death of her first husband and the purchasing of outstanding stock from her brother in 1937. Subsequent to this purchase plaintiff married Walter Kurtz who was then employed at Concrete Block. Both parties continued to work in various capacities at the company until 1963 when marital and financial problems arose. At this time the parties agreed that exclusive management of the company be placed in the hands of Lucille. Walter thereupon opened a separate business in Lansing. From 1963 to the present, the value of Concrete Block has increased approximately ten-fold.
We have examined the record in great detail. We find, as apparently did the trial judge, that although Walter Kurtz' claims are not without merit, the greater equities are with Lucille Kurtz. Her contributions to the management of the company are supported by the record. The trial judge awarded the greater share of the couple's business interests to her, except as to Concrete Block. We believe it is better to place a money value on the parties' respective interest in this company rather than to leave the division in the form of an award of shares of stock.
*37 It is, of course, within the de novo review powers of this Court to amend a judgment of divorce as to the division of property. We, therefore, regard it more practicable to award all the shares of Concrete Block & Products Company stock to the wife. We find, however, that she is to pay Walter Kurtz $75,000. This transfer and payment is to be made within 90 days of the date of the release of this opinion to the parties. We specificially hold that no interest shall accrue, nor be paid, as to this sum. In all other respects the judgment of the trial court is affirmed. We allow no costs, neither party having prevailed in full.
In view of our holding here, we suggest that the parties address themselves to the question of the mootness of the issues in Kurtz v. Kurtz, Docket No. 9431, now pending in this Court.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
[**] Circuit judge, sitting on the Court of Appeals by assignment.
[1] We take judicial notice of the fact that there is already before this Court a dispute involving the validity of the election of the board of directors of Concrete Block & Products Company. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600948/ | 146 Mich. App. 69 (1985)
379 N.W.2d 469
BOWNS
v.
CITY OF PORT HURON
Docket No. 78876.
Michigan Court of Appeals.
Decided October 7, 1985.
Law Offices of Black & Dean (by David M. Dean), for claimant.
Bush, Luce, Henderson, Bankson & Heyboer (by David R. Heyboer), for the City of Port Huron.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Dennis J. Grifka, Assistant Attorney General, for the Michigan Employment Security Commission.
Before: CYNAR, P.J., and D.E. HOLBROOK, JR. and R.L. TAHVONEN,[*] JJ.
R.L. TAHVONEN, J.
Claimant, John R. Bowns, appeals as of right the circuit court's reversal of a decision of the Michigan Employment Security Commission Board of Review, which had reversed the Michigan Employment Security Commission's (MESC) denial of unemployment compensation benefits to claimant. The issue is whether the claimant's observation of and participation in illegal gambling activities, while off duty from his job with the police department, was sufficiently connected to his work to justify denial of unemployment compensation benefits. We believe it was.
The facts are undisputed. Claimant was a uniformed sergeant assigned to the patrol division in *72 the City of Port Huron Police Department, where he had been employed for 17 years. He supervised patrolmen assigned to his shift, and was required to patrol and respond to disturbances in Port Huron. Further, as a patrol sergeant, claimant was second in command to the shift lieutenant, in whose absence he would assume the position of platoon commander. The Port Huron police department has no specific rules or regulations which govern the behavior of off-duty police officers.
Between March and December, 1981, Gregory Riley, a special agent for the Michigan Attorney General's office, conducted an undercover investigation of the Midway Inn, a Port Huron motel. The investigation was in response to reports from the Port Huron police and Michigan State Police that sports betting, bookmaking and high stakes poker games were being conducted there.[1]
On March 13, 1981, Riley observed the claimant in the bar at the Midway Inn. Several individuals were playing a poker game called "In and Out". When one of the players left the game, the claimant played his hand until he returned. Riley noticed the claimant again at the Midway Inn on April 3, 1981. On that occasion, claimant sat near four persons who were playing a game of "In and Out" in the plain view of any patron entering the bar. He also moved around the room talking to people. "Stubby" Hill, a supplier of football pool cards, and Riley were in the bar on September 21, 1981, when claimant arrived, followed a few minutes later by William Bartlett, a known "numbers man". Claimant called to Bartlett, "Hi, numbers". *73 Bartlett proceeded to discuss the sale of football pool tickets and to distribute cards to bar patrons while claimant sat nearby. On October 22, 1981, Riley saw "Stubby" Hill and the claimant engaged in conversation while football pool tickets protruded from Hill's front shirt pocket. Claimant made no arrests, nor did he report to his superiors suspected violations of the state gambling or liquor laws.
Following completion of the investigation, claimant was suspended without pay. On March 8, 1982, the acting police chief, Captain Dressler, terminated claimant from the police force for conduct unbecoming a police officer and for neglect of duty.[2]
Claimant filed an application for unemployment benefits with the MESC on April 5, 1982, which the respondent city contested. The MESC determined on April 30, 1982, that the claimant was not entitled to unemployment benefits because he had been terminated for misconduct in connection with his work when he failed to report a violation of state gambling laws. Claimant appealed to the MESC referee division. An evidentiary hearing was held June 2 and 10, 1982, at which time the claimant admitted his presence in the bar, his knowledge of the gambling activities and his participation therein. He stated that he did not report the gambling activity because he was off duty. Claimant also explained that Port Huron is a small town and he had to live with the people there. He believed the gambling activity at the Midway Inn was common knowledge among police officers in Port Huron. The referee affirmed the *74 MESC on June 16, 1982, finding that the claimant's actions amounted to dereliction of duty and conduct unbecoming an officer, and that such were connected to his work.
An appeal to the MESC Board of Review followed. The board, on July 27, 1983, reversed the referee's decision, finding that, while the claimant had shown poor judgment, the respondent city had not shown the "connection with work" requirement of the act where the claimant was off duty, unarmed, in civilian clothes and only minimally participating in the gambling activity. Respondent city appealed to St. Clair County Circuit Court. The court held that claimant's misconduct was related to his work, and reversed the Board of Review's decision as being contrary to law. On appeal, the claimant urges that, as a matter of law, his actions did not constitute disqualifying misconduct within the meaning of the Michigan Employment Security Act (MESA), MCL 421.1 et seq.; MSA 17.501 et seq. We affirm the circuit court for the reasons set forth herein.
We note, at the outset, that the circuit court properly reviewed the question presented as one of law, since the facts are undisputed. Washington v Amway Grand Plaza, 135 Mich App 652, 656-657; 354 NW2d 299 (1984); Chrysler Corp v Sellers, 105 Mich App 715, 720; 307 NW2d 708 (1981); Laya v Cebar Construction Co, 101 Mich App 26, 29; 300 NW2d 439 (1980). This Court will reverse an order of the Board of Review only if it is contrary to law or unsupported by competent, material and substantial evidence on the record. Const 1963, art 6, § 28, MCL 421.38; MSA 17.540; Sellers, supra, p 720; Christophersen v City of Menominee, 137 Mich App 776, 779; 359 NW2d 563 (1984). Appellate review includes a review of the soundness of *75 the Board of Review's interpretation of misconduct. Washington, supra, p 657.
Former section 69(2)(b) of the Michigan Employment Security Act, MCL 421.69(2)(b); MSA 17.569(19)(2)(b), provided that an individual should be disqualified for benefits where he or she has been discharged for misconduct connected with his or her work [repealed by 1982 PA 535, effective January 2, 1983; current version at MCL 421.29(1)(b); MSA 17.531(1)(b)]. The Michigan Supreme Court, in Carter v Employment Security Comm, 364 Mich 538, 541; 111 NW2d 817 (1961), adopted the classic definition of misconduct as it was interpreted in Boynton Cab Co v Neubeck, 237 Wis 249, 259-260; 296 NW 636 (1941):
"The term `misconduct' * * * is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed `misconduct' within the meaning of the statute." See also, Linski v Employment Security Comm, 358 Mich 239, 241-242; 99 NW2d 582 (1959).
The employer's burden is to show misconduct. Fresta v Miller, 7 Mich App 58, 63-64; 151 NW2d 181 (1967); Washington, supra, p 658.
This Court has recognized that illegal or improper conduct by employees in positions of public trust may undermine their ability to function in *76 an official capacity and damage the prestige of the public employer. Core v Traverse City, 89 Mich App 492; 280 NW2d 569 (1979). The Core Court, in finding the conduct of an off-duty fireman who illegally hunted deer to be related to his employment, considered it important that his activities damaged the prestige of the fire department, evidenced serious disregard for law and interfered with his leadership ability. This Court upheld the discharge of a police sergeant who was observed visiting a woman while off duty and at "such hours and in such a manner as to bring discredit upon the police department", in Righter v Adrian Civil Service Comm, 1 Mich App 468, 470; 136 NW2d 718 (1975), lv den 377 Mich 696 (1966). A policeman's discharge for creating a disturbance in a bar while off duty was also upheld in Kryvicky v Hamtramck Civil Service Comm, 18 Mich App 344; 170 NW2d 915 (1969). Further, we note that Michigan does not require that the employee's conduct arise from his or her official duties, so long as it negatively affects the employer's interests. Banks v Ford Motor Co, 123 Mich App 250; 333 NW2d 239 (1983).
The Pennsylvania Commonwealth Court found a police officer's off-duty conduct to be sufficiently connected with his employment to justify denial of unemployment benefits in Faust v Police Civil Service Comm, 22 Pa Comm 123, 128-129; 347 A2d 765, 768-769 (1975).[3] The court invoked the following *77 policy considerations in support of its decision, quoting Cerceo v Darby, 3 Pa Comm 174, 183; 281 A2d 251, 255 (1971):
"Twentieth Century America has the right to demand for itself, and the obligation to secure for its citizens, law enforcement personnel whose conduct is above and beyond reproach. The police officer is expected to conduct himself lawfully and properly to bring honor and respect to the law which he is sworn and duty-bound to uphold. He who fails to so comport brings upon the law grave shadows of public distrust. We demand from our law enforcement officers, and properly so, adherence to demanding standards which are higher than those applied to many other professions. It is a standard which demands more than a forbearance from overt and indictable illegal conduct. It demands that in both an officer's private and official lives he do nothing to bring dishonor upon his noble calling and in no way contribute to a weakening of the public confidence and trust of which he is a repository. The record in this case indicates that the appellants acted in a questionable manner which could bring dishonor upon their profession, and which did indeed contribute to a weakening of the public confidence and trust." (Emphasis in original.)
We find these policy considerations to be particularly compelling. Therefore, we adopt them as guidelines for our evaluation of whether a police officer's off-duty behavior is connected with his work, where there is no departmental regulation addressing the off-duty behavior of police officers.
Viewing the instant case in light of the considerations previously expressed, we find that the claimant's off-duty association with, and limited participation in, gambling activities at the Midway Inn seriously interfered with his employer's interests. The claimant's conduct cast a cloud over his *78 ability to maintain public trust, evidenced a wilful disregard for the law, and undermined his ability to function as a police officer. The claimant is not excused in his private life from the duty to avoid dishonoring the law enforcement profession, and his local police department in particular.
We hold that claimant's participation in gambling activities and his failure to stop or report them amounted to a knowing disregard of the standards of behavior which his police department had the right to expect from him, even in the absence of a specific regulation addressing his off-duty behavior. Claimant's behavior constituted misconduct connected to his employment within the meaning of the act. We therefore affirm the lower court's finding that the MESC Board of Review made an error of law in its interpretation of the "connected with work" requirement.
Affirmed. No costs, a question of public interest being involved.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignemnt.
[1] The City of Port Huron had requested the Attorney General's intervention because of reports that local police officers, and specifically one or two sergeants, were on friendly terms with the participants in illegal activities and, possibly, were also directly "involved" in some way with the various illegal activities.
[2] The St. Clair County Prosecutor's Office charged claimant with "neglect of duty", a misdemeanor arising out of his at least tacit participation in gambling activities. MCL 752.11; MSA 28.746(101). Apparently, a six-member jury in the St. Clair District Court acquitted him.
[3] Faust was followed in D'Iorio v Commonwealth, Unemployment Compensation Board of Review, 42 Pa Comm 443; 400 A2d 1347 (1979), where the claimant, a criminal investigator, was denied unemployment compensation benefits when he was discharged for socializing with a convicted felon. The D'Iorio Court mentioned that sordid activities and associations by law enforcement personnel are incompatible with work responsibilities. In Cadden v Unemployment Compensation Board of Review, 195 Pa Super 159; 169 A2d 334 (1961), the Court determined it is unnecessary to have a specific employer's rule where the act of the off-duty employee was contrary to law. See also Johnson v Board of Comm'rs of the Port of New Orleans, 348 So 2d 1289 (La App, 1977). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600949/ | 1 So.3d 493 (2009)
STATE of Louisiana
v.
Robert Lee SAMUEL.
No. 2008-K-1419.
Supreme Court of Louisiana.
February 20, 2009.
*494 Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600641/ | 391 So.2d 1286 (1980)
LAKE FOREST, INC.
v.
KATZ & BESTHOFF # 9, INC.
No. 11159.
Court of Appeal of Louisiana, Fourth Circuit.
October 10, 1980.
Stone, Pigman, Walther, Wittmann & Hutchinson, Michael R. Fontham, J. Broocks Greer, III, and Sarah S. Vance, New Orleans, for Lake Forest, Inc. and Kenilworth Mall, Inc., plaintiffs-appellants.
Bronfin, Heller, Feldman & Steinberg, Fred Bronfin and Bernard H. Berins, New Orleans, for Katz & Besthoff No. 9, Inc., defendant-appellee.
Before SAMUEL, BOUTALL and BARRY, JJ.
*1287 SAMUEL, Judge.
Lake Forest, Inc. and its subsidiary Kenilworth Mall, Inc. appeal from a judgment dismissing their eviction suit against Katz & Besthoff # 9, Inc.
Kenilworth Mall entered into a lease with Katz & Besthoff # 9 for premises to be used as a drugstore in the Kenilworth Mall Shopping Center in the City of New Orleans.[1] The lease provided for payment of a monthly rental of $2,045 during the terms of the lease (and escalating thereafter) "in advance of the first day of every month." In addition, it provided for a subsequent annual rental based on a percentage of net sales for the preceding fiscal year. This percentage was to be computed, reported and paid within ninety days of September 30, the close of the fiscal year.
For several years the lessee was dissatisfied with the adequacy of the air conditioning as it was maintained by the lessor, and in 1978 the condition became acute. By letter dated December 11, 1978 complaint was made as to air conditioning problems occurring between December 3 and December 8, 1978. Thereafter, the president of Katz & Besthoff # 9, Sidney Besthoff, III, telephoned Howard Beck, the president of Lake Forest, to discuss the air conditioning maintenance. The parties agreed to continue discussions, with Mr. Besthoff offering to have his corporate engineers examine the air conditioning (the units were on the roof of the building). Mr. Beck agreed and also undertook to have the units examined. No examination was made by Katz & Besthoff # 9 prior to December 31, 1978 when it made a written report to Lake Forest that the percentage of the rent due under the lease for the preceding fiscal year was $37,692.66. The letter stated in part: "Check to be mailed when agreement reached regarding the air conditioning problem at this store."
Upon receipt of the letter withholding the percentage rent Beck wrote to Besthoff rescinding permission to survey the air conditioning units and averring that the operation and maintenance of the units was the landlord's (Lake Forest's) responsibility. We note there was insufficient time to make repairs prior to receipt of this letter which rescinded permission to survey the units.
On February 22, 1979 Lake Forest placed Katz & Besthoff # 9 in default for nonpayment of the percentage rent. Under the terms of the lease, failure of the lessee to correct such a default within 30 days allowed the lessor to cancel the lease "immediately or as of any date which the lessor may select." Katz and Besthoff # 9 did not make payment within the 30 day period and Lake Forest cancelled the lease. Lake Forest did continue to accept the monthly basic rent through March, 1979. However, after the lease was cancelled these checks were returned.
On April 27, 1979 Lake Forest sent lessee a notice to vacate by certified mail, and a similar notice also was served by the civil sheriff. The mailed notice was received April 30, 1979.
On April 25, 1979 Katz & Besthoff # 9 mailed two checks to Lake Forest for the basic monthly rent for May. These checks were returned. On May 4, 1979 (after receipt of the notice to vacate) Katz & Besthoff # 9 sent the monthly rent for May and the annual percentage rent they had previously withheld. This check was returned as were checks dated May 25, 1979 for the percentage rent and basic monthly rental.
After service of the notice to vacate the parties started negotiations for a new lease. While these negotiations were pending a tender of the outstanding basic monthly rent and annual percentage rent was made on July 2, 1979. These checks were retained (but not negotiated) by Lake Forest, whose comptroller went on vacation prior to receipt of a letter from Katz & Besthoff # 9 ending negotiations on July 9, 1979.
*1288 Proceedings then were instituted to enforce cancellation of the lease; the rule for eviction was filed on July 13, 1979. The checks were returned July 26, 1979.
At the trial the parties stipulated the units were in need of repair, and testimony indicates Lake Forest had been repairing the system on a hit-or-miss basis while performing regular maintenance on the units.
The trial court found for defendant, stating that withholding rent prior to making repairs did not satisfy the requirements of C.C. Art. 2694,[2] but that the tenant was precluded from making the repairs and then withholding the cost thereof from the rent by the action of the landlord in withdrawing permission to survey the units prior to placing defendant in default.
Lake Forest appealed and Katz & Besthoff # 9 answered the appeal contending the district court erred in overruling certain exceptions filed prior to trial, namely dilatory exceptions of prematurity and nonjoinder of a necessary party plaintiff, and peremptory exceptions of no right or cause of action.
The questions presented by this appeal are whether or not a lessee may withhold the rent prior to his making necessary repairs, if the lessee is precluded from making those repairs due to actions of the lessor, and the merit, if any, of appellee's exceptions.
The basic purpose of Article 2694 is to allow a lessee to repair at the lessor's expense those things which the lessor is required to repair.
Shell v. Banks[3] has withstood the test of time as the leading judicial interpretation of C.C. Art. 2694. In that case the court set out these three prerequisites to the lessee's use of the repair and deduct article. First, the lessee must call upon the lessor to make the repairs and thereby put the latter in default of his obligation to repair. Second, the lessee must show the repairs are indispensable. And finally, the lessee must in fact make the necessary repairs neglected by the defaulting lessor, and prove that the price paid for making the repairs is just and reasonable.[4]
Although the cases hold that failure of the lessor to accomplish the necessary repairs is not justification for the lessee's refusal to pay rent when due, the lessee may either make the repairs and deduct the cost thereof, or sue for cancellation of the lease.[5] We know of no case and have been cited to none where, as here, the lessor has prevented the lessee from exercising the right granted to it under Article 2694.
The trial court found that before the letter of default was sent by the plaintiff to the defendant (giving 30 days to pay the full rent due), there was a prior letter depriving the lessee from the opportunity of exercising its Article 2694 right to make necessary repairs and then deduct the cost thereof from its rental payments. The record supports this finding. The record also supports a finding that the air conditioning was functioning so inadequately as to effectively prevent a proper and contemplated use of the leased premises by the defendant. Thus, the court found the lessee was not in default so as to support an eviction; it refused to permit the lessor to unilaterally deny the lessee the opportunity to repair and at the same time demand the rent.
The decision of the trial court is practical and equitable. While the jurisprudence under Article 2694 is to the effect that rent can be withheld only after repairs actually have been made, in our view a lessor cannot effectively prevent the making *1289 of the repairs and thus deprive the lessee of one of his rights. This view is consistent with our Supreme Court's rationale in Cox v. Department of Highways, 252 La. 22, 209 So.2d 9:
"Where the promisee makes performance impossible, it is unimaginable that any civilized system of law would allow that promisee to recover damages for the promisor's failure to perform under the contract. It is a long established principle of law that he who prevents a thing may not avail himself of the non-performance he has occasioned. The principle is founded upon the premise that one should not be able to take advantage of his own wrongful act."
Our affirmance of the trial court judgment makes a consideration of the exception issues, raised in appellees' answer to the appeal, unnecessary.
For the reasons assigned, the judgment appealed from is affirmed.
AFFIRMED.
BARRY, J., dissents with written reasons.
BARRY, Judge, dissenting.
Our law provides that the lessee may be expelled from the property if he fails to pay the rent when it becomes due. LSA-C.C. Art. 2712. If the lessor neglects to fulfill his obligations it may cause dissolution of the lease. LSA-C.C. Art. 2729. If a lessor neglects or refuses to make necessary repairs, the lessee may cause those repairs to be made and deduct the price from the rent due on proving that the repairs were indispensable and that the price which was paid was just and reasonable. LSA-C.C. Art. 2694.
Our jurisprudence interpreting these articles is well settled that a lessor's breach of his obligation to repair the leased premises does not exonerate the lessee from his obligation to pay the stipulated rental if he continues to occupy and use the premises. Degrey v. Fox, 205 So.2d 849 (La.App., 4th Cir. 1968); Cameron v. Krantz, 299 So.2d 919 (La.App., 3rd Cir. 1974).
If the lessor fails to make repairs required by the lease or by law, the lessee at his option may:
(1) Complete the repairs himself within a reasonable time, and then deduct the cost of them from the rent to become due, on proving that the repairs were indispensable and that the price paid was just and reasonable; or
(2) He may terminate the lease and surrender possession of the premises to the owner. Cameron v. Krantz, 299 So.2d 919 (La.App., 3rd Cir. 1974).
It is clear that lessor and lessee amicably discussed the need for air conditioning repairs. Each agreed to investigate what should be done. However, lessee then chose to use economic pressure by failing to pay its annual rental. If lessee had been in good faith it would have paid what was due and while it had the opportunity to determine what repairs should be made, effected the repairs and paid for same, then used this payment as an offset against rents due.
The annual rental was payable to lessor by December 31, 1978 for the fiscal year October 1, 1977 to September 30, 1978. Even though air conditioning problems existed prior to and during that period, it was stipulated that lessor made repairs from time to time and did have a maintenance program.
Lessor had no alternative but to terminate the lease in view of lessee's failure to timely pay its rental while continuing to occupy the premises. After lessee defaulted it effectively lost any rights it may have had under the lease.
LSA-C.C. Art. 2694 provides that if the lessor refuses or neglects to make necessary repairs ... "the lessee may himself cause them to be made, and deduct the price from the rent due, ..." Here the lessor did not refuse to make necessary repairs. The lessee had the opportunity and time on prior occasions to make repairs, but didn't. Finally, withholding "rent due" does not mean past rent due. All lessee had to do was place lessor in default, make the repairs, and deduct the expense from the *1290 rents due. The lessee chose to withhold rent, effect no repairs, and continue to occupy the premises, all of which constitutes bad faith and a breach of contract.
I therefore respectfully dissent.
NOTES
[1] Subsequent to the execution of the lease the ownership of the mall and the interest of that corporation in the lease was transferred to Lake Forest, Inc. as part of a corporate reorganization.
[2] "If the lessor do not make the necessary repairs in the manner required in the preceding article, the lessee may call on him to make them. If he refuse or neglects to make them, the lessee may himself cause them to be made, and deduct the price from the rent due, on proving that the repairs were indispensable, and that the price which he has paid was just and reasonable." LSA-C.C. Art. 2694.
[3] 8 Rob. 168.
[4] Brignac v. Boisdore, La.App., 272 So.2d 463, affirmed, La., 288 So.2d 31.
[5] See Dikert v. Ruiz, La.App., 231 So.2d 633; Bruno v. Louisiana School Supply Company, Inc., La.App., 274 So.2d 710. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922290/ | 33 Mich. App. 465 (1971)
190 N.W.2d 257
PEOPLE
v.
BUGAI
Docket No. 8824.
Michigan Court of Appeals.
Decided May 18, 1971.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.
Donnell P. O'Callaghan, for defendant on appeal.
Before: LESINSKI, C.J., and BRONSON and DANHOF, JJ.
DANHOF, J.
Defendant was convicted, upon his plea of guilty, of the offense of receiving and concealing stolen property valued at less than $100. MCLA § 750.535 (Stat Ann 1971 Cum Supp § 28.803). Defendant appeals as of right.
Defendant's only claim on appeal is that he pled guilty under the belief that he would not be prosecuted for violation of probation on another charge. The record does not support defendant's argument. The trial court informed defendant that he might, as the result of his plea of guilty to the instant offense, be charged with violation of probation.
The dissenting opinion would vacate the guilty plea because the trial court, in accepting defendant's plea, failed to comply with GCR 1963, 785.3. We disagree for two reasons. First, the defendant *467 has not raised the issue that the plea was improper under GCR 1963, 785.3. Second, even if the issue had been properly raised, GCR 1963, 785.3 is not applicable in the instant case.
Defendant pled guilty to a misdemeanor under MCLA § 750.535 (Stat Ann 1971 Cum Supp § 28.803). Since this statute fails to expressly provide the penalty to be imposed, MCLA § 750.504 (Stat Ann 1954 Rev § 28.772) becomes operative. This statute prescribes a penalty of not more than 90 days imprisonment or a fine of not more than $100, or both. The offense, due to the permissible maximum penalty under the statute, is designated a "simple misdemeanor" as opposed to a "circuit court misdemeanor". People v. Mallory (1967), 378 Mich 538, 557, 558.
In People v. Barry (1970), 23 Mich App 121, 122, this Court stated:
"Although a trial judge is clearly under an obligation in accepting a guilty plea to comply with the respective court rule (GCR 1963, 785.3) and statutory provision (MCLA § 768.35 [Stat Ann 1954 Rev § 28.1058]) in felony cases and circuit court misdemeanors, such responsibility does not extend to simple misdemeanors."
Arguably, GCR 1963, 785.3 could be extended to include a simple misdemeanor which provides a permissible maximum sentence of three months imprisonment or a $100 fine, or both. See People v. Mallory, supra, at 559. However, until directed to do otherwise, we are of the opinion that the holding in People v. Barry, supra, should be followed.
Judgment affirmed.
BRONSON, J., concurred.
*468 LESINSKI, C.J. (dissenting).
Defendant was originally charged with receiving and concealing property valued at more than $100, a felony. MCLA § 750.535 (Stat Ann 1971 Cum Supp § 28.803). He claims he pled guilty to the reduced misdemeanor charge on the mistaken belief that by doing so he would not be charged with a violation of probation on another unrelated conviction. The record does not support defendant's argument; it shows the trial court informed defendant that he might be charged with a violation of probation as a consequence of his plea. On this point I agree with the majority.
Unlike my brethren of the majority, I find on this appeal another issue which must be settled. We must face squarely the issue of whether GCR 1963, 785.3 is applicable to the instant case. The issue is properly before us as defendant's claim of error raises the general issue of the voluntariness of the proffered guilty plea.
The record reveals that the requirements of GCR 1963, 785.3 were not met in the instant case. No inquiry into the facts of the alleged crime was conducted by the court. People v. Barrows (1959), 358 Mich 267. No attempt was made to determine whether the plea was induced by undue influence, compulsion, duress, or the promise of leniency. The court rule states that "the court shall examine the accused" relative to these matters to effect reasonable ascertainment of the truth of the plea. (Emphasis supplied.) More is required than that the defendant agree with his attorney that it is expedient to plead guilty. "The purpose of the direct questioning of the defendant by the trial judge is to establish the crime and the participation therein of the defendant as a precaution against involuntary or induced false pleas of guilty and against subsequent false claims of innocence." People v. Coates *469 (1971), 32 Mich App 52. Absent such examination there is no basis for the determination that the guilty plea was freely, understandingly, and knowingly made, a prerequisite to its acceptance. People v. Gerald Jackson (1971), 30 Mich App 173.
The fact that the ultimate plea in this case involves a misdemeanor does not alter the obligation of the trial court to conduct such an inquiry, since defendant was originally charged with a felony. GCR 1963, 785.3 applies "in every prosecution wherein the accused is charged with a felony". Compare People v. Barry (1970), 23 Mich App 121; People v. Holt (1969), 17 Mich App 27. Acceptance of the guilty plea without valid determination of its voluntariness mandates reversal.
I would reverse and remand the cause to the trial court for further proceedings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922319/ | 33 Mich. App. 574 (1971)
190 N.W.2d 357
AUTO-ION CHEMICALS, INC.,
v.
GATES RUBBER COMPANY
Docket No. 9847.
Michigan Court of Appeals.
Decided May 19, 1971.
John F. Rooney, for plaintiff.
Stapleton & Adams, P.C. (by Charles E. Ritter), for defendant.
Before: HOLBROOK, P.J., and BRONSON and O'HARA,[*] JJ.
BRONSON, J.
Plaintiff, Auto-Ion Chemicals, Inc., a Michigan corporation, brought this suit against defendant, Gates Rubber Company, a Colorado corporation, alleging breach of contract. Plaintiff appeals *576 as of right from a jury verdict of no cause of action.
The contract which formed the subject of this litigation required defendant to install a 3/16-inch rubber inner lining on plaintiff's tanker truck to allow transportation of chemical substances. Plaintiff alleged below that electrical equipment on the tanker was damaged by defendant's workmen and that because only a 1/16-inch lining was installed the resulting failure of the rubber and damage to the truck was chargeable against defendant. Defendant denied damaging the electrical equipment and claimed that the liner, when installed, met industry specifications, but that plaintiff's misuse caused the failure.
Part of plaintiff's claim for damages was the cost of welding repair to the tanker trailer. As evidence of the cost of such repair, plaintiff offered an itemized bill which listed a charge for stainless steel welding rods. Defendant produced a witness who demonstrated to the jury the magnetic properties of carbon steel as opposed to comparatively nonmagnetic stainless steel. He testified that from his observations and tests with a magnet that the welding done on plaintiff's carbon steel tanker was done using carbon steel rods, and noted the presence of a stainless steel tanker of the same unique configuration on plaintiff's premises. The obvious implication of such testimony was that plaintiff's bill for repairs did not relate to the cost of repair of the damaged vehicle, but to the stainless steel tanker.
Plaintiff claims that the admission of such testimony from a witness not qualified as an expert welder was error. We disagree. The witness was the manager of defendant's branch office in Iowa, and while not a welder himself, indicated he was familiar with the types of welding repair done on *577 tankers prior to installation of rubber lining. The determination of the qualifications of a witness to give opinion testimony is a matter within the discretion of the trial judge. Accetola v. Hood (1967), 7 Mich App 83; People v. Hawthorne (1940), 293 Mich 15. It was not an abuse of judicial discretion to allow the demonstration of the magnetic properties of stainless steel or the testimony of this witness since his knowledge in the field is considerably greater than that of the average juror. United States v. Porter (ED Mich, 1925), 9 F2d 153; Colwell v. Alpena Power Co. (1916), 190 Mich 255.
Whether the test used by the witness was valid would affect the weight of the testimony, not its admissibility. However, it is difficult to see how plaintiff can dispute the result of the test since plaintiff's principal witness stated earlier in trial that stainless steel rods would not be used to weld carbon steel.
Plaintiff attempted to counter the implication that the bill of repairs related to work done on the stainless steel tanker by offering a certificate of title to that vehicle. The purpose for which this certificate was offered was to show that plaintiff had not acquired the stainless steel tanker until some time after the stainless steel welding repair work was done. Unless a proper foundation is established, such an exhibit would not necessarily show that the date on the title was the date plaintiff first acquired the vehicle since it is quite possible for a new certificate of title to be issued upon discharge of a prior lien. Absent such foundation, we find no error in not admitting this exhibit into evidence.
Plaintiff asserts the trial court erred by failing to admit other proposed exhibits into evidence. The basis for defendant's objection to these exhibits was again the failure to lay proper foundation. The *578 record shows that plaintiff neither attempted to overcome defendant's objection or further establish the necessary foundation. Post-judgment analysis does not preserve these issues for review on appeal where the alleged errors could have been corrected at trial. Baldwin v. Nall (1948), 323 Mich 25; Metz v. City of Bridgman (1963), 371 Mich 586.
Plaintiff's claim of error in the trial judge's jury instructions is also not preserved. It appears that the requirements of GCR 1963, 516 regarding submission by counsel of proposed jury instructions in writing was not strictly followed. Nevertheless, plaintiff was given opportunity to object to the charge as given, and failed to do so. Failure to so object waives the issue on appeal. Sarazin v. Johnson Creamery, Inc. (1964), 372 Mich 358; Hill v. Harbor Steel & Supply Corporation (1965), 374 Mich 194; Hunt v. Deming (1965), 375 Mich 581. We find no error.
Affirmed.
All concurred.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602308/ | 361 F. Supp. 805 (1973)
WARREN G. KLEBAN ENGINEERING CORPORATION, Plaintiff,
Denton Roberts d/b/a Roberts Electric Company, Intervening Plaintiff,
v.
Thomas CALDWELL et al., Defendants.
No. WC 70-71-K.
United States District Court, N. D. Mississippi, W. D.
June 26, 1973.
*806 Dewitt T. Hicks, Jr., and Ralph E. Rood, Columbus, Miss., for Kleban.
Johnny N. Tackett, Aberdeen, Miss., for Roberts.
Lester McDonough, New Albany, Miss., Laurel G. Weir, Philadelphia, Miss., for defendants.
MEMORANDUM OPINION
KEADY, Chief Judge.
In this case, the Pontotoc County Board of Education and its superintendent (Board) are sued by Warren G. Kleban Engineering Corporation (Kleban) of Starkville, Mississippi, for losses allegedly arising from its failure to obtain the mechanical engineering work on a contract awarded by the Board to Lee Watson and Sons (Watson), general contractors of Hamilton, Mississippi, to construct two Pontotoc County 12-grade schools, one located at Ecru and the other *807 at Springville.[1] Watson, the general contractor, was originally joined as a co-defendant. On February 22, 1971, Denton Roberts, d/b/a Roberts Electrical Company (Roberts) of Aberdeen, with leave of court, intervened to assert a claim against the Board and Watson for being denied an opportunity to perform the electrical work under Watson's contract. By its answers, the Board denied any contractual relation with either Kleban or Roberts and asserted that its dealings were exclusively with Watson as general contractor. Watson answered, also denying liability and asserting that although Kleban did submit the low bid for mechanical engineering, that firm was not awarded the subcontract because Kleban was not acceptable to the Board; Watson denied liability to Roberts on the gound that although it had solicited a bid for the electrical work from Roberts after Hankins, the original low bidder, was found unqualified, it had the right, once Kleban was rejected as mechanical engineering subcontractor, to substitute still another subcontractor, Central Electrical and Machinery Company (Central) of Tupelo, who submitted a lower and combination bid for both mechanical engineering and electrical work.
The court on August 4, 1971, entered a pre-trial order agreed to by all parties looking to the trial of the case in November 1971. Because of valid reasons, several continuances were granted by the court, thus delaying trial. Watson in March 1972 moved for summary judgment and shortly thereafter the court was presented an order dismissing Watson with prejudice, and the consent order was entered pursuant to stipulation approved by counsel for Kleban and Roberts.
Full evidentiary trial was conducted March 14, 1973. After the parties submitted proposed findings of fact and memorandum briefs, the court, having been presented with post-trial evidentiary materials in conflict with the previous pre-trial order, reopened the case and received further evidence May 30, 1973.
Since the commencement of this litigation, the two 12-grade schools, scheduled for completion August 1, 1971, have been constructed and placed into active use by the Board. Injunctive relief first sought has been abandoned but Kleban seeks a recovery for loss of profits ($57,000) on the project, estimate expenses in bidding ($4,800), and substantial damages both compensatory and actual, for injury to its business reputation; and Roberts seeks the recovery for loss of profits ($21,640) for not being the electrical subcontractor.
The Board hired William I. Rosamond and Associates (Rosamond), a well-known architectural firm of Columbus, to prepare plans and specifications on the two-schools project. On the basis of detailed plans and specifications, the Board invited sealed bids by contractors to be opened and publicly read September 29, 1970, at 2 o'clock, p. m., in the Board's office at the City of Pontotoc. Bidders were solicited to `bid for general construction, including plumbing construction, mechanical construction, electrical construction, and site improvements for two 12-grade schools, Project `A' and Project `B'." The bid invitation *808 specifically recited that the proposed work would be awarded either as one lump-sum contract covering both schools or as two separate one-lump-sum contracts for each school. The Board reserved the right to reject all bids, also advising bidders "that any person, firm or other party to whom it is proposed to award a subcontract must be acceptable to the owner and the architect." The form of bid proposal supplied by the Board's architect provided that bidders should complete a separate form headed "Data on Specialty Items", in which the bidder was instructed to list a breakdown of his general bid, together with the names, if any, of the subcontractors.[2] The bidder was advised that the amounts of any such subcontracts should not include any general contractor's overhead and profit and that a separate sheet on these specialty items should be properly filled out and submitted with the bidder's bid but in a sealed envelope separate from the envelope containing the general bid. Watson did not submit a bid for each of the schools (Projects A and B), but only a lump-sum proposal to construct both schools.[3] Watson testified that in preparing his firm's bid he relied upon a mechanical engineering proposal of $347,500 submitted by a Mr. Lundy although he had also received from Kleban a higher proposal of $350,000, and for electrical construction upon a $152,000 proposal from Hankins Electric Company. Only several minutes before its bids were actually delivered, however, Watson conferred with Kleban, who reduced its mechanical proposal to $347,000; Watson then hurriedly filled out the specialty data sheet naming Kleban as the successful mechanical engineering contractor for $350,000[4] and Hankins as the successful electrical contractor for $152,000. The Board opened the various general contractor bids but no award was immediately made since all bids exceeded available funds. The sealed envelopes containing the data on specialty items, including those submitted by Watson, were not opened by the Board but were confidentially retained by Rosamond and later opened at his Columbus office. The next day, Rosamond contacted Watson and proceeded to negotiate a contract with that firm, by taking alternate deductions and issuing certain change-orders. Hankins, the low bidder for the electrical work, was determined to be unqualified, not having a certificate of responsibility, and Watson, with Rosamond's concurrence, negotiated with Roberts, who submitted a bid of $165,915.87. Further negotiations for the mechanical engineering took place between Watson and Kleban, with Rosamond's approval, and resulted in a new proposal by Kleban for $330,000. On October 23, Watson submitted Kleban and Roberts to Rosamond, the Board, and the State Educational Finance Commission for approval as the proposed mechanical engineering and electrical subcontractors. The Board, on October 28, acting through its Superintendent Richard C. Ball, disapproved Kleban as mechanical subcontractor without assigning reasons but relying upon references contained in the specifications. No mention of Roberts was made.
*809 Watson was notified to submit an alternate mechanical subcontractor for the Board's approval. Watson subsequently submitted Central as the combined mechanical engineering and electrical subcontractor, and this firm was approved by the Board and Rosamond.[5] The Board thereupon proceeded to enter into construction contracts with Watson for a total consideration of $1,612,889.44; of this amount $638,873.22 was allocated to Project "A", Ecru, and $974,016.22 to Project "B", Springville.[6]
Rosamond on October 29 notified Watson to proceed with work under the contracts executed by the Board. After the ground-breaking, Kleban requested that the architect and Board reconsider its rejection as mechanical subcontractor. This request, accompanied by a list of references, was made by letter dated November 6. The Board granted Kleban a hearing, which was held November 12. At that time Kleban and his attorney appeared before the Board, submitted references and presented their case; at the conclusion of this hearing the Board adhered to its decision of disapproval.
Superintendent Ball, when advised that Kleban was the mechanical subcontractor proposed by Watson, made inquiry of several sources,[7] and formed the opinion that Kleban was unsatisfactory because of its tendency to be uncooperative with other contractors, slow in performance, and with a reputation for being contentious as to materials meeting specifications. Ball's recommendation of disapproval was accepted by the Board because it deemed time to be very much of the essence in view of the badly needed schools, the threat of loss of accreditation by state agencies because of the inadequate existing facilities, as well as the presence of the federal court order requiring establishment of a unitary school system as soon as possible. The Board, a body composed of merchants and farmers without building experience, relied upon Ball's report and recommendation. Rosamond, while feeling that Kleban was a competent mechanical subcontractor, left it to the Board to make the final decision and acquiesced in its disapproval of Kleban. Roberts was neither approved nor disapproved by the Board as electrical subcontractor; Watson, in effect, withdrew him as his subcontractor by submitting Central as the subcontractor to do the electrical as well as the mechanical engineering work.
Kleban contends that since it was tendered to the Board by the general contractor as the successful mechanical engineering subcontractor with the affirmative recommendation of the architect, the Board was without power to reject Kleban except after due consideration and upon reasonable grounds, as dictated by the AIA (American Institute of Architects) General Conditions which Kleban contends to be, by reference, a part of the specifications (B-1);[8] that Kleban, *810 a competent subcontractor fully capable of doing the type of mechanical engineering involved in the relatively simple two-schools project, was rejected arbitrarily and without cause; and also that the Board, by its action, exceeded its statutory authority by failing to record on its minutes the reason for disapproving Kleban as the mechanical engineering subcontractor.[9] Similarly, Roberts contends that since he was tendered to the Board as the successful electrical contractor and was never rejected either by the architect or the Board, the Board became legally obligated to him and ignored his position only at its peril. Denying these contentions, the Board asserts that by advertising for construction bids in the manner that it selected and by receiving bids from general contractors, it entered into no contractual relations with subcontractors making proposals to a general contractor; that it had no concern with, or control over, the price paid to subcontractors selected by the successful general contractor, as the making of subcontracts, if any, was a matter entirely between the general contractor and his proposed subcontractors; and the Board reserved a right to disapprove subcontractors proposed by the prime contractor. It urges that the specifications vested it with the unrestricted power to disapprove.[10] The Board further asserts that there was a reasonable factual basis for rejecting Kleban as the mechanical engineering subcontractor and, as for Roberts, it was not responsible for Watson's independent action which substituted Central for Roberts to do the electrical work, and Roberts' claim, if any exists, is solely against Watson.
The question here presented is whether the Board became obligated to deal with subcontractors proposed by the successful general contractor under the circumstances shown by the record. The substantive law of Mississippi, of course, governs the case. Basic in our consideration are certain well-settled principles, recognized both generally and in Mississippi, relative to the award of contracts for public works. First, the rules which govern bidding for public contracts are analogous to auction sales in that the bid, and not the call or advertisement for bids, is the offer, but even the bid ordinarily creates no rights until accepted. 64 Am.Jur.2d, Public Works and Contracts, § 30, p. 882. Thus, an advertisement being nothing more than a solicitation of bids, does not of itself impose any contractual obligation. Second, public officers in awarding contracts for the construction of public works perform not merely ministerial functions but duties of a judicial or discretionary nature; and the courts, in the absence of fraud or a palpable abuse of discretion, ordinarily will not interfere with their decisions as to the details of entering into a contract or the acceptance of bids therefor so long as the public officers conform to the requirements of controlling constitutional *811 or statutory provisions. Ibid § 64, p. 918. Lastly, while statutory provisions often require that contracts be awarded to the "lowest and best bidder",[11] officials may properly consider a number of factors beside price, such as the bidder's skill and business judgment, his experience and his facilities for carrying out the contract, his previous conduct under other contracts and the quality of previous workas well as his pecuniary ability, honesty and integrity. Ibid § 70, pp. 927-28. These principles were comprehensively discussed by Chief Justice Ethridge in Parker Bros. v. Crawford, 219 Miss. 199, 68 So. 2d 281 (1953), a case upon which all parties rely, and were recently reaffirmed in Walley v. Board of Trustees of Richton Municipal Separate School District, 241 So. 2d 644 (Miss.1970).
As stated, the Board solicited bids or firm proposals from prime contractors only, distinctly specifying that the work would be let either as a single lump-sum contract for both schools or as separate lump-sum contracts for each of the two schools. No bid was solicited for a portion of the work, as the bid by general contractor had to cover all phases of the construction, his option being to bid on one or both schools. It is certain that the Board did not propose to contract with specialists or become obligated to subcontractors. This conclusion must be mandated by the specifications and form of bid proposal unless a different result obtains merely because bidders were directed to identify, by name and price, proposed subcontractors, if any. Plaintiffs argue that since the general contractor had to disclose this information, those subcontractors proposed by the successful general contractor should have status equal to that of the general contractor submitting the lowest and best bid, i. e., that they cannot be rejected (or ignored) except for reasonable grounds, which they assert did not exist in this case.
We note that in Parker, Walley and other cases cited by plaintiffs, the Mississippi Supreme Court was concerned with the school board's rejection of bids by contractors, and not with proposals by subcontractors submitted to a bidding contractor. We are not persuaded that the Parker rule should extend to persons other than those who directly submit bids to school trustees or public officers pursuant to express invitation. Neither Kleban nor Roberts did so, and the Board was without power to require Watson to accept their proposals. Unlike some states, Mississippi has no statute which forbids the successful prime contractor on a public contract from shopping among subcontractors after the opening of bids.[12] The Mississippi statutes referred to do not, in our opinion, encompass subcontractors as bidders where the public authority itself does not receive bids from them. Since the Board was not to let contracts to Kleban or Roberts, the statutory requirement that reasons for their rejection be spread upon official minutes does not apply.
Kleban next presses the claim that, apart from statute, the specifications which the Board adopted imposed upon it an obligation to accept the subcontractors proposed by Watson as successful bidder unless there was "reasonable objection" after "due investigation", as recited in AIA General Conditions (5.2.1. Fn. 8); and it asserts that this provision prevented the Board from disapproving a subcontractor without adequate reason. The Board suggests that other clauses in the General Conditions *812 and Bid Information convey a different meaning, and bestow an unfettered power of disapproval. Section 5.1.3 of General Conditions provides "nothing contained in the contract documents shall create any contractual relation between the owner and any subcontractor." Information to Bidders (¶3 3-1) specifically provides that any proposed subcontractor "must be acceptable to the owner". We believe that the several clauses, when construed together, vest the Board with the power to reject a proposed subcontractor so long as it acts in good faith and upon a reasonable basis. To this extent, the specifications do afford a measure of protection to successful subcontractors not granted by the State's statutory or case law. This conclusion, however, is not dispositive of the issues because of the particular facts shown by the record.
The clause in the bid instructions that bidders should complete a separate form headed "Data on Specialty Items" (Fn. 2) was inserted by the architect. As Rosamond testified, the information thus elicited was kept by him confidentially and not submitted to the Board at the time of bid opening. Rosamond emphasized that such details were of no interest to the Board but were sought by him in aid of a three-fold purpose: (a) to encourage general contractors not to shop for lower subcontract proposals after bids were opened; (b) to enable the architect to calculate the fee to be paid by him for structural engineering services on specialty items; and (c) to enable the architect to anticipate costs on other projects in the future. In fact, Watson did not wholly comply with the directions since it failed to list separately the items of plumbing construction, mechanical construction (HV&A/C) and mechanical utilities; instead, he gave only a gross price and the name of one subcontractor for all three items; and he submitted another firm, not Roberts, as the electrical subcontractor. The evidence discloses that it was up to the general contractor to do his own negotiating with various specialists of his choice, the Board having no control over the character or duration of the negotiation. In preparing the submission of its bid, Watson obtained informal proposals from different subcontractors offering the same service, and notwithstanding the listing confidentially submitted, Watson continued to have discussions with them. Neither Watson nor those with whom it dealt regarded themselves bound by firm proposals, or that their negotiations were frozen by the opening of bids. This is emphasized by the fact that proposals from both Roberts and Central were solicited by Watson after bids were opened. Watson, not the Board, chose Central over Roberts for the electrical portion of the work. It would be unjust to hold the Board liable to Roberts merely because it acquiesced in, or failed to object to, a decision which Watson made in its own pecuniary interest. Roberts' claim, being without merit, must fail.
As regards Kleban's claim, the facts are somewhat different. Kleban submitted the "lowest and best bid" as mechanical engineering subcontractor and would have been used except for the Board's disapproval. Assuming Kleban had status protected by the specifications, it does not necessarily follow that the Board incurred liability to Kleban by rejecting it as a proposed subcontractor for the Board did find Kleban unacceptable upon adequate grounds. Although it is without serious dispute that Kleban was an experienced and competent engineering firm, financially able to carry out its commitments, nevertheless the Board justifiably had a special concern for the prompt performance of the contracts and securing cooperative subcontractors to expedite the work. Time was very much of the essence in the erection of these two widely separated major school buildings, designed to house all students attending public schools under the Board's jurisdiction. The specifications required a completion date by August 1, 1971, allowing the general contractor, and his subcontractors, no more than nine months within *813 which to have the buildings ready for occupancy at the beginning of the 1971-72 school year. The Board was under federal court mandate to desegregate its schools without continuing delay. That order had recognized the necessity for new buildings to accomplish meaningful desegregation and also to avoid impending loss of accreditation by state school authorities on account of wholly inadequate physical facilities. Confronted by such demanding circumstances, the Board was understandably apprehensive as to likely sources of difficulty which might produce delay. Without elaborating on the evidence, it is sufficient to say that the Board and Superintendent Ball in disapproving Kleban did not act from bias, spite or animosity, but upon judgment that Kleban, on the basis of past jobs, might well slow the progress of construction and make it difficult to meet the firm deadline fixed by the Board. The Board was concerned with Kleban's reputation for promptness in performance and for having a cooperative attitude in working with other contractors. The expressions of dissatisfaction which the Board received concerning the firm's performance on other jobs cannot be dismissed as irrelevant, and were proper for the Board to consider. It is not for this court to say that the Board reached the correct conclusion on the basis of its investigation, but it is enough for us to conclude, as we do, that a factual basis did exist for its decision. The factors which were of concern to the Board are of sufficient substance to preclude this court from finding that the Board acted arbitrarily or capriciously and that it should be cast in damages for its decision. School trustees should be accorded reasonable latitude in the discharge of important duties which they render on behalf of the public. When all of the considerations are weighed, the court holds that the Board did not exceed the bounds of reasonable discretion, and acted in good faith when it determined that Kleban was not acceptable as a subcontractor.
For the above reasons, the claims of both Kleban and Roberts should be denied and their complaint dismissed with prejudice.
Let an order be entered accordingly.
NOTES
[1] Suit was originally begun December 12, 1970, in the Chancery Court of Monroe County, and removed to federal district court because of this court's prior orders entered in WC 70-71-K styled United States of America, plaintiff, v. Pontotoc County School District, et al, defendants, desegregating the county schools, ordering the construction of the two school buildings after resolving disputes concerning building sites, and granting other injunctive relief. Although no party has questioned our jurisdiction, we conclude that we are vested with ancillary jurisdiction to determine the present controversy because of the many-faceted aspects of the prolonged litigation aimed at establishment of a unitary school system in Pontotoc County, as reflected by the extensive prior hearings and various injunctive orders of this court, which we judicially note. Wright, Law of Federal Courts, 2d Ed., § 9, p. 19.
[2] This breakdown, depending upon whether the bidder made a lump-sum bid for either or both of the schools, called for information pertinent to this case as follows:
(a) Amount of plumbing construction and name of subcontractor;
(b) Amount of mechanical construction (heating, ventilation and air conditioning) and name of subcontractor;
(c) Amount of mechanical utilities and name of subcontractor;
(d) Amount of electrical construction and name of subcontractor.
[3] Its original bid was $1,972,000, of which $799,000 was allocable to Ecru and $1,173,000 to Springville.
[4] Watson actually submitted to Rosamond two lump-sum proposals for all mechanical work from Kleban, one for $350,000 and one for $347,000. This discrepancy is without consequence and merely indicates the sequence of negotiations between Watson and Kleban.
[5] At trial it developed that Central's bid for the combined mechanical and electrical work was $30,000 less than the total of the Kleban and Roberts bids, but this reduction in price was not credited against the Watson bid price as general contractor. Watson seeks to justify this by asserting that Hankins' original bid, which was used to calculate the electrical cost, was erroneously low.
[6] This was an overall reduction of $359,110.56 from Watson's original bid (Fn. 3), and resulted from the Board's taking certain alternate deductions submitted as a part of the bid and issuing change orders. This was done to bring the project within available funds.
[7] These sources included certain engineers, contractors, and owners' representatives of three projects on which Kleban had been awarded mechanical engineering subcontracts, to-wit: Ruth's Department Store at Columbus, Golden Triangle Vo-Tech Center at Mayhew, and Dairy Science Building at Mississippi State University.
[8] AIA General Conditions in pertinent part provide:
"Unless otherwise specified in the Contract Documents or in the Instructions to Bidders, the Contractor, as soon as practicable after the award of the Contract, shall furnish to the Architect in writing for acceptance by the Owner and the Architect a list of the names of the Subcontractors proposed for the principal portions of the Work. The Architect shall promptly notify the Contractor in writing if either the Owner or the Architect, after due investigation, has reasonable objection to any Subcontractor on such list and does not accept him. Failure of the Owner or Architect to make objection promptly to any Subcontractor on the list shall constitute acceptance of such Subcontractor."
[9] Kleban relies upon Miss.Code § 6231-02 (Supp.1971), which regulates the awarding of contracts by a school board upon competitive bids, directs that contracts be made to the lowest and best bidder and further provides in relevant part: "Provided, however, [that] when such school board [shall] not let contracts to the lowest bidder . . . the reasons therefor shall be recorded on the minutes of the school board." The minutes of the school board in this case are silent as to the reasons for rejecting Kleban and for failing to approve Roberts.
[10] Information to Bidders, ¶ 3(a-1) reads: "The bidder is specifically advised that any person, firm, or other party to whom it is proposed to award a subcontract under this contract must be acceptable to the owner and the architect."
[11] This statutory language appears not only in Code § 6231-02, cited by plaintiffs (Fn. 9), but also in § 6247-08 (Supp.1971) governing capital improvements made by any school district financed in part, as was the Pontotoc schools project, by funds from the state public school building fund pursuant to application approved by the State Educational Finance Commission.
[12] See, for example, the California statute discussed in Southern Calif. Acoustics v. C. V. Holder, Inc., 71 Cal. 2d 719, 79 Cal. Rptr. 319, 456 P.2d 975 (1969). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600729/ | 391 So. 2d 48 (1980)
Judith Anne Hoover GOWINS, Plaintiff-Appellant,
v.
Carroll E. GOWINS, Defendant-Appellee.
No. 7889.
Court of Appeal of Louisiana, Third Circuit.
November 12, 1980.
*49 Luse & Lee, Donna W. Lee, Hoover & Wade, Robert D. Hoover, Baton Rouge, for plaintiff-appellant.
Gravel, Robertson & Brady, Robert L. Royer, Alexandria, for defendant-appellee.
Before FORET, DOUCET and LABORDE, JJ.
FORET, Judge.
This action arises out of a rule to show cause wherein plaintiff-in-rule, Carroll Gowins, sought to have specified visitation rights with his children. His wife, Judith Gowins, was made the defendant-in-rule.
The trial court rendered judgment in favor of Carroll Gowins, and Judith Gowins has appealed.
Judith Gowins (appellant) filed suit on July 2, 1979, seeking a separation from Carroll E. Gowins (appellee) on the grounds of cruel treatment. Appellee is a major in the United States Air Force, stationed in South Dakota. The appellant sought, and subsequently obtained, the permanent care, custody, and control of the three minor children born of the marriage. The three children, Wendy, Michelle and Jennifer are 16, 12 and 9 years of age, respectively.
The trial court, in that proceeding, granted appellee reasonable visitation rights to be exercised in the home of the appellant's parents, where she was residing at the time. This arrangement was made by stipulation of the parties.
Carroll Gowins then filed the present rule to show cause on November 16, 1979. The trial court ordered the appellant to show cause why appellee should not be awarded specified visitation rights during the 1979 Christmas holiday season and in the future, generally, which rights may be exercised out of the presence of appellant or her parents. The trial court held a hearing on this rule on March 17, 1980, and rendered the following judgment, which reads, in pertinent part, as follows:
"IT IS ORDERED, ADJUDGED, AND DECREED that with respect to each child, visitation rights for the children are to be with their father, Carroll E. Gowins, at a place selected by him, one weekend per month, with two weeks during the summer, in South Dakota, or wherever the father may select, and also each alternate Christmas season, commencing with the 1980 Christmas season, to commence at 12:00 o'clock noon on December 23, 1980, and terminate at 12:00 o'clock noon on December 26, 1980. The weekend visitations will commence at 5:00 o'clock p.m. on Friday, and terminate at 6:00 o'clock p.m. on Sunday, commencing the weekend of March 22-23, 1980, except that with respect to the commencing weekend, the visitation rights will commence at 12:00 o'clock noon on Saturday, March 22, and terminate at 6:00 o'clock p.m. on March 23, 1980.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that with the exception of the weekend of March 22-23, 1980, the father should give a two-week's notice in advance to the mother of his visitation intentions, and the mother will have the responsibility of keeping the father advised with respect to her correct mailing address."
It is well settled that the paramount consideration in determining visitation rights following a separation or divorce is the welfare of the child. Reavill v. Reavill, 370 So. 2d 175 (La.App. 3 Cir. 1979); Johnson v. Johnson, 357 So. 2d 69 (La.App. 4 Cir. 1978), writ denied, 359 So. 2d 197 (La. 1978). As such, the trial court is vested with a broad discretion in its award of visitation privileges to a parent. Reavill v. Reavill, supra; Spencer v. Spencer, 273 So. 2d 605 (La.App. 4 Cir. 1973). The award of the trial court will not be disturbed on review absent an abuse of that discretion, a specific finding that the physical health, emotional stability or moral well being of a child is adversely affected, or that the visitation is tantamount to a division of custody. Spencer v. Spencer, supra.
*50 Appellant argues that the judgment of the trial court allowed the appellee to visit one, two, or all three of the children during the specified visitation, thereby dividing the children during that period of time which amounts to prohibited divided custody. The appellant cites a number of cases which it feels point out the error of the trial court. We have examined these cases and find that none are apposite to the case at bar. We find no merit to this contention by appellant either in fact or in law.
We likewise find no merit to appellant's argument that the father should be denied visitation rights of his children because of an emotional problem. There is no medical evidence whatsoever in the record to support that contention.
Finding, not only that there is no manifest error in the trial court's ruling, but on the contrary, such judgment to be justified, we affirm the judgment of the trial court.
All costs of this appeal are assessed against plaintiff-appellant, Judith Anne Hoover Gowins.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600726/ | 173 N.W.2d 887 (1970)
185 Neb. 103
STATE of Nebraska, Appellant,
v.
Richard Brent CHERRY, Appellee.
No. 37360.
Supreme Court of Nebraska.
January 23, 1970.
George A. Sommer, Scottsbluff, for appellant.
Robert M. Harris, Scottsbluff, for appellee.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
SPENCER, Justice.
Richard Brent Cherry, hereinafter referred to as defendant, was convicted in police court at Scottsbluff, Nebraska, on a complaint charging that he unlawfully engaged in disorderly conduct by urinating in public. On appeal the district court sustained a motion to quash, refused to grant leave to file an amended complaint, and dismissed the complaint. The State perfected an appeal to this court.
Essentially, defendant's contention is that the complaint does not state facts sufficient *888 to constitute an offense under the ordinances of Scottsbluff, and that the complaint does not state facts sufficient to constitute an offense which the city has power to define as disorderly conduct under the statutes of the State of Nebraska.
The complaint is as follows: "The complaint and information of George A. Sommer who, being duly sworn on oath says that Richard B. Cherry defendant, on or about the 25th day of Jan, 1969, within the corporate limits of the city of Scottsbluff, Scotts Bluff County, Nebraska then and there being, did unlawfully engage in disorderly conduct by urinating in Public contrary to the ordinance in that behalf provided."
Section 1 of ordinance No. 1566 of the city of Scottsbluff is as follows: "`14-301. It shall be unlawful for any person or persons within the city to indulge or engage in any riotous, tumultuous or disorderly conduct; to take part in any disorderly assembly; to be an inmate of a disorderly house or attend or visit any such house; to fight by agreement or otherwise; to quarrel; to engage in lewd, indecent or lascivious behavior; or to do or engage in any other disorderly act or conduct tending to disturb the peace and quiet of the city.'"
Scottsbluff is a city of the first class. Section 16-228, R.R.S.1943, provides as follows: "A city of the first class by ordinance may provide for the punishment of persons disturbing the peace and good order of the city by clamor and noise, by intoxication, drunkenness, fighting, or using obscene or profane language in the streets or other public places, or otherwise violating the public peace by indecent and disorderly conduct, or by lewd or lascivious behavior."
It should be obvious that each and every act which may constitute disorderly conduct cannot be particularized in an ordinance. It is sufficient to categorize generally those groups of offenses to be prohibited. The motion to quash should have been overruled.
Defendant's conduct, depending upon the circumstances, would be embraced within the general term "indecent behavior" and could, by shocking the public sense of morality, be a disorderly act which in our society might tend to disturb the peace and quiet of the city.
The term "disorderly conduct" is one of general or indefinite meaning, but generally signifies any conduct which tends to breach the peace or to disturb those who see or hear it; to endanger the morals, safety, or health of the community; or to shock the public sense of morality. See State v. Sukovaty, 178 Neb. 779, 135 N.W.2d 467.
This action, although criminal in form, is a civil one for the collection of a penalty. In such cases the general rule is that unless there is a complete failure to state a cause of action, the complaint will be sufficient on appeal. See State v. Novak, 153 Neb. 596, 45 N.W.2d 625. The offense was described with sufficient particularity to inform the defendant as to the nature of the specific disorderly conduct with which he was charged. In any event, if the district court believed the complaint to be insufficient, which we do not, it should have permitted the filing of an amended complaint. See Rolfsmeier v. State, 163 Neb. 659, 80 N.W.2d 885.
The judgment of dismissal is set aside, the motion to quash overruled, and the cause is remanded for further proceedings consistent with this opinion.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441182/ | 968 N.E.2d 216 (2008)
383 Ill. App. 3d 1140
360 Ill. Dec. 137
IN RE K.G.
No. 1-07-2990.
Appellate Court of Illinois, First District.
September 3, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600964/ | 379 N.W.2d 762 (1986)
221 Neb. 619
STATE of Nebraska, Appellee,
v.
Luke J. SOULE, Appellant.
No. 85-029.
Supreme Court of Nebraska.
January 17, 1986.
James P. Miller and Owen A. Giles, for appellant.
Robert M. Spire, Atty. Gen., and Terry R. Schaaf, for appellee.
KRIVOSHA, C.J., and BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.
GRANT, Justice.
Defendant-appellant, Luke J. Soule, was charged and convicted on one count of burglary pursuant to Neb.Rev.Stat. § 28-507(1) (Reissue 1979). Soule was sentenced to 2 years on this burglary charge, to be served consecutively to a previously imposed sentence for robbery. Soule's sole assignment of error is that "[t]he Court below erred by overruling Appellant's motion for discharge made pursuant to [Neb. Rev.Stat. § 29-3805 (Cum.Supp.1984)]." For the reasons set forth hereinafter, we affirm.
Soule was charged in this case with burglary by criminal complaint filed February 6, 1984, in the county court for Sarpy County, *763 Nebraska. At that time Soule apparently was in custody at the Douglas County Corrections Center in Omaha, Nebraska, pending the resolution of a robbery charge filed against him in that jurisdiction. The robbery charge was resolved against Soule, and on April 26, 1984, Soule was committed to the Nebraska Department of Correctional Services (Department) to serve a sentence of 2 to 4 years.
On May 14, 1984, the sheriff of Sarpy County filed a detainer with the Department in connection with the burglary charge pending against Soule in Sarpy County. In a letter dated May 23, 1984, from Raymond E. Sankey, deputy administrator of detainer compacts for the Department, to Patrick Kelly, Sarpy County attorney, Sankey informed Kelly that "Soule is requesting a quick and speedy disposition of your charges under Section 3 of the Nebraska Mandatory Disposition of Instate Detainer's [sic] Act." That title is not used in the Nebraska statutes, but the letter refers to 1984 Neb.Laws, L.B. 591 (effective March 3, 1984), now reflected in Neb. Rev.Stat. §§ 29-3801 et seq. (Cum.Supp. 1984). Those statutes provide that a county attorney must bring to trial any pending indictment, information, or complaint within 180 days after request is made.
Under the procedure outlined in those statutes, the Director of Correctional Services (Director) must promptly inform, in writing, each prisoner in the custody of the Department of any untried indictment, information, or complaint against him or her in this state, of which the Director has knowledge, and of the prisoner's right to make a request for final disposition thereof. Such prisoner may request, in writing to the Director, final disposition of such untried charge. The Director then has the obligation to inform the appropriate county attorney as to the prisoner's status with the Department, and to inform the court in which the untried indictment, information, or complaint is pending of the prisoner's request for final disposition of the untried charge. The Director also must offer to deliver custody of such prisoner to the appropriate authority in the city or county in which the untried charge is pending.
Section 29-3805 provides that within 180 days after the county attorney receives the Director's certificate, or "within such additional time as the court for good cause shown in open court may grant, the untried indictment, information, or complaint shall be brought to trial with the prisoner or his or her counsel being present."
The letter from the Director's deputy, which operated as a certificate under §§ 29-3803 to 29-3805, was received by the county attorney of Sarpy County on May 24, 1984, and by the county court for Sarpy County on the same day.
Soule first appeared in county court in Sarpy County on September 19, 1984. At this hearing, counsel was appointed for Soule, bond was set, and his preliminary hearing was scheduled for October 4, 1984. On October 4 Soule appeared with counsel in the county court. On that date the court's records show the following:
Pre-Hearing Motion to continueDefendant Heard Oct.4, 1984 Defendant Present yes Defendant Counsel James Miller, P.D. State's Counsel John Irwin
Defendant moved for week's continuance to enable his counsel to prepare adequately for preliminary hearing State had no objectionOne week continuance grantedSo ordered.
/s/ ALBERT WALSH
Judge
Soule's preliminary hearing was held on October 11, 1984, and he was bound over to the district court to stand trial. An information was filed against Soule on the burglary charge in the district court for Sarpy County on October 15, 1984. Jury trial began on November 26, 1984, and Soule was found guilty of burglary on November 27.
At his sentencing on December 21, 1984, Soule's attorney made an oral motion to dismiss for failure of the State to bring Soule to trial within 180 days as required by § 29-3805. Two exhibits were received in evidence in support of this motion. These exhibits, together with the transcript of the county court proceedings, showed the time sequence and procedures set out *764 above. The trial court overruled Soule's motion and imposed a sentence to be served consecutively to Soule's Douglas County sentence. Soule timely appealed from the sentence.
Section 29-3805 provides in its entirety:
Within one hundred eighty days after the prosecutor receives a certificate from the director pursuant to section 29-3803 or 29-3804 or within such additional time as the court for good cause shown in open court may grant, the untried indictment, information, or complaint shall be brought to trial with the prisoner or his or her counsel being present. The parties may stipulate for a continuance or a continuance may be granted on a notice to the attorney of record and an opportunity for him or her to be heard. If the indictment, information, or complaint is not brought to trial within the time period stated in this section, including applicable continuances, no court of this state shall any longer have jurisdiction thereof nor shall the untried indictment, information, or complaint be of any further force or effect and it shall be dismissed with prejudice.
Pursuant to § 29-3805, the calculation of the time within which a defendant must be tried under this act begins to run after a prosecutor receives a certificate from the Director concerning a Nebraska prisoner's request for final disposition of a pending Nebraska charge.
The procedure under §§ 29-3801 to 29-3809 sets out a different timeframe from that set out in Neb.Rev.Stat. § 29-1207(2) (Reissue 1979) concerning mandatory disposition of untried indictments or informations within 6 months, or authorized continuances. Soule would have this court apply the law and decisions under the "speedy trial" requirements of Neb.Rev.Stat. §§ 29-1201 to 29-1209 (Reissue 1979) to this case. We decline to do so, and determine that §§ 29-3801 et seq. are much more akin to Neb.Rev.Stat. §§ 29-729 to 29-765 (Reissue 1979), referring to interstate detainers, as discussed in State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984).
In this case there is no question that Soule was brought to trial more than 180 days after his request was received by the prosecutor and filed in the county court. The letter from Raymond E. Sankey to Patrick Kelly acted as "a certificate from the director pursuant to section 29-3803 or 29-3804" as provided in § 29-3805. This letter was received by the county attorney of Sarpy County on May 24, 1984. Under § 29-3805 the 180-day period then began to run and would have expired on November 20, 1984, unless a continuance satisfying the statute had been granted. We hold that the time within which an instate prisoner must be tried under §§ 29-3801 to 29-3809 begins to run when the county attorney of the county in which an indictment, information, or complaint is pending receives notice from the Department of Correctional Services of the prisoner's request for a final determination of a pending Nebraska indictment, information, or complaint.
The trial court held and the evidence shows that in the county court for Sarpy County a 1-week continuance was requested by Soule's attorney and was granted to Soule to aid him in preparing for his preliminary hearing. At that time the complaint against Soule was pending in that court. The district court held that defendant's motion in the county court extended for 7 days the running of the 180 days under § 29-3805. We hold that a continuance granted at an instate prisoner's request in the county court where a complaint is pending against such a prisoner operates to extend the time within which such a prisoner must be brought to trial under § 29-3805.
The rulings of the district court conform to the statute in question. Section 29-3805 specifically provides that trial shall be held within 180 days after the prosecutor receives a certificate "or within such additional time as the court for good cause shown in open court may grant...." In this case defendant Soule, through his counsel, requested and obtained a 7-day continuance. Such action resulted in the *765 180-day period's being extended 7 days. Soule was brought to trial within that properly extended period. The trial court was correct in denying defendant's motion for discharge premised on § 29-3805.
Other courts have reached the same result under similar intrastate detainer statutes. Among other states, Missouri, Minnesota, North Dakota, and Colorado have adopted the Uniform Mandatory Disposition of Detainers Act, on which Nebraska's §§ 29-3801 et seq. are based. In Russell v. State, 624 S.W.2d 176 (Mo.App.1981), the court held that where a defendant files a motion within the 180-day period seeking a trial date beyond the 180-day limit, such a defendant is not then entitled to a discharge because the trial is held more than 180 days after the prisoner's request for final disposition of a pending case.
In State v. Hamilton, 268 N.W.2d 56 (Minn.1978), the court held that the granting of a prosecutor's motion for a continuance, if based on good cause, operated to extend the 6-month period within which the applicable Minnesota statutes required that Minnesota prisoners must be brought to trial on pending Minnesota charges.
In State v. Carlson, 258 N.W.2d 253 (N.D.1977), the court held that where counsel for the defendant and the State stipulated for a continuance, the period within which defendant had to be tried was extended for the period of the continuance. See, also, People v. Anderson, 649 P.2d 720 (Colo.App.1982).
By adopting §§ 29-3801 et seq. the Nebraska Legislature has provided a specific mechanism for a Nebraska prison inmate to assert his right to speedy trial on pending Nebraska charges. If the State fails to bring the defendant to trial timely, then dismissal of the charge is required. The statute itself, however, is written to provide an element of flexibility by providing an exception where a continuance is granted for good cause or agreement between the State and defendant.
The facts in this case show that defense counsel was the moving party for a continuance during a hearing in open court. The prosecutor had no objection. The decision of the trial court denying defendant's motion to dismiss was correct. Defendant's conviction and sentence are affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922258/ | 361 Mich. 44 (1960)
104 N.W.2d 772
LANSKI
v.
MONTEALEGRE.
Docket No. 48, Calendar No. 47,924.
Supreme Court of Michigan.
Decided September 15, 1960.
Theron D. Childs, Jr., for plaintiffs.
Small, Zick & Shaffer (Hahn & Zimmerman, of counsel), for defendants.
*46 SOURIS, J.
In 1919 William Eiler, defendants' predecessor in title, acquired title to about 20 acres of land near Lake Michigan in Berrien county. The land was unimproved except for 3 buildings and a residence located on what is now known as lot 1. Until about 1922 Mr. Eiler and another conducted a hotel and restaurant business in those buildings. In 1922 Mr. Eiler and his partner divided the land, his partner taking the business and moving it across the road, Mr. Eiler retaining part of the land, including lot 1, as well as a 30-foot access strip to Lake Michigan. He continued to maintain his residence in a stone house on lot 1. In 1923, 12-1/2 acres of the Eiler land were subdivided, but the plat thereof was not recorded. Beginning in October of 1923, lots were sold or improved and rented by Mr. Eiler, such sale and rental business being conducted from an office in his residence on lot 1. As the number of residents increased in his subdivision, Mr. Eiler sold water through a pipeline he established throughout the subdivision, and he operated a garbage disposal business. The office work and bookkeeping for these enterprises were conducted from the office in his residence on lot 1.
The plaintiffs are owners of lots in the subdivision and trace title to Mr. Eiler. All of their deeds, and almost all of the deeds executed by Mr. Eiler, contain restrictions against using the lots conveyed for commercial purposes. Although the wording varies somewhat, a typical restrictive clause reads as follows:
"Second parties and their successors and assigns shall not use said premises for any commercial enterprise or engage in any commercial undertaking thereon; it being expressly understood and agreed that renting single or duplex cottages is not considered commercializing."
*47 The Eilers retained lot 1, and it has passed by succession to the present defendants. In 1954 the defendants established a convalescent home on lot 1 in the building formerly used as the residence. That same year plaintiffs notified the defendants that such a use of lot 1 was a commercial undertaking; that the language in their deeds attached a reciprocal negative easement to lot 1; and that defendants' use of lot 1 as a convalescent home was in violation thereof. Since defendants continued to operate the home, plaintiffs instituted this action seeking an injunction in November of 1955. The lower court found that a reciprocal negative easement had been created and that the operation of a convalescent home was a violation of the restriction. A decree was entered permanently enjoining defendants' use of the land for such purpose.
Both parties agree upon the definition and effect of a reciprocal negative easement. There must have been a common owner of the related parcels of land, and in his various grants of the lots he must have included some restriction, either affirmative or negative, for the benefit of the land retained, evidencing a scheme or intent that the entire tract should be similarly treated. Once the plan is effectively put into operation, the burden he has placed upon the land conveyed is by operation of law reciprocally placed upon the land retained. In this way those who have purchased in reliance upon this particular restriction will be assured that the plan will be completely achieved. See Sanborn v. McLean, 233 Mich. 227 (60 A.L.R. 1212); Denhardt v. De Roo, 295 Mich. 223; Cook v. Bandeen, 356 Mich. 328.
That there was in this case a common owner of related parcels of land cannot be denied. Further, he was systematic in his inclusion of a covenant against the commercial use of the lots conveyed. The difficulty here lies in the fact that at the time of these *48 conveyances, Mr. Eiler used the office in his residence on lot 1 in connection with his various enterprises, viz., selling lots and renting cottages in the subdivision, selling water, and a garbage disposal service. The defendants assert that since lot 1 was being used for such "commercial" purposes at the time the plaintiffs purchased their lots, they could not have relied upon a future noncommercial use of the retained lot. They contend that the only plan or scheme evidenced by the restrictions is that the grantor was jealously guarding against competition by preventing any of the lots sold to be used for commercial purposes, meanwhile continuing his commercial use of the land retained. If such were true, 2 elements necessary for a reciprocal negative easement would be lacking: (1) reliance, and (2) an intent or general plan that the entire tract retained should be similarly restricted.
The question presented in the first instance, therefore, is whether or not lot 1 at the time of the conveyances was being used commercially within the scope of the deed restrictions. It should be noted that the restriction quoted above, and others used, expressly excludes renting cottages from the ban on "commercializing". This was one type of transaction Mr. Eiler conducted from his residence office on lot 1. Another was the sale of the lots within the subdivision. Such activities cannot be said to negative a reliance by plaintiffs that a general commercial activity would not be conducted on lot 1. Sale of the lots was necessary for the improvement of the subdivision, and the fact that Mr. Eiler conducted the sales from his home does not lend a commercial atmosphere to the site. Nor can his activities be said to negative an intent or general plan that the entire subdivision should be noncommercial in character. Such activities certainly do not lead us to the conclusion that the restrictions were to protect him *49 from competition in his real estate business. No one else owned the subdivision to sell.
The remaining enterprises conducted from lot 1 are 2 "land improvement" type endeavors which would tend to make the lots of his subdivision more desirable and therefore more easily sold. A water system and a pick-up service for garbage are virtual necessities now and were at the time of the conveyances. These "businesses" were no more than incidental to the sale of the subdivided lots, fringe benefits without which the area would be less desirable for a private summer resort. The fact that Mr. Eiler subsequently extended these services to areas adjacent to his subdivision does not make his use of lot 1 into a commercial activity. It only served to further the desirability of the entire area. The facts indicate an intent or general plan that the whole subdivision was to be a summer resort area. There are no elements lacking. The restriction against a commercial use was attached to lot 1 by virtue of the doctrine of reciprocal negative easements.
Even so, defendants contend, a nursing or convalescent home cannot be construed as "commercial activity." Perhaps at its inception the term commerce was particularly applicable to a mercantile activity, the buying and selling of goods. This is, of course, still its meaning in the narrow sense today. But the general plan for a private resort area found from the above facts indicates that a broader definition was intended. In its broad sense commercial activity includes any type of business or activity which is carried on for a profit. Mechanical Farm Equipment Distributors, Inc., v. Porter (CCA 9), 156 F2d 296; City of Sioux Falls v. Cleveland, 75 SD 548 (70 NW2d 62).
Defendants operate a convalescent home. A fee is charged and a profit is made. The services are open to the public if they can afford to pay. The *50 patients, the visitors, the nurses, and the over-all atmosphere detract from the general plan of the private, noncommercial resort area originally intended. Defendants' convalescent home is a commercial use of lot 1, in violation of the reciprocal negative easement imposed thereon by defendants' predecessor in title.
A further claim is made that the plaintiffs are guilty of laches. Since we find that no commercial activity in violation of the reciprocal negative easement took place until the establishment of the convalescent home in 1954, such claim is without foundation.
Decree affirmed. Costs to plaintiffs.
DETHMERS, C.J., and CARR, KELLY, SMITH, BLACK, EDWARDS, and KAVANAGH, JJ., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3038920/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-2746
___________
Mark Anthony Harris, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Mike Kemna; Amy Gertz; Jean Ann *
Johnson; Heather Townsend; Mark *
Parkhurst; Travis Plowman; Ruby *
Wright; Judy Huff, * [UNPUBLISHED]
*
Appellees. *
___________
Submitted: November 16, 2005
Filed: November 29, 2005
___________
Before BYE, MAGILL, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
Missouri state prisoner Mark Harris appeals the district court’s1 dismissal of his
42 U.S.C. § 1983 claim against numerous prison officials. Harris alleged that prison
officials failed to follow prison disciplinary regulations in violation of his due process
1
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
rights and that his sentence in disciplinary segregation violated his Eighth Amendment
right to be free from cruel and unusual punishment.
Having carefully reviewed the record, we note that defendants properly raised
a 42 U.S.C. § 1997e(a) lack-of-exhaustion affirmative defense, see Nerness v.
Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (per curiam) (Prison Litigation Reform
Act’s exhaustion requirement is affirmative defense that defendant has burden to plead
and prove), and the record contains no indication that Harris exhausted prison
remedies as to his Eighth Amendment claim. See Kozohorsky v. Harmon, 332 F.3d
1141, 1143 (8th Cir. 2003) (when multiple prison-condition claims have been joined,
§ 1997e(a) requires that all available prison grievance remedies be exhausted as to all
claims).
Accordingly, we affirm on the ground that Harris had failed to exhaust his
Eighth Amendment claim at the time of filing. See Johnson v. Jones, 340 F.3d 624,
627 (8th Cir. 2003) (if exhaustion is not completed at time of filing, dismissal is
mandatory). We also modify the dismissal to be without prejudice. See Calico Trailer
Mfg. Co. v. Ins. Co. of N. Am., 155 F.3d 976, 978 (1998) (affirming dismissal for
failure to exhaust administrative remedies, but modifying to be without prejudice).
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1600922/ | 391 So.2d 1185 (1980)
Edward J. LaGRAIZE, Jr.
v.
Artis BICKHAM, Lonnie Bickham, State Farm Mutual Automobile Insurance Company, Interstate Fire & Casualty Company, American Southern Insurance Company and Commercial Union Insurance Company.
No. 11004.
Court of Appeal of Louisiana, Fourth Circuit.
June 3, 1980.
On Rehearing November 25, 1980.
Rehearing Denied January 19, 1981.
*1186 Lambert, Nowalsky & Lambert, John D. Lambert, Jr., New Orleans, for plaintiff-appellant.
David M. Packard, Metairie, for defendant-appellee, Continental Insurance Co.
Bienvenu, Foster, Ryan & O'Bannon, Leonard A. Young, New Orleans, for defendants-appellees, Lonnie Bickham and State Farm Mutual Automobile Insurance Co.
*1187 Drury & Lozes, James H. Drury, New Orleans, for defendants-appellees, Carlo Ditta, Inc. and Commercial Union Insurance Co.
Weigand & Siegrist, Joseph J. Weigand, Jr., Houma, for defendant-appellee, Argonaut Southwest Insurance Co.
Before SAMUEL, REDMANN and SARTAIN, JJ.
SARTAIN, Judge.
In this case, Edward J. LaGraize, Jr. appeals the inadequacy of a civil jury award for personal injuries and special damages. We affirm.
LaGraize allegedly received serious bodily injuries on January 6, 1975, when the vehicle he was driving was hit from the rear by a truck driven by Artis Bickham and owned by his brother, Lonnie Bickham. He named as defendants both Bickhams and State Farm Mutual Automobile Insurance Company, the liability insurer of the Bickham truck; Carlo Ditta, Inc., the Bickhams' employer and Commercial Union Insurance Company, the liability insurer of Ditta. At the time of the accident LaGraize was driving a vehicle owned by his employer, New Orleans Armature Works. He joined as an additional defendant his employer's uninsured motorist carrier, Argonaut Southwest Insurance Company. Argonaut also intervened to recover the amounts it had paid under a workmen's compensation insurance policy under the provisions of R.S. 23:1103. The personal injury claim was tried to the jury and the workmen's compensation carrier's intervention was tried to the trial judge.
The jury returned a general verdict in favor of plaintiff in the amount of $15,000.00. Judgment was entered in this amount in favor of the plaintiff and against the aforementioned defendants on the main demand. State Farm's liability was limited to $4,400.00, the balance remaining under its liability coverage. The trial judge also entered judgment in favor of the workmen's compensation intervenor, Argonaut, in the amount of $235.00 for medical payments paid on behalf of plaintiff and for such other amounts as may be paid to the plaintiff in the future under the latter's workmen's compensation suit.[1] Plaintiff's motions for an additur and a new trial were overruled. This appeal followed.
Intermediate appellate review in quantum cases is now governed by the recent case of Reck v. Stevens, 373 So.2d 498 (La.1979). In Reck the court reemphasized previous decisions interpreting C.C. art. 1934(3) and the "much discretion" accorded the trier of fact under the article. Before an award may be considered as either excessive or inadequate, there must be an analysis of all of the facts and circumstances peculiar to the case at hand, including the individual claimant, and an initial determination based on such an analysis that there has been a clear abuse of the "much discretion" by the trier of fact. Only then may previous awards be resorted to as an aid in determining an appropriate award in the case under review. The quantum then may be reduced (or raised) to the highest (or the lowest) amount that is reasonably within the discretion of the trial court (judge or jury). Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). With these principles in mind, we look to the pertinent facts and circumstances in the instant matter.
On the day of the accident (January 6, 1975) plaintiff was seen by Dr. Truman Kerr, an orthopedic specialist. X-rays at the time of the upper and lower regions of the back evidenced no abnormalities. Plaintiff was given an injection of tetanus toxoid for an abrasion of the arm, a muscle relaxant, and Tylenol for his back complaints. Besides the abrasions of the left arm, Dr. Kerr was of the opinion that plaintiff sustained a muscle strain of the lumbosacral *1188 region. Dr. Kerr continued to treat plaintiff for a lumbosacral strain until March 24, 1975, at which time he discharged him. In the meantime, plaintiff complained of pain in the neck and arm and after prolonged sitting of pain in the back. Dr. Kerr attributed these latter complaints to an arthritic condition which was evidenced by the previous X-rays and prescribed an anti-inflammatory medicine known as Motrin. On a following visit he changed the prescription to another arthritic medicine known as Indocin. When this latter medicine proved ineffective, he had plaintiff return to Motrin. Dr. Kerr continued to treat plaintiff for an arthritic condition from September 11, 1975 until June 17, 1977. On a substantial number of these visits, plaintiff's major complaint was of pain in the cervical region, although admittedly on some of these occasions he did complain of low back pain. It also appeared that the Motrin prescription gave him some relief and on at least five visits to Dr. Kerr he expressed no complaints concerning his lower back. Repeated orthopedic examinations on these occasions revealed no disc-related problems. However, on the visit of June 17, 1977 plaintiff complained of pain in the left arm and buttock. This buttock complaint was the first indication to Dr. Kerr of a possible disc disorder, albeit subjective. Dr. Kerr then recommended that plaintiff see Dr. J. Carlos Pisarello, a neurosurgeon.
Conservative treatment administered by Dr. Pisarello was unsuccessful. Following a myelogram which proved positive, he performed a laminectomy on plaintiff at the L-4 level. This operation was performed on August 9, 1977. He last examined plaintiff on February 13, 1978, and considered the operation successful.
Both Dr. Kerr and Dr. Pisarello were of the opinion that the accident of January 6, 1975 resulted in disc injury.
There is, however, a serious factual dispute relative to the issue of causation. Neither of the above specialists were informed, or at least they made no note of it, of an incident that occurred in early February, 1977, when plaintiff experienced severe pain in his right arm and leg as he applied the brakes on his vehicle. He was in such discomfort that he returned home and did not go to work for the remainder of the day. Plaintiff stated that he called Dr. Kerr immediately for an appointment. Dr. Kerr's notes of that visit (February 1, 1977) and of the next visit (April 5, 1977) make no reference to the incident. While Dr. Kerr's notes of the February 1 visit indicate some back pain, the notes refer to "some tingling sensation in the arm and this lasted two days" and has presented "no problems since". Dr. Kerr's notes of the April 5 visit indicated some low back pain but nothing involving leg or buttock discomfort. X-rays taken in this later visit evidenced only the previously noted arthritic condition. Neurological examination by Dr. Kerr on both of these visits were normal.
On March 29, 1977 plaintiff, on his counsel's request, was seen by Dr. E. J. Dabezies, an orthopedic surgeon. This doctor, however, was called as a witness for the defendants. His testimony is to the effect that he could not associate the accident in January, 1975 to the herniated disc in June 1977. He stated in fact "to weigh this properly I think that the time interval is definitely a little bit too long." His conclusion was that the accident aggravated a previously existing dormant arthritic condition.
Mr. LaGraize, who was 57 years of age at the time of the accident, testified that he had experienced no back trouble prior to the accident. He was employed as a supervisor and was then earning a salary of approximately $15,000.00 per year. His employer continued his salary, including the week he was off work following the accident and during the periods of hospitalization in 1977. At the time of the trial plaintiff was earning a salary of $19,700.00 per year. While his supervisory position did not require it, plaintiff continued to assist in the moving of heavy machinery. He acknowledged that he performed the same duties for his employer from the date of the accident until the date of his surgery. However, he strongly contends that he was *1189 never relatively free of back pain throughout this period of time and still had similar pain and discomfort as of the date of the trial on the merits, March 5, 1979. His testimony relative to back pain is corroborated by that of his wife and a co-worker.
Germane to the issue of quantum, plaintiff introduced medical bills totaling the sum of $6,146.23. As stated above, the jury rendered a general verdict in the amount of $15,000.00.
Plaintiff contends that the award is grossly inadequate for two reasons: (1) the amount of medical expenses, if deducted, allows only approximately $9,000.00 for pain and suffering and residual disability; and (2) the jury award may be reduced even further by virtue of the judgment in favor of the workmen's compensation insurer-intervenor. We shall address these contentions in reverse order.
R.S. 23:1103 provides:
"In the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in R.S. 23:1102, and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six per cent per annum, and shall be satisfied by such payment.
"No compromise with such third person by either the employer or the injured employee or his dependent shall be binding upon or affect the rights of the others unless assented to by him. As amended Acts 1958, No. 109, § 1."
With respect to the apportionment of the jury award as between plaintiff and Argonaut, it may be helpful to particularize certain facts relative thereto. Prior to the trial on the merits in the instant matter, plaintiff was successful in his workmen's compensation suit against Argonaut. In that litigation he was awarded judgment (under the old Act) at the maximum rate of $65.00 per week for a total of 500 weeks and medical expenses of $5,882.08. This matter is now before this court on a suspensive appeal. The only medical payments made by Argonaut in the present tort suit were in the sum of $235.50 and judgment was awarded to it against plaintiff's award in this amount and for such other sums as Argonaut may be cast in the workmen's compensation suit.[2]
Plaintiff contends that inasmuch as he has continued to receive his salary from his employer he was precluded from claiming loss of wages in the present litigation. However, he now argues that it was error for the trial judge to refuse to permit him to acquaint the jury with the fact that any award it made to him would be subject to and burdened with a possible claim by the workmen's compensation carrier. We find this contention to be without merit and concur in the ruling of the trial judge. What plaintiff is in essence urging is that the jury might have been influenced thereby to award him a larger sum for pain and suffering.
The claim of plaintiff in tort for whatever items he is permitted in law to urge is one matter. The rights to reimbursement by either his employer or the latter's insurer is another matter. To accede to plaintiff's wishes in the instant case, as it relates *1190 to these rights, would tend to submit the tort-feasor to double exposure. The fact remains that for whatever reason he may have had, plaintiff chose not to make loss of wages an element of damages in his tort claim. Having made this decision he is bound by it.
The second contention of error, namely the inadequacy of the jury award when viewed in the light of extensive medical expenses, directs itself to the question of sufficiency of the general verdict.
As in all jury verdicts neither the presiding judge nor the appellate court has the benefit of findings of fact. If the jury concluded that the herniated intervertebral disc suffered by the plaintiff in June, 1977 resulted from the trauma in January, 1975, the total sum of $6,000.00 for medical expenses is attributable to the accident. If instead the jury believed plaintiff sustained only a lumbosacral strain in January, 1975, which aggravated a preexisting arthritic condition, only a small portion of the medical expenses would be related to the accident. If the first determination were made by the jury we would frankly conclude the award to be inadequate. If the second conclusion was reached by the jury, we would deem the award to be well within its discretion. There is substantial conflicting credible evidence, which we have noted above, in support of either conclusion. It is for this reason that we find no manifest error in the result reached by the jury. Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973); Reck v. Stevens, above.
This brings us to the final issue. Shortly after the judgment was signed, the defendants on April 5, 1979 deposited the sum of $18,788.14 in the registry of the court. This sum purportedly represented the face amount of the jury award, court costs, and accrued interest. Subsequently (June 8, 1979) the defendants deposited the additional sum of $576.00, representing jury fees. The court order permitting the deposit, in pertinent part, provided that the sum "shall rest in the Registry of the Court for the account of Edward J. LaGraize, Jr., and Argonaut Southwest Insurance Company, as their interests may appear, to be withdrawn by the said plaintiff and intervenor at all (sic) and without prejudice upon their filing of appropriate motions and the giving of proper receipt therefor."
Plaintiff filed two pleadings directed to the deposit. The first pleading was an objection on the grounds that C.C.P. art. 4652 required that defendants-insurers deposit the full limits of their respective policy coverage. The second pleading, in the alternative, was a request to withdraw the funds without prejudice under the authority of State Farm Mutual Automobile Insurance Co. v. Ray, 161 So.2d 148 (La.App. 3rd Cir. 1964); writ refused, May 4, 1964.
C.C.P. art. 4652 relates to concursus proceedings and it does require that before an insurance company can provoke the same it must admit liability and deposit the full amount of its policy limits. However, we do not find the article applicable under the present circumstances because this is not a concursus matter. The question is whether any defendant, once cast in judgment, may deposit in the registry of the court the full amount of the judgment, together with accrued costs and interest and thereby be relieved of added costs and interest in the event of an appeal by the plaintiff.
Plaintiff contends that there is no authority for such a procedure.[3] This we concede but we know of no statute or codal provision that prohibits such a procedure and sanction the same under the following conditions: There first must be a tender to and refusal to accept by the judgment creditor. The tender and/or the deposit must be for the full amount of the judgment, including costs and interest. It must be unconditional and constitute a complete waiver of any future defense as to liability on the part of the judgment debtor. Acceptance of the tender and/or withdrawal of the funds by the judgment creditor(s) is without prejudice to any of its (their) rights to appeal as *1191 to quantum. In the event of an increase in quantum on appeal, the judgment debtor is liable for all additional costs together with legal interest on the amount of the increase from date of judicial demand until paid. Under the above, the advantages to both the judgment creditor and debtor are apparent. The former has the benefit of his money and the latter is relieved of certain additional costs and neither is harmed.
The evidence in the trial court on the appropriateness of the deposit procedure invoked by the defendants and plaintiff's request to withdraw the funds was not transcribed. We can only assume that the same objections raised in the briefs submitted to us and in oral argument before us were also presented to the trial judge.
Plaintiff contends that neither the judgment in response to the jury verdict nor the order relating to the deposit should contain any reference to Argonaut for the primary reason that Argonaut has taken a suspensive appeal in the compensation suit and the judgment rendered therein is not final. He also contends that just the offering of the compensation judgment in the record is insufficient to prove intervenor's claim. Argonaut responds that when plaintiff's request to withdraw the deposited funds without restriction as to its (Argonaut's) rights was denied by the trial judge, plaintiff declined to take the money.
We think that plaintiff has misconstrued the purpose and intent of R.S. 23:1103, above.
The rights accorded an intervening compensation insurer under the statute and the jurisprudence interpreting the same are both retrospective and prospective. Such rights are retrospective in the sense that at the time of the finality of the tort judgment, the intervenor is entitled to immediate reimbursement of all sums actually paid as compensation benefits. In the instant case that is the $235.00, stipulated as medical expenses. The rights are prospective in the sense that the intervenor is entitled to a credit against future payments of compensation benefits, i. e., pro tanto release, until the amounts of such compensation benefits equal the balance remaining from the tort judgment. In the instant case, the intervenor has paid no weekly benefits and no other medical and is not required to do so until those amounts equal the presently remaining balance in the tort fund. The fact that the compensation suit is not final is of no consequence at this juncture. The actual accounting as between plaintiff and Argonaut vis a vis the tort suit and the compensation suit of necessity must await the final outcome of the latter litigation. In the meantime, the only claim Argonaut has to the tort award is the sum of $235.00. Billedeaux v. Adams, 360 So.2d 637 (La. App. 3rd Cir. 1978); Lachney v. Motor Parts & Bearing Supply, 357 So.2d 1277 (La.App. 3rd Cir. 1978); and Billeaud v. United States Fidelity & Guar. Co., 349 So.2d 1379 (La.App. 3rd Cir. 1977). See also Malone & Johnson, Workers' Compensation, 14 Louisiana Civil Law Treatise, Sec. 370.
Returning to the question of the deposit, we find the same to be without legal effect for two reasons. First, there is no showing whatsoever that any tender was made to the plaintiff prior to the deposit. Second, the deposit itself was inadequate. It did not initially include $576.00 jury cost. When this sum was added to the deposit on June 6, 1979, additional interest for the intervening month and a day was not included.
For the above reasons the judgment of the district court is affirmed. All costs relating to this appeal are to be borne by appellant. All other costs are assessed against defendants-appellees.
AFFIRMED.
ON REHEARING
We granted a general rehearing in this cause to reconsider our conclusion relative to quantum and in particular the claim of the intervenor (workers' compensation insurer) in light of the recent decision of the Supreme Court in Fontenot v. Hanover Ins. Co., 385 So.2d 238 (La.1980).
We reaffirm our determination as to quantum for the reasons stated in the original *1192 opinion. In short, we concluded that the jury's general award of $15,000.00 was based on its determination that plaintiff sustained a lumbosacral strain which aggravated a preexisting arthritic condition and not the herniated disc with attending medical expenses as plaintiff had urged. We found no manifest error and that the award itself was within the jury's discretion.
The workers' comensation suit referred to in footnote 1 of our original opinion has now been heard and affirmed by another panel of this court. It is cited at 387 So.2d 687 (La.App. 4th Cir. 1980) and as of this writing writs are pending before the Supreme Court. In the compensation suit judgment in favor of plaintiff was based on the determination that he sustained a lumbar disc herniation and incurred medical expenses therefor in the amount of $5,882.08, a conclusion rejected by the jury in the instant (tort) action.
In Fontenot v. Hanover Ins. Co., above, the Supreme Court held that an intervening workers' compensation insurer could not claim reimbursement for medical expenses paid an injured employee under the act where that employee was unsuccessful in recovering these expenses from the third party tortfeasor. The court reasoned: "The underlying policy of the workers' compensation statute provisions for apportionment of damages between employer and employee in suits against third persons merely prevents an employee's double recovery for his injuries; it does not require an employee to reimburse out of his award for pain and suffering medical expenses which he failed to recover from a third party tortfeasor." 385 So.2d 238, 239.
The judgment in the instant case awarded the intervening workers' compensation insurer the sum of $235.00 as reimbursement for medical expenses and "for the amounts awarded against it" (Argonaut) in the compensation suit. This latter sum, as noted above, was in the amount of $5,882.08. Applying Fontenot to the facts in the cause now before us, we hold that intervenor, Argonaut Southwest Insurance Company, is only entitled to receive out of plaintiff's award as reimbursement for medical expenses the sum of $235.00. Intervenor is not entitled to a credit of $5,882.08 for the medical expenses denoted in the compensation suit for the reason that plaintiff's claim for these expenses was rejected by the jury.
Intervenor has paid plaintiff no weekly compensation benefits as he has continued to work for and receive his salary from his employer. The judgment in the compensation suit, however, in pertinent part awarded "plaintiff 500 weeks of workman's compensation at the rate of $65.00 per week beginning January 13, 1975. Said defendant is to receive one week's credit of compensation paid for each week's wages paid to plaintiff in lieu of compensation."
Plaintiff claims that under the wording of the compensation judgment Argonaut is now entitled to either insist on reimbursement of $65.00 per week since January 13, 1975 which will consume his entire judgment[1] or plaintiff must wait a commensurate number of weeks before he is entitled to weekly benefits in the event he seeks the same. Argonaut on the other hand takes the position that plaintiff has misconstrued the statute and jurisprudence noted in our original opinion. It states that when the time comes that plaintiff is entitled to weekly compensation benefits it is entitled to a credit equal to the balance remaining in the tort fund before it is obligated to pay the same. We think Fontenot has rendered both of these contentions moot.
While Fontenot admittedly dealt with reimbursement for medical expenses, its rationale clearly contemplates reimbursement for weekly compensation benefits. To paraphrase (385 So.2d at 239), the compensation statute "does not require an employee to reimburse out of his award for pain and suffering [the weekly benefits for wage-replacement] which [wage-replacement] he failed to recover from a third party tortfeasor." Accordingly, Argonaut's right as an intervening compensation insurer is limited *1193 to reimbursement for expended medical expenses in the sum of $235.00, and the judgment of the district court will be amended to reflect the same.
With respect to the funds on deposit the defendants again urge that they be relieved of the additional costs and legal interest incurred after the deposit. In essence, they contend that the dispute between plaintiff and intervenor concerning these latter parties' rights should not redound to their (defendants') detriment. It is also conceded that the jury cost ($576.00) was not reflected in the clerk's cost sheet and when it was called to defendants' attention the deposit was immediately supplemented. We can sympathize with defendants' argument but the fact remains that total tender was not made. While the dispute between plaintiff and intervenor did place defendants in a difficult position, they must take the proceedings as they find them and where, as here, the dispute is not an arbitrary or capricious one, tender and release isn't possible. We hold the registry-deposit to be invalid. The funds on deposit now should be immediately released to the defendants-depositors. The plaintiff is entitled to collect on his judgment when the same becomes final as though the deposit was never made.
For these reasons the judgment of the district court relating to Argonaut's intervention is amended to read as follows:
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Argonaut Southwest Insurance Company's rights under this judgment and against the named defendants is limited to the sum of $235.00 and judgment is therefore rendered in favor of Argonaut Southwest Insurance Company in this amount and against defendants, Artis Bickham, Lonnie Bickham, State Farm Mutual Insurance Company, Carlo Ditta, Inc., Commercial Union Insurance Company, and Edward J. LaGraize, Jr., together with legal interest thereon until paid."
The judgment of the district court is further amended to declare the registry-deposit made by defendants on April 5, 1979 and June 8, 1979 to be void and without legal effect.
Accordingly, for reasons stated in our original decree the judgment of the district court is amended as hereinabove provided and, as amended, is affirmed. The cost of this appeal is to be divided equally between plaintiff and intervenor.
AMENDED AND AFFIRMED.
NOTES
[1] Placed in the record was a copy of the judgment rendered in suit No. 77-10121 from the Civil District Court for the Parish of Orleans, Division I, entitled Edward J. LaGraize, Jr. v. New Orleans Armature Works, a Division of Electrical Industries, Inc. and Argonaut Southwest Insurance Company.
[2] Ibid. The actual wording of the judgment in the workmen's compensation suit is:
"Said defendant is to receive one week's credit of compensation paid for each week's wages paid to plaintiff in lieu of compensation."
[3] Cf. C.C. arts. 2167 and 2168.
[1] For example: January 13, 1975 to December 13, 1980 = 308 weeks × $65.00 = $20,020.00. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1028600/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7513
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERBLONSKI LEON ADDISON, a/k/a Blonski,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:05-cr-00464-CMC-2)
Submitted: March 30, 2009 Decided: April 22, 2009
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Herbert W. Louthian, Sr., LOUTHIAN LAW FIRM, P.A., Columbia,
South Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Robert F. Daley, Jr., Jane Taylor, Assistant United
States Attorneys, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerblonski Leon Addison appeals a district court order
and amended judgment in a criminal case denying his motion for a
sentence reduction under 18 U.S.C. § 3582(c) (2006) based on
Amendments 706 and 711 to the Sentencing Guidelines. We affirm.
Addison pled guilty to conspiracy to possess with
intent to distribute and to distribute five kilograms or more of
cocaine and fifty grams or more of cocaine base, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A); 846 (2006). Based on a total
offense level of forty-one and a criminal history category of
VI, his resulting Guidelines range of imprisonment was 360
months to life. However, because he had two prior felony drug
convictions, his statutory mandatory minimum sentence was life,
which became his Guideline sentence. At sentencing, based on
the Government’s motion for a downward departure under U.S.
Sentencing Guidelines Manual § 5K1.1 and 18 U.S.C. § 3553(e)
(2006), the district court departed downward and sentenced
Addison to 292 months’ imprisonment. The court subsequently
denied Addison’s motion for a sentence reduction under
§ 3582(c), finding the statutory mandatory minimum sentence was
not affected by the Guidelines amendments. The court noted
Addison was not eligible for the reduction because he was
subjected to a statutory mandatory minimum sentence from which
the court previously departed based on his substantial
2
assistance. The court did grant the Government’s Fed. R. Crim.
P. 35 motion and resentenced Addison to 210 months’
imprisonment.
The legal interpretations of the Sentencing Guidelines
and the amendments are reviewed de novo. Factual findings are
reviewed for clear error. See United States v. Turner, 59 F.3d
481, 483-84 (4th Cir. 1995). We review the denial of a motion
for a reduction in the sentence under § 3582(c)(2) for abuse of
discretion. United States v. Goines, 357 F.3d 469, 478 (4th
Cir. 2004).
We find the district court properly found it was
without authority to modify Addison’s sentence pursuant to
Amendments 706 and 711 of the Sentencing Guidelines. See United
States v. Hood, 556 F.3d 226, 233-36 (4th Cir. 2009). In Hood,
the court held that Amendment 706 did not lower the statutory
mandatory minimum sentence and did not have the effect of
lowering Hood’s Guidelines range of imprisonment. Hood, 556
F.3d at 235-36. Likewise, because Addison’s sentence was not
based on a sentencing range authorized by U.S. Sentencing
Guidelines Manual § 2D1.1, which Amendments 706 and 711 amended,
it was not available for a modification under § 3582(c). See
Hood, 556 F.3d at 233.
Accordingly, we affirm the district court’s order and
amended judgment. We dispense with oral argument because the
3
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
4 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600719/ | 45 Wis.2d 368 (1970)
173 N.W.2d 153
HENRICKSEN and wife, Plaintiffs and Respondents,
v.
McCARROLL and wife, d/b/a JOY FARM COMPANY, Defendants and Respondents:
DEUTSCH, Defendant and Appellant.
No. 26.
Supreme Court of Wisconsin.
Argued November 26, 1969.
Decided January 9, 1970.
*372 For the defendant-appellant there was a brief by Kluwin, Dunphy, Hankin & Hayes of Milwaukee, and oral argument by John A. Kluwin.
For the plaintiffs-respondents there was a brief by Frisch, Dudek, Slattery & Denny, attorneys, and C. Michael Hausman of counsel, all of Milwaukee, and oral argument by Mr. Hausman.
For the defendants-respondents there was a brief by Wickham, Borgelt, Skogstad & Powell, attorneys, and Robert C. Watson of counsel, all of Milwaukee, and oral argument by Mr. Watson.
*373 BEILFUSS, J.
The defendant, Deutsch, contends (1) that the evidence does not support the jury's findings that he was causally negligent, (2) that the court's instructions as to the duties of the defendants as bailor and bailee were erroneous, and (3) that the evidence does not support the jury's findings of comparative negligence between the defendants as 70 percent to Deutsch and 10 percent to McCarroll.
The parties agree that the relationship between the defendants, Deutsch and McCarroll, was one of bailment. Deutsch, as bailor, delivered the horse to McCarroll, as bailee. McCarroll was to and did transport the horse to and from Indianapolis. The whole arrangement between Deutsch and McCarroll was a bailment for the mutual benefit of both the bailor and the bailee. Deutsch, the bailor, was to have his horse transported and McCarroll, the bailee, was to receive a fee for this service. It is undisputed that the owner of the horse was to furnish the halter and lead rope.
In 8 C. J. S., Bailments, pp. 384, 385, sec. 25, the duties of bailor for mutual benefit are set forth as follows:
"A bailor has the duty to use ordinary, due, or reasonable care to furnish chattels which are reasonably fit for the purposes of the bailment, or capable of the use, known or intended, for which they are bailed, ... To this end the bailor must use reasonable care to inspect or examine the chattel before delivering it to the bailee, particularly where it was made by a third person. Under other authorities, the bailor owes a duty to the bailee and to third persons to make the chattel safe for the use to which it is to be put, or to give warnings of the danger of which he knows, and to make any reasonable inspection of the chattel to ascertain any defect or dangerous conditions. ..." "A bailor is not an insurer against all damages or personal injuries suffered by reason of the defective condition of the bailed chattel, and the limit of the bailor's duty is to see that the bailed property is reasonably *374 safe for use. Accordingly, where the warranty is implied from the common law of bailments or from duties imposed by statute, he warrants only that he has exercised reasonable care to ascertain that the chattel is safe and suitable for the purpose intended by the bailee."
We are here concerned with the bailor's duties as they exist and apply to third persons (in this instance Henricksen). A statement of this rule appears in 8 C. J. S., Bailments, pp. 478, 479, sec. 40:
"A bailor violating his obligation to furnish property reasonably fit for the purpose for which hired, which obligation has been considered supra sec. 25, may be liable to third persons using such property, at the bailee's invitation, for injuries caused by its being in improper condition when delivered to the bailee; and a bailor intrusting a dangerous article to his bailee, knowing that it will be used in such a manner as to endanger persons and property, is chargeable with negligence and answerable in damages for any injury which, by the exercise of ordinary prudence, he could have foreseen.
"A lender of personal property is liable for injuries from defects in the property which render it dangerous when used for the purpose for which it is lent, where the lender has knowledge of such defects, and it has also been held that he may be liable, although he has no actual knowledge, where he could have ascertained or known of such defect by the exercise of proper care, although the latter has been denied. Moreover, a lessor or lender of a chattel is liable to those third persons whom he should expect to use the chattel, or to be in the vicinity of its probable use, for injuries resulting from the use of the chattel, where he knows or should realize that the chattel is likely to be dangerous for use, and has no reason to believe that such persons will realize its dangerous condition, and fails to exercise reasonable care to inform them thereof. However, he is not liable for injuries due to defects of which he has no knowledge and could not have discovered by the most careful scrutiny."
Under the facts as set forth above, we agree with the trial court that there was credible evidence by which the jury could reasonably conclude that the snap on the lead *375 rope was defective and that its defect was a cause of the horse escaping to the highway. The jury could further reasonably conclude that a reasonable inspection of the snap would have revealed its faulty condition, or that Deutsch knew, or in the exercise of reasonable care should have known, of the defect in view of its use and length of time it was in his possession. There is, therefore, sufficient credible evidence to sustain the finding of causal negligence on the part of Deutsch.
Defendant-appellant, Deutsch, has set forth the two bases upon which he argues the trial court erred in instructing the jury about each defendant's duty. First, he urges that the jury should have been required to find Deutsch had notice of the defect before he could be liable for furnishing the rope and snap in its faulty condition. Secondly, it is asserted that it should have been told McCarroll had a duty to inspect the snap upon receipt of the horse for transporting to Indiana. His duty to inspect and deliver was stated by the trial judge as follows:
"Now, as these rules apply to the defendant, Harry Deutsch, or his employee, you are instructed that a person who delivers personal property such as a horse over to the possession of another and also delivers equipment for aid in the control and confinement of that horse, he has a duty to exercise ordinary care to inspect and to deliver that equipment in such a condition that in its reasonable use the horse, in its actions and activities, will not injure or present an unreasonable risk of injury to persons or property of another."
Regarding the second instruction challenged, the jury was informed that McCarroll's duties included that of inspections. It was stated:
"As these rules apply to the defendant, Donald G. McCarroll or his employees, ... In this connection you may consider the knowledge of the defendant, Donald G. McCarroll, of the natural traits of this horse or of horses in general. You may further consider the method and the manner by which the equipment delivered with the *376 horse was inspected and used, the method and manner by which the horse was kept within the stall within the barn and within the property owned by the defendant, Donald G. McCarroll, known as the Joy Farm."
We are of the opinion that these instructions were not erroneous or inadequate for the purpose stated.
The defendant-appellant, Deutsch, contends that evidence does not support the jury's apportionment of negligence. We agree with this contention.
Admittedly, the court is reluctant to set aside jury apportionments of negligence. In Vanderkarr v. Bergsma (1969), 43 Wis. 2d 556, 563, 168 N. W. 2d 880, we stated:
"The defendant's burden on appeal is difficult when he seeks to upset the jury's apportionment of negligence.
"`In Ernst v. Greenwald (1967), 35 Wis. 2d 763, 773, 151 N. W. 2d 706, we stated that this court would set aside a jury's finding apportioning negligence only if at least one of three factors were present: (1) If, as a matter of law, the plaintiff's negligence equaled or exceeded that of the defendant; (2) if the percentages attributed to the parties (in light of the facts) are grossly disproportionate; and (3) if there was such a complete failure of proof that the verdict could only be based upon speculation.' Lautenschlager v. Hamburg (1969), 41 Wis. 2d 623, 627, 628, 165 N. W. 2d 129."
The jury attributed 70 percent of the causal negligence to Deutsch and only 10 percent to McCarroll (the plaintiff automobile driver was found to be 20 percent causally negligent). Deutsch had a duty to furnish reasonably adequate equipment and to inspect it for defects. McCarroll also had a duty to inspect the equipment; and having undertaken to keep the horse he had the duty to use ordinary care to secure the horse, both as to tying it in the stall and locking the barn doors, knowing that if the horse left the barn it had access to a busy highway. McCarroll was in a superior position to foresee that injury to others could result from the escape of the horse.
*377 We believe that the 70-10 percent apportionment of the causal negligence is grossly disproportionate and that the defendant Deutsch should be awarded a new trial in the interest of justice pursuant to sec. 251.09, Stats.
Because no issues have been presented as to the negligence and the damages of the plaintiff-respondent Leo Henricksen, the new trial will be limited to a finding of causal negligence between the defendant-appellant Deutsch and the defendant-respondent Donald McCarroll. In the verdict to be submitted the trial court will find the plaintiff Leo Henricksen 20 percent causally negligent and will find the damages as heretofore determined.
By the Court.Judgment reversed and a new trial ordered consistent with the opinion. Defendant-appellant Deutsch to be awarded costs as against the defendant respondent Donald McCarroll, and plaintiff-respondent Leo Henricksen to be awarded costs as against defendant appellant Deutsch.
HALLOWS, C. J. (concurring in part).
This case is another example of why this court, instead of reversing in the interest of justice under sec. 251.09, Stats., when it finds the apportionment of causal negligence grossly disproportionate, should find error on the part of the jury on the ground the determination is contrary to the evidence. If error were found, this court could determine the apportionment of negligence and grant an option under the Powers rule and thus possibly avoid a new trial on the apportionment issue. This court with increasing frequency is setting aside apportionments of negligence in the interest of justice and it is time to extend the Powers rule to apportionment. At least the rule could apply to those situations in which the court could not find as a matter of law that the negligence of the plaintiff equaled that of the defendant. But even in those situations I would abolish the outmoded and arbitrary rule which prevents a plaintiff from recovering when his *378 negligence equals or exceeds that of a person against whom recovery is sought. See Lawyer v. Parks Falls (1967), 35 Wis. 2d 308, 151 N. W. 2d 68; Pruss v. Strube (1968), 37 Wis. 2d 539, 155 N. W. 2d 650. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600720/ | 391 So.2d 358 (1980)
Isaac CHAPPELL, Appellant,
v.
FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
No. 80-1076.
District Court of Appeal of Florida, Fifth District.
December 18, 1980.
*359 Charles R. Colbrunn, of Greater Orlando Area Legal Services, Inc., Orlando, for appellant.
George L. Waas, Asst. Gen. Counsel, Tallahassee, for amicus curiae, Florida Dept. of Health & Rehabilitative Services, Inc.
Jim Smith, Atty. Gen., Tallahassee and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for amicus curiae, Florida Dept. of Legal Affairs.
William K. Howell, Jr., Asst. County Atty., DeLand, for amicus curiae, Volusia County.
Bruce M. Fried, Tallahassee, for amicus curiae, Florida Legal Services, Inc.
ON MOTION TO REVIEW CLERK'S DENIAL OF APPELLANT'S CERTIFICATE OF INDIGENCY
SHARP, Judge.
Chappell filed an appeal from an administrative proceeding without depositing the appellate court filing fee required by Florida Rule of Appellate Procedure 9.110(b) and section 35.22(3), Florida Statutes (1977). Pursuant to section 57.081(1), Florida Statutes (1980), Chappell filed a certificate, declaring himself indigent, which was executed by an attorney in the office of General Counsel, Florida Department of Health & Rehabilitative Services, "As Department Clerk." The certificate was accompanied by Chappell's affidavit of indigency, certified by his attorney, Colbrunn, with the Greater Orlando Area Legal Services, Inc. The clerk of this court refused to allow the appeal to proceed and Chappell filed a motion seeking review of the clerk's actions. We stayed the dismissal of the appeal, invited the filing of amicus curiae briefs, and set oral argument because (we agree with the appellant) the issues are of great public importance and interest.
*360 The first issue is whether or not Chapter 80-348, Laws of Florida (1980) (section 57.081, Florida Statutes), permits the appellate courts to waive filing fees in civil cases for indigents. The recently revised statute provides:
(1) Any indigent person who is a party or intervenor in any judicial or administrative agency proceeding or who initiates such proceeding shall receive the services of the courts, sheriffs, and clerks, with respect to such proceedings, without charge. No prepayment of costs to any judge, clerk or sheriff is required in any action when the party has obtained a certification of indigency from the clerk in each proceeding, based on an affidavit filed with him that the applicant is indigent and unable to pay the charges otherwise payable by law to any of such officers. When the person is represented by an attorney, the affidavit shall be supported by a written certificate signed by the attorney representing the person that he has made an investigation to ascertain the truth of the applicant's affidavit and that he believes it to be true; that he has investigated the nature of the applicant's position and that in his opinion it is meritorious as a matter of law; and that he has not been paid or promised payment of any remuneration for his service and intends to act as attorney for applicant without compensation. On the failure or refusal of the clerk to issue a certificate of indigency, the applicant is entitled to a review of his application for the certificate by the court having jurisdiction of the cause of action.
The original statute on this subject expressly provided it applied to appeal proceedings. § 58.09, Fla. Stat. (repealed 1957). The succeeding statute made no reference to appeals but it contained references which restricted its application to trial and circuit level proceedings. Section 57.081(1), Florida Statutes (1979) provided:
(1) Insolvent and poverty-stricken persons having actionable claims or demands shall receive the services of the courts, sheriffs, and clerks of the county in which they reside without charge. No prepayment of costs to any judge, clerk, or sheriff in the county is required in any action when the party has obtained a certification of insolvency from the clerk in each action, based on affidavits filed with him that the applicant is insolvent and unable to pay the charges otherwise payable by law to any of such officers... . (Emphasis added).
The courts concluded section 57.081(1), Florida Statutes (1979) did not apply to appellate courts.[1]
The most recent statutory amendment deleted the expressions "courts, sheriffs, and clerks of the county in which they reside," and "plaintiff" and replaced them with the more comprehensive terms, "any ... person who is a party in any judicial or administrative agency proceeding." (Emphasis supplied). Because the plain meaning of the 1980 statute indicates appellate proceedings are included,[2] and because the Legislature presumptively intended a change in the prior statute[3] we conclude that Chapter 80-348, Laws of Florida (1980), encompasses appellate court proceedings.
Our next problem is to clarify the procedure for carrying out Chapter 80-348 in the appellate court. Florida Rule of Appellate Procedure 9.430 provides:
A party who has the right to seek review without the payment of costs shall file a motion in the lower tribunal, with an affidavit showing his inability to pay fees and costs or give security therefore. If the motion is granted, the party may proceed without further application to the court and without prepayment of fees *361 or costs in either the lower tribunal or the court or the giving of security therefore. If the motion is denied, the lower tribunal shall state in writing the reason therefore. Review shall be by motion filed in the court.
Florida Rule of Judicial Administration 2.040(b)(3) provides:
In all cases filed in the court, the clerk shall require the payment of a fee as provided by law at the time the notice, petition or other initial pleading is filed. The payment shall not be extracted in advance in appeals in which a party has been adjudicated insolvent for the purpose of an appeal or in appeals in which the state is the real party in interest as the moving party... .
Both of these rules contemplate some action being taken by the lower tribunal or agency. Chapter 80-348 merely requires a certification of indigency from "the clerk in each proceeding."[4]
To the extent there is a conflict between the rules and the statute as to matters of procedure rather than substantive law, the rules must prevail.[5] Therefore, the obtaining of a "certification of indigency from the clerk" of the lower tribunal will not suffice. A party seeking to obtain waiver of appellate court fees must file a motion in the lower tribunal or administrative agency, accompanied by affidavits showing his inability to pay fees.[6] In addition, if he is represented by an attorney, the attorney must file the certificate required by Chapter 80-348. The attorney should include in his affidavit a statement of whether or not, to the best of his knowledge, his employer, association or agency has funds available to pay appellate filing fees, and the lower court or agency may consider those matters in determining whether or not the applicant is able to pay the filing fees. The lower court or agency will make these determinations, which shall be reviewable by this court pursuant to Rule 9.430.[7]
Because Chappell did not obtain an order from the administrative agency establishing his indigency and inability to pay, but merely obtained a certificate from an attorney "as clerk," he did not comply with Rule 9.430 or Rule 2.040(b)(3). The clerk of this court was correct in refusing to let Chappell's appeal proceed in this posture. However, because of the lack of judicial interpretation of chapter 80-348, and its lack of clarity read in the context of the rules, we will hold this appeal in abeyance and remand this proceeding to the administrative agency for a period of 30 days to permit the appellant to obtain an order or adjudication of his indigency and inability to pay the appellate fees.
This cause is therefore REMANDED.
COBB, J., concurs.
DAUKSCH, C.J., concurring specially with opinion.
DAUKSCH, Chief Judge, concurring specially:
I concur with the most complete opinion of the majority and merely would add two thoughts. First, none of the briefs filed as a part of these proceedings differed with the position of appellant as to the fact that indigent persons are entitled to have their appeals filed without cost to them. Second, no one but this court suggested that in order for a person to be indigent for appellate court fee purposes the agency, such as the Greater Orlando Area Legal Services, *362 Inc., which provides the free legal counsel, should also have no funds with which to provide the court fee. There is no evidence in this record from which we can ascertain how the Greater Orlando Area Legal Services, Inc. is funded but certainly if some of the funding is from federal or other governmental funding, and at least a part of the provisions of the funds is for filing fees, then this court should not accept the appeal without the fee. The affidavit of the attorney should be quite clear on this subject and should satisfy the lower tribunal and this court that only persons without funds from any source are those receiving the benefit under the statute; which benefit, of course, is a detriment to the rest of the public who must carry the additional load. I suggest specific findings should be made by the lower tribunal concerning this aspect of the indigency of the appellant.
NOTES
[1] Lee v. City of Winter Haven, 386 So.2d 268 (Fla. 2d DCA 1980); Latsi v. Florida Parole & Probation Commission, 382 So.2d 1355 (Fla. 1st DCA 1980); Hillman v. Federal National Mortgage Association, 375 So.2d 336 (Fla. 4th DCA 1979).
[2] Thayer v. State, 335 So.2d 815 (Fla. 1976).
[3] Capella v. City of Gainesville, 377 So.2d 658 (Fla. 1979).
[4] One of the problems in trying to follow Chapter 80-348 is illustrated in this case. The certificate is signed by an attorney on the staff of the administrative agency as "the clerk." Many agencies, unlike the courts, do not have a "clerk."
[5] Art. V, § 2(a), Fla. Const.; In Re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla. 1972); Market v. Johnston, 367 So.2d 1003 (Fla. 1979).
[6] Nichols v. Florida Parole & Probation Commission, 393 So.2d 13 (Fla. 1st DCA 1980).
[7] We do not reach in this case the question of procedure in "original" jurisdiction matters. Fla.R.App.P. 9.030(b)(3). Therefore, this opinion is not in conflict with Nichols v. Florida Parole & Probation Commission, 393 So.2d 13 (Fla. 1st DCA 1980). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922247/ | 258 Minn. 300 (1960)
104 N.W. (2d) 36
LARRY A. SAYLOR
v.
JOHN SASS AND ANOTHER.
No. 37,820.
Supreme Court of Minnesota.
June 24, 1960.
*301 Friedman & Friedman, for appellant.
Dancer, Montague, Applequist, Lyons, Nolan & Nordine, for respondents.
FRANK T. GALLAGHER, JUSTICE.
Appeal from the order of the district court.
The record indicates that on January 29, 1944, plaintiff, Larry A. Saylor, then 7 years of age, sustained a fracture of his right leg in a sliding accident in which he was struck by a truck owned by defendant John Sass and driven by defendant Harvey Beck.
In April 1944 plaintiff's father, Roger D. Saylor, negotiated a settlement with the attorney representing defendant Sass, and thereafter he petitioned the municipal court of Duluth for his appointment as guardian ad litem for plaintiff, stating in his petition:
"That he is a resident of the City of Duluth, County of St. Louis, State of Minnesota; that he is the father of Larry A. Saylor, an infant seven years of age; that the said Larry A. Saylor received certain personal injuries while sliding on a sled on Wellington Street in the City of Duluth and colliding with the truck of John Sass, then and there being driven by one Harvey Beck, resulting in a fracture of the upper, right leg; that your petitioner desires to compromise and settle the claim for said injuries; that your petitioner has agreed upon a settlement with the said John Sass in the sum of One Thousand and no/100ths ($1000.00) Dollars in full settlement of all claims on account of said injuries, but cannot effect a settlement with the said John Sass until your petitioner has been appointed guardian ad litem."
On April 19, 1944, the municipal court filed its order appointing Roger D. Saylor as guardian ad litem of his son and authorized him to *302 effect a settlement with Sass in the sum of $1,000 on account of Larry's injuries.[1] The order further provided that the money should be deposited in a Duluth bank and the bankbook deposited with the clerk of municipal court, with all withdrawals being subject to the approval of said court.
Thereafter, the $1,000 was deposited in the Western National Bank in settlement of Larry's claim. In addition the sum of $361.10 was paid in settlement of Roger's claim for medical and hospital expenses and loss of services.
On April 16, 1958, about 14 years later, plaintiff moved the municipal court to vacate the order filed in April 1944. The municipal court denied the motion and plaintiff appealed to the district court from the order.
In a memorandum in connection with its order the municipal court explained that it had jurisdiction of the amount involved in the settlement; that it had been appointing guardians ad litem and approving minors' settlements for many years; that since there was no affirmative showing that the judge who approved the settlement was not fully informed as to the character and extent of plaintiff's injuries, it must be presumed that such court was fully informed. The memorandum also stated that there was no showing of a mistake as to the nature and character of plaintiff's injuries; that the showing now made was no different from that when the settlement was made, except a hernia of the muscles, and as to that, there was no showing as to when the hernia developed. It was the court's position that it could have existed at the time the settlement was made or it could have developed at any time during the intervening 14 years in so far as any showing in that court was concerned; also that the rheumatic fever did not result from the injury.
The appeal to the district court was heard by three judges of that *303 court sitting together as an appellate court in Duluth.[2] That court affirmed the municipal court.
Plaintiff in his appeal here questions whether the Municipal Court of Duluth in 1944 had jurisdiction over a matter involving the appointment of a guardian ad litem for the purpose of settling an injury to a minor, and if so, whether defendant complied with the requirements of such settlement. The municipal court ruled in the affirmative. Plaintiff also raises the issues as to whether he is entitled to a vacation of the settlement on the grounds of mistake, misrepresentation, or fraud and in the interest of justice and as to whether the settlement was voidable because one attorney acted in behalf of both parties. The municipal court ruled in the negative.
1-2. In a memorandum made a part of its order, the district court said in part:
"It is the opinion of this Court that the Municipal Court of the City of Duluth had jurisdiction to make the Order filed on April 19, 1944. The statutes in effect at that time gave the Municipal Court jurisdiction over an action for damages for an injury to the person if the damages claimed did not exceed one thousand dollars. Session Laws of Minnesota for 1923, Chapter 238. The limitations upon the Court's jurisdiction, set forth in said Chapter and in Section 488.07 M.S.A., did not exclude jurisdiction over actions by minors to recover for personal injuries. Chapter 238 further provided that the Court was `vested with all powers over cases within its jurisdiction which are possessed by district courts of this state over cases within their jurisdiction'. It is clear that since the Court had jurisdiction to `hear, try, and determine' such an action brought by a minor for damages within the monetary limitation, it had jurisdiction to approve the settlement of such an action.
"The record shows that plaintiff's claim was settled for the sum of one thousand dollars, and the settlement was therefore within the jurisdictional limit of the Municipal Court. Plaintiff's claim was separate from and was not enlarged by the settlement of his father's individual claim for medical and hospital expenses and loss of services.
* * * * *
*304 "The record does not support plaintiff's contention that the settlement should be vacated because of mistake, misrepresentation or fraud, and in the interest of justice. The medical reports do not establish that separate and distinct injuries were sustained by plaintiff, which as a matter of mutual mistake, were not contemplated or considered in the settlement. See, Larson v. Stowe, 228 Minn. 216, 36 N.W.2d 601. The discretionary power of a court to set aside its prior approval of a minor's personal injury settlement should be exercised cautiously, and this Court cannot say that the Municipal Court erred or abused its discretionary power in refusing to vacate the settlement made herein fourteen years ago."
We agree with the foregoing conclusions of the district court.
3. Plaintiff, subsequent to oral argument on this appeal, referred us to Rule 1, Rules of Practice, Municipal Court of City of Duluth, 27 M.S.A. (1947) p. 735, in effect at the time the settlement was approved by the municipal court. That rule incorporated by reference District Court Rule 3 (Minn. St. 1941, p. 3982), which provides in part as follows:
"ACTION ON BEHALF OF MINORS; SETTLEMENT.
"(a) In making application for the approval of a settlement of any action brought on behalf of a minor child, the parent or guardian ad litem shall present to the court:
"(1) A verified petition, stating the age of the minor, the nature of the action, if for personal injuries to what extent the minor has recovered therefrom, the reasons justifying the proposed settlement, the expenses which it is proposed to pay out of the amount to be received, the nature and extent of the services rendered by the attorney representing the minor, whether or not an action has been commenced on behalf of the parent or guardian, and, if so, what settlement, if any, has been made in that action, with itemized expenses incurred on behalf of the minor;
"(2) Satisfactory evidence that the settlement is for the best interest of the minor;
"(3) If the action be for personal injuries, an affidavit of the attending physician showing the nature, extent, and probable duration *305 of the injuries caused by the accident, and the extent of the recovery which has been made therefrom at the time of the presentation of the application.
"The minor shall appear before the court at the time the application is made, and no order approving any settlement shall be made where the action is one for personal injuries until the court has seen and had an opportunity to examine the minor."
It does not appear from the record here that all of the requirements imposed by Rule 3 were satisfied previous to the municipal court order filed April 19, 1944, approving plaintiff's settlement. Plaintiff contends that on this basis court approval of plaintiff's settlement should be vacated. Under the circumstances here, we cannot agree. We believe that rules of court may be waived by the party benefited by the rule either expressly or by his conduct. Day v. Board of Regents, 44 Ariz. 277, 36 P. (2d) 262. See, Martin v. Wolfson, 218 Minn. 557, 16 N.W. (2d) 884; 20 Dunnell, Dig. (3 ed.) § 10135.
Under the circumstances and record here, where no objections were made, we believe that any rights under the rule have been waived.
Affirmed.
MR. JUSTICE LOEVINGER, not having been a member of the court at the time of the argument and submission, took no part in the consideration or decision of this case.
NOTES
[1] M.S.A. 540.08 requires that in actions for the injury of a minor child no settlement or compromise shall be valid unless approved by the judge of the court in which such action is pending. At the time of the settlement the requirement was also binding on the municipal court pursuant to Minn. St. 1941, § 488.16, repealed by L. 1959, c. 660, § 22.
[2] See, 27 M.S.A. c. 488, Appendix 5, § 47, subd. 4. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600600/ | 1 So. 3d 502 (2009)
STATE of Louisiana
v.
Arthur CALVIN.
No. 2009-KK-0125.
Supreme Court of Louisiana.
February 20, 2009.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600738/ | 1 So. 3d 761 (2008)
Jason Aaron PICOU
v.
Antigona Vela PICOU.
No. 2008-CA-0688.
Court of Appeal of Louisiana, Fourth Circuit.
December 17, 2008.
David M. Hufft, Pivach, Pivach, Hufft Thriffiley & Nolan, L.L.C., Belle Chase, LA, for Plaintiff/Appellee, for Jason Aaron Picou.
Robert T. Garrity, Jr., Harahan, LA, for Defendant/Appellant, for Antigona Vela Picou.
*762 Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR. and Judge PAUL A. BONIN.
JOAN BERNARD ARMSTRONG, Chief Judge.
Jason Aaron Picou and Antigona Vela Picou were married on February 12, 1999, and, of their marriage, two children were born. ANP[1] was born on February 12, 1998, and AAP was born on March 20, 2000. On July 18, 2002, Mr. Picou filed a Petition for Divorce, which included a request for determination of custody of the two minor children. The trial court granted a Judgment of Divorce in March of 2003.
The parents entered into two stipulated consent judgments. The first, rendered and signed on November 22, 2002, provided for joint equal physical custody, subject to physical custody arrangements to be worked out between the parties, with the exchange of the children to be at a reasonable time in the evening. At that time, the mother worked at night as a waitress, and the father worked an evening shift as a Jefferson Parish Sheriff's Deputy. The second stipulated consent judgment, signed by all parties and their counsel and submitted to the trial court on June 14, 2005, provided again for joint equal physical custody, consisting of alternative seven day periods beginning from 4 p.m. on Saturdays through 4 p.m. on the following Saturday. The judgment provided that the exchange point would be the parking lot of the Belle Chasse lockup.
On November 29, 2005, the mother filed a Rule for Modification of Visitation that was tried on February 5, 2007.[2] Following a non-jury hearing, at the close of the mother's case, the trial court granted the father's motion for involuntary dismissal pursuant to the provisions of La.C.Civ. Proc. art. 1672(b), which provides in relevant part:
In an action tried by the court without a jury, after the plaintiff has completed the presentation of [her] evidence, any party, ..., may move for a dismissal of the action as to him on the ground that upon facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all evidence.
The mother appeals from that judgment. For the reasons that follow, we affirm the judgment of the trial court.
A motion for involuntary dismissal under La.C.Civ.Proc. art. 1672(b) should be granted only if the plaintiff fails to prove his or her case by a preponderance of the evidence. Kelly v. Housing Authority of New Orleans, 02-0624, p. 5 (La.App. 4 Cir. 8/14/02), 826 So. 2d 571, 574. All evidence, both direct and circumstantial, taken as a whole must show that the causation or fact sought to be proved is more probable than not. The judge must weigh and evaluate all the evidence presented to that point in the trial and determine whether the plaintiff established a prima facie case by a preponderance of the evidence. Unlike the motion for directed verdict in a jury trial, the trial judge reviews the evidence without any special inference favorable to the party opposed to the motion. In reviewing the trial court's judgment granting an involuntary dismissal, we apply the *763 manifest error standard of review. Morgan v. City of New Orleans, 94-0874 (La. App. 4 Cir. 12/15/94), 647 So. 2d 1308. The manifest error standard provides that where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Trans. & Development, 617 So. 2d 880, 883 (La.1993). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was reasonable. Id. at 882. The reviewing court may not disturb the reasonable evaluations of credibility and reasonable inferences of fact when viewed in light of the record in its entirety, even should it believe its evaluations are more reasonable. Id. See also, Ridgeway v. Pierre, 06-0521 (La.App. 4 Cir. 1/11/07), 950 So. 2d 884.
Furthermore, this standard is to be applied in reviewing judgments affecting child custody. Leard v. Schenker, 05-1125 (La.App. 4 Cir. 3/22/06), 930 So. 2d 75, 85, rev'd in part on other grounds, 06-1116 (La.6/16/06), 931 So. 2d 355; citing Revision Comments1993 to La.Civ.Code. art. 134, Comment (b); Bergeron v. Bergeron, 492 So. 2d 1193 (La.1986); and AEB v. JBE, 99-2668, p. 7 (La.11/30/99), 752 So. 2d 756, 761. When a party seeks a change in the custody arrangement provided in a stipulated consent judgment, that party has the burden of providing (1) that there has been a material change of circumstances since the entry of the original decree, and (2) that the proposed modification is in the best interest of the children. Evans v. Lungrin, 97-0541, 97-0577, p. 13 (La.2/6/98), 708 So. 2d 731, 738; Ordoyne v. Ordoyne, 07-235, p. 5 (La.App. 4 Cir. 4/2/08), 982 So. 2d 899, 902.
In granting the father's motion, the trial court noted:
I have not seen any evidence that shows there's been some type of material change since the judgment was stipulated to. There's been no testimony of any type of remarriage, or divorce, or relocation or abuse, or of step-children problems or school problems, other than what was already in existence at the time of the consent.
The mother argues that the "material change of circumstances" consists in the father's allegedly having relinquished "much of his custodial duties" to his parents because of his work schedule. The evidence of record does not support this allegation. The mother admitted on cross-examination that in April of 2005, when she participated in the preparation of the consent judgment, she knew that the father was working nights as a Jefferson Parish Deputy Sheriff. She also admitted that she knew at the time the 2005 consent judgment was confected that the paternal grandparents were helping with the children when the father needed them. There is no evidence of record that this grandparental assistance was not in place at the time the parties entered into the 2005 consent judgment.
The record reflects that the father takes the children to dental appointments and attends parent/teacher conferences at their school. He was involved personally with both the school and the Ochsner Clinic concerning evaluation of the special educational needs of one of the children and paid for her tutoring. He attended all of the school meetings during this daughter's educational evaluation, although the mother missed several of the meetings. The record shows that the father takes his daughter to dance lessons, and takes the girls to the library, to the Children's Museum in New Orleans, and to Disney World. He also demonstrated on the record his cooperation with the mother in *764 modifying the agreed-to schedule when the mother scheduled an activity with their daughters, including allowing the children to visit their maternal grandparents in Croatia for up to two months at a time during the summer. The mother admitted on cross-examination that her daughters were doing well in school, although she expressed her belief that the child with special educational needs could not yet read or write. That belief was not supported by objective evidence or expert opinion.
Our review of the record in its entirety discerns ample evidence from which the trial court reasonably could conclude that the mother did not prove, by a preponderance of the evidence, the material change in circumstances she alleged.
Significantly, the mother did not offer and introduce any expert testimony tending to prove that the joint equal custody arrangement is not in the best interests of the couple's two daughters. The parents agreed in 2002 and 2005 that equal, joint custody of their daughters would be in the best interests of the minors. This arrangement also finds favor in La. R.S. 9:335(A)(2)(b), which provides that to the extent feasible and in the best interest of the child, physical custody of minor children should be shared equally.
For the foregoing reasons, we find that the trial court was not manifestly erroneous or clearly wrong in having found that the mother did not prove, by a preponderance of the evidence, a material change in circumstances that would support a modification of the joint equal custody arrangement memorialized in the parents' two consent judgments. Nor was there a showing by a preponderance of the evidence that the best interests of the children was not served by the ongoing joint and equal custody arrangement. Therefore, we affirm the judgment of the trial court granting an involuntary dismissal of the appellant's Rule for Modification of Visitation.
AFFIRMED.
NOTES
[1] The children's initials are used herein in order to protect their privacy.
[2] The father filed two contempt rules, alleging that the mother had violated the terms of the two consent judgments. Those issues are not before the Court in this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600754/ | 391 So. 2d 313 (1980)
George JONES, D/B/a George Jones Masonry & Asphalt, Appellant,
v.
Bill WRIGHT, a/k/a William J. Wright, III, and Leonard Stein, Appellees.
No. 80-555.
District Court of Appeal of Florida, Second District.
December 10, 1980.
Larry G. Rightmyer, St. Petersburg, for appellant.
Thomas K. Riden of Riden, Crawford & Janssen, St. Petersburg, for appellee Wright.
Adrian S. Bacon of Bacon & Bacon, St. Petersburg, for appellee Stein.
SCHEB, Chief Judge.
This appeal involves a contractor's foreclosure of a claim of lien against a lessor's property for improvements he constructed pursuant to an agreement with a long-term lessee of the property.
Bill Wright contracted with George Jones to construct improvements on real property which Leonard Stein owned and leased to Wright under terms of a fifty-year agreement. Subsequently, Jones filed a claim of lien alleging that Wright had not fully paid *314 him under the contract. In June 1979 Jones filed this suit. In Count I of the complaint, Jones sought to foreclose his claim of lien against both Wright and Stein. In Count II Jones sought a money judgment against Wright alleging breach of contract.
The trial court granted Wright's motion to dismiss on Count I and Stein's motion for summary judgment on Count I. It denied Wright's motion to dismiss Count II. This appeal by Jones ensued.
The order granting Wright's motion to dismiss Count I is not an appealable nonfinal order under Florida Rule of Appellate Procedure 9.130. In addition, since Jones still has a cause of action against Wright under Count II, the order granting the motion to dismiss Count I is not a final appealable order. Although Jones seeks to obtain different forms of relief in the two counts, he is seeking the same end result, namely, payment under the contract. In McClain Construction Corp. v. Roberts, 351 So. 2d 399 (Fla.2d DCA 1977), we held that an order dismissing a count of a complaint seeking to foreclose a mechanic's lien was not appealable while other counts involving the same set of facts and seeking an equitable lien and a recovery for breach of oral contract were pending. As the same basic facts are pertinent to each count in the present case, McClain controls, and, consequently, we must dismiss Jones' appeal from the order dismissing Count I as to Wright.
We think, however, that the trial court's grant of summary judgment to Stein was proper. The court had before it the lease agreement between Stein, as lessor, and Wright, as lessee, which provided in Paragraph 16 that Wright could construct any improvements on the leasehold including a farmer's market building or buildings and related areas. It also provided that Wright could not do anything which would permit a lien or claim of lien on the leasehold. The lease was recorded in the county where Jones constructed the improvements prior to his furnishing any labor or materials.
Section 713.10, Florida Statutes (1979), provides:
In the absence of fraud on the part of the lessor, the interest of the lessor shall not be subject to liens for improvements made by the lessee when the lease is recorded in the clerk's office and the terms of the lease expressly prohibit such liability.
Jones recognizes section 713.10 but argues that two other lease provisions negate its applicability here. Paragraph 5 provided that the lease was not binding on Wright unless the proper regulatory authority authorized him to build a farmer's market. If approval was not given, either party could cancel the lease. Paragraph 11 required Wright to pay all taxes and assessments on the leasehold and on any improvements he constructed. Jones, citing Robb v. Lott Paving Co., 289 So. 2d 776 (Fla. 4th DCA 1974), and Jenkins v. Graham, 237 So. 2d 330 (Fla. 4th DCA 1970), argues that the language of Paragraphs 5 and 11 made the construction of improvements the "pith of the lease" and thereby subjected the leased property to a claim of lien. We do not agree.
Paragraph 16 is clear in prohibiting the imposition of a lien against Stein's property. The provisions concerning a farmer's market simply gave Wright the option of constructing improvements on the leasehold. They did not make that construction the "pith of the lease" under Robb and Jenkins. Consequently, since there was no suggestion of fraud and the lease was recorded, section 713.10 controls. Therefore, Stein's interest in the property was not subject to lien.
Accordingly, we dismiss Jones' appeal from the order granting Wright's motion to dismiss Count I; we affirm the summary judgment in favor of Stein on Count I.
GRIMES and CAMPBELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600760/ | 391 So. 2d 1364 (1980)
STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
v.
John W. FRABBIELE et ux.
No. 11352.
Court of Appeal of Louisiana, Fourth Circuit.
December 9, 1980.
William W. Irwin, Jr., Johnie E. Branch, Jr., and Robert L. Ledoux by Bryan Miller, Asst. Gen. Counsel, Baton Rouge, for plaintiff-appellant.
Harold E. Kytle, Kenner, for defendant-appellee.
Before BOUTALL, SCHOTT and CHEHARDY, JJ.
SCHOTT, Judge.
This case was previously before this court on appeal by the State of Louisiana through Department of Highways from a judgment which awarded defendant land owner the sum of $303,634 as an increase in the value of his property plus severance damages over and above the sum which the Department had deposited in the registry of the court. The judgment had also awarded attorney fees in the amount of $75,908, being 25% of the amount of the increase. See State, through Dept. of Hwys. v. Frabbiele, 372 So. 2d 234 (La.App. 4th Cir. 1979). We remanded the case to the trial court because the original record did not contain evidence in support of the amount of attorney fees *1365 awarded by the court. Following trial on the remand the trial court awarded attorney fees in the amount of $75,908, and from that judgment the Department (now referred to as Department of Transportation and Development) has appealed.
The Department has raised two issues on the appeal. First, it contends that the district court exceeded its authority in deciding the amount of the fee since the remand was limited to its taking of evidence relating to the proper amount of the attorney fees. Second, the Department contends that the amount of the fee awarded is excessive.
In the earlier appeal, we were concerned with the trial court's compliance with LSA R.S. 48:453 which provides as follows:
"E. Reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney fees in no event shall exceed 25% of the difference between the award and the amount deposited in the registry of the court."
According to this statute the trial court was vested with discretion in awarding reasonable attorney fees which could not exceed the amount which he awarded since that amount was 25% of the difference between the award and the amount deposited in the registry of the court. In our decree we annulled that part of the judgment awarding the attorney fees and ordered a remand to the trial court "solely and entirely for the purpose of permitting testimony to be offered in connection with the amount of attorney's fees to be assessed."
The Department takes the position that the trial court's function under our order of remand was in the nature of a hearing examiner who would collect evidence and simply transmit that evidence to this court for an adjudication with respect to the amount of the fee. However, this overlooks the basic distinction between the functions of the trial court and the appellate court in our system of justice. The trial court is in a position to see and hear the witnesses who testify and to evaluate their credibility and assign the proper weight to their testimony. The function of the appellate court is to determine whether the trial court has committed error in the exercise of its functions. The statute in question provides that reasonable attorney fees may be awarded by the court which implies that the trial court is vested with discretion in the matter and the function of the appellate court would be to determine if the trial court has abused that discretion. Thus, we conclude that the procedure employed by the trial court in this case was proper and he did not exceed his authority in arriving at an adjudication of the amount of attorney fees to be awarded in this case based on the evidence presented to him.
As to the amount of attorney fees awarded in this case, the trial court in his reasons for judgment referred to Guillory v. Guillory, 339 So. 2d 529 (La.App. 4th Cir. 1976). Copy of his reasons for judgment is made an appendix to this opinion. The trial judge considered each of the criteria announced in the Guillory case, applying those criteria to the instant case and concluded that the maximum amount allowed by the statute was the appropriate one in this case. The record supports this conclusion and the amount of the award was within the discretion given the trial court by the statute.
Accordingly, the judgment appealed from is affirmed.
AFFIRMED.
APPENDIX
TWENTY FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON STATE OF LOUISIANA
NO. 197-338 DIVISION: "C"
STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT
VS.
JOHN W. FRABBIELE, ET UX
REASONS FOR JUDGMENT
The Highway Department in its opposition to the amount awarded cited Guillory v. Guillory, 339 So. 2d 529, being a Fourth *1366 Circuit Court of Appeal case. On page 531 of the Guillory decision, Judge Samuels said, "While we agree that the number of hours spent by an attorney is a factor to be considered, this alone does not determine the fee. The factors most often considered in the determination of the fee to be awarded an attorney on the basis of quantum meruit are: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount involved; and, (5) the extent and character of the labor performed; (6) the legal knowledge and attainment and skill of the attorney, the number of appearances made, the intricacies of the fact and law involved, the diligence and skill of counsel and the court's own knowledge relative to what has occurred in the case by virtue of the fact that the matter is handled before him and hears the testimony firsthand, handles all the pretrials, et cetera which gives him an insight as to what is going on and (11) the ability of the party to pay."
The award in this case was some $303,000.00 over the amount which the Highway Department had originally deposited in connection with the quick taking statute, Title 48:441 et seq. The court notes that in connection with this matter that when we talk about the guidelines set out by the Guillory case that certainly the ultimate result obtained in connection with this matter was certainly a quality performance by counsel for the landowner and in connection with the responsibility incurred certainly when we look at these matters this was a matter of tremendous importance to the landowner whose property had been taken in light of the testimony that he has given today to the effect that all of his life efforts of he and his wife were in this property. Further that the State has previously expropriated a piece of property sometime before for $160,000.00 and that when he went to buy the property back it cost him some $715,000.00.
Accordingly, there was a great responsibility on counsel for the landowner in connection with a man who has a piece of property which represents his total life's efforts and represents what this man has worked for and which in the ordinary course of things he would have but for the expropriation suit to look forward to in the remaining years of his life and his wife's life. Certainly from the facts of this case this was indicative of the amount that was involved. There is no question in the court's mind that Mr. Kytle is a skilled attorney. The record indicates that in previous years he was attorney for the City of Kenner and then served as attorney for the Parish of Jefferson where certainly in both instances he had supervision in connection with expropriation done by the City of Kenner and certainly had supervision in connection with his duties as Parish Attorney in connection with expropriations by the Parish of Jefferson.
In connection with the appearances made this is part of the total picture. The actual trial of this matter after a short pre-trial and a short lunch period lasted until 9:00 P.M. at night and of course, the court is interested in connection with that portion of the actual trial as to the quality of the work performed. There is no question that counsel had to have his own experts in this matter. The matter was an intricate portion of the case relative to the damages and there is no question that counsel had to be familiar with the actual property involved and had to be skilled in the law that applied to this case.
The court finds that counsel was diligent and was skilled.
In connection with this matter the court rendered a judgment of $75,908.00 for attorney's fees after having heard all of the testimony involved in this matter the court feels that the testimony in this case solidifies the court's original opinion and the court finds that in connection with the attorney's fees sought in this matter that there should be judgment in favor of the landowner in the amount of $75,908.00.
This court was aware of the Guillory case and the factors cited in that case to be used as a guide in establishing a reasonable fee. It is these factors that this court considered in first arriving at the fee awarded.
*1367 On remand, Mr. Martin Kelly, Mr. Cecil Burglass and Mr. Wesley Wambsgans each testified that they examined Mr. Kytle's voluminous file and the court record. Each of these three attorneys testified that they were experienced in establishing attorney's fees and each had practiced law for twenty years or more. Each attorney felt the twenty-five per cent awarded in this case was reasonable. Mr. Burglass especially convinced the court the award was reasonable and in line with cases handled in this district by local attorneys. Mr. Kytle himself testified under cross examination that he worked well over 200 hours on this case. He told of the numerous hours spent in preparation and research. Mr. Frabbiele testified he had a contingency fee contract with Mr. Kytle that called for 25% of the amount awarded in excess of the amount deposited by the Highway Department in the registry of the court. The testimony of these attorneys solidifies the court's original opinion.
The Highway Department in its memorandum of opposition filed in the Court of Appeals questioned the award because the amount was large. The court notes that had the Highway Department deposited a more reasonable amount, the attorney fees would have been much less. In fact, as in all contingency fee contracts, counsel for the landowner could have received no fee at all.
In summary, the court affirms the original award of $75,908.00. The court considers the amount reasonable. All facts were uncontroverted by the State.
GRETNA, LOUISIANA, This 27 Day of November, 1979.
/s/ Nestor L. Currault
JUDGE | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600775/ | 257 F. Supp. 74 (1966)
BANK OF HAW RIVER, Plaintiff,
v.
James J. SAXON, Comptroller of the Currency of the United States, Defendant, and
First National Bank of Eastern North Carolina, Intervener.
No. C-124-G-65.
United States District Court M. D. North Carolina, Greensboro Division.
August 18, 1966.
*75 Jordan, Morris & Hoke, Raleigh, N. C., for plaintiff.
William H. Murdock, U. S. Atty., for Middle Dist. of North Carolina, and Richard S. Beatty, Atty., Dept. of Justice, Washington, D. C., for defendant.
Carl V. Venters, Jacksonville, N. C., and Ross, Wood & Dodge, Graham, N. C., for intervener.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND OPINION
EDWIN M. STANLEY, Chief Judge.
The plaintiff, Bank of Haw River, instituted this action on July 14, 1965, seeking a preliminary and permanent injunction against the defendant, James J. Saxon, Comptroller of the Currency of the United States, from issuing a certificate authorizing the First National Bank of Eastern North Carolina to establish and operate a branch in Graham, Alamance County, North Carolina. First National Bank of Eastern North Carolina was allowed to intervene and file answer.
The case was tried to the Court without a jury on April 25 and 26, 1966. At the conclusion of the trial, the parties were given specified times within which to file requests for findings of fact and conclusions of law and briefs.
After giving due consideration to the evidence offered by the parties, including exhibits, requests and briefs filed, and argument of counsel, the Court makes and files herein its Findings of Fact and Conclusions of Law, separately stated:
1. The plaintiff, Bank of Haw River, is a State bank organized and existing under the laws of the State of North *76 Carolina, with its principal office in Haw River, an unincorporated community in Alamance County, North Carolina. In addition to its principal office, plaintiff operates a branch in what is known as the Cum-Park Plaza Shopping Center in the City of Burlington, Alamance County, North Carolina, and a branch in Glen Raven, adjacent to the City of Burlington.
2. The defendant, James J. Saxon, is the Comptroller of the Currency of the United States.
3. The intervener, First National Bank of Eastern North Carolina, hereinafter referred to as "First National," is a national banking association organized and existing under the laws of the United States, with its principal office in New River Shopping Center, Jacksonville, Onslow County, North Carolina. In addition to its principal office, it operates seventeen branches throughout eastern North Carolina, one branch in the Town of Boone, Watauga County, in western North Carolina, and a depository facility on the United States Marine Corps Base Air Facility, New River, North Carolina.
4. The Bank of Haw River was organized in 1911 with a capital of $10,000.00. On April 5, 1966, the bank had a capital of $600,000.00, deposits of $4,500,000.00, loans of $3,075,000.00 and total resources of $5,375,000.00.
5. First National was organized in 1952 with a capital of $10,000.00, surplus of $25,000.00, and undivided profits of $25,000.00. At the end of 1965, the bank had a capital of $1,900,000.00, deposits of $35,311,362.00, and loans of $23,203,519.00.
6. On June 17, 1965, First National made application to the Comptroller for permission to operate a branch bank in the City of Graham, North Carolina. Graham is approximately 165 miles from the home office of First National.
7. On July 7, 1965, the Bank of Haw River filed with the Comptroller a request that it be furnished with certain information with respect to the application of First National, and that it be heard in opposition to the application. It further requested that a record be made of the hearing and that the decision on the application contain findings of fact and conclusions of law.
8. On July 14, 1965, this action was filed seeking to preliminarily and permanently enjoin the Comptroller from issuing a certificate authorizing First National to establish and operate a branch in Graham. Accompanying the complaint was a motion for preliminary injunction.
9. On July 16, 1965, an order was entered allowing the First National to intervene and file answer.
10. On August 26, 1965, the parties filed with the Court a stipulation that the Comptroller would notify the plaintiff of his intention to issue a certificate authorizing First National to establish and operate a branch in Graham, if he decided to issue such certificate, and that the Comptroller would not issue such certificate until the Court had heard the pending motion for a preliminary injunction.
11. On October 14, 1965, the parties stipulated that all further proceedings in this action be stayed pending a decision by the Court of Appeals for the Fourth Circuit in the case of First National Bank of Smithfield, North Carolina v. Saxon.
12. On January 21, 1966, plaintiff applied to the Court for a hearing on its motion for preliminary injunction, stating that the Comptroller had, on January 19, 1966, given notice of his intention to issue a certificate authorizing First National to establish and operate a branch in Graham.
13. On February 18, 1966, First National filed a motion to dismiss or, in the alternative, for summary judgment. A similar motion was filed by the Comptroller on February 21, 1966.
14. On March 17, 1966, following a hearing, orders were entered (1) restraining the Comptroller, pending a de novo hearing, from issuing a certificate evidencing his approval of First National to establish and operate a branch in Graham, (2) granting the plaintiff a de *77 novo hearing on the application of First National to establish a branch bank in Graham, and (3) denying the motions of the Comptroller and First National to dismiss or, in the alternative, for summary judgment.
15. Pursuant to the request of the plaintiff that the Comptroller hold a hearing on the application of First National, the Comptroller wrote counsel for plaintiff on September 30, 1965, advising that the hearing would be held on October 11, 1965, in the Main Treasury Building, Washington, D.C.
16. At the opening of the hearing, the Comptroller announced that no witness would be subject to cross examination without the consent of the witness and that no witness would be sworn, and First National announced that it would offer no evidence in support of its application. Plaintiff then presented six witnesses and a number of exhibits, all to the effect that there was no public interest, need or necessity for additional bank facilities in Graham. This is the only hearing of any type ever conducted in connection with the application.
17. On January 13, 1966, the Comptroller wrote First National a letter advising that its application to establish a branch at Graham had been approved. The letter did not recite any facts whatever justifying the action of the Comptroller.
18. On February 21, 1966, the Comptroller following his approval of the application of First National, filed with the Court a certified copy of his administrative file. The file contains nothing more than the application of First National to establish a branch at Graham, supplemental information furnished by First National, a protest filed by the National Bank of Alamance, a commercial bank in Graham, the report of an investigation conducted by the Comptroller, supplemental information developed by the Comptroller, and documents furnished by the plaintiff in connection with its protest. The report of the investigation conducted by the Comptroller contains little information, if any, bearing on the question before him. Among other things, the report observed that First National had been establishing branches quite rapidly in view of its size and earnings, but that its branches were believed to be on a profitable basis, except for the branch most recently opened. It was further observed that the information submitted by First National appeared to be reasonably accurate since it was generally taken from brochures of the Burlington-Alamance County Chamber of Commerce. The examiner was unable to obtain a satisfactory explanation as to why there had been a substantial decrease in retail and wholesale trade in the Graham area between 1958 and 1963. It was estimated that First National would earn a profit of $10,000.00 during its first year of operation, and that this would increase to $50,000.00 during the third year. One of the unfavorable factors found was the disadvantage of First National operating a branch office a distance of 165 miles from its home office, together with such problems as might be presented by local competition. The summary and recommendations of the investigator were deleted or blocked out before the file was transmitted to the Court, and is thus not available. The supplemental information developed by the Comptroller, which contains the recommendations of his field investigators, both favorable and unfavorable, with reasons for the recommendations, was also deleted or blocked out before the administrative file was furnished to the Court.
19. At the trial on April 25 and 26, 1966, the parties offered numerous witnesses and documents in support of their respective positions. Some of the witnesses and documents indicated the need for additional banking facilities in Graham, while others indicated no public interest, need, necessity or interest would be served by the establishment of another bank in the Graham area.
20. The City of Graham is the county seat of Alamance County. Its northern and western corporate boundary lines are contiguous to the southern and eastern corporate boundary lines of the City of *78 Burlington. The population of Graham in 1950 was 5,020, and the population in 1960 was 7,723. The population of Burlington in 1950 was 24,560, and its population in 1960 was 33,199. The population of Alamance County in 1960 was 85,674, an increase of 14,454 over its 1950 population of 71,190. There is only one commercial bank, namely, the National Bank of Alamance, within the corporate limits of the City of Graham. This bank, however, has a drive-in branch at another location in Graham. Deposits in the National Bank of Alamance as of December 31, 1964, amounted to $9,305,000.00, and as of December 31, 1965, the deposits amounted to $10,289,000.00.
21. Other than the National Bank of Alamance and its drive-in branch, the only financial institutions in the City of Graham are the Graham Savings and Loan Association, with total resources as of December 31, 1964, of $10,400,000.00, and Graham Production Credit Association, a Federal farm loan institution. There are also small loan finance companies.
22. Located in the City of Burlington, in addition to plaintiff's Cum-Park Plaza Shopping Center Branch, are four commercial banks, namely, Wachovia Bank and Trust Company, North Carolina National Bank, Morris Plan Bank, and Northwestern Bank. Wachovia Bank and Trust Company has three branches, and North Carolina National Bank has two branches. Wachovia Bank and Trust Company and North Carolina National Bank are two of the largest banking institutions in the State. All the banks in Burlington are located less than three miles from the proposed location of First National's proposed branch in Graham.
23. For all purposes pertinent, Graham and Burlington constitute one working and trading area. Only an invisible corporate boundary line separates the two cities in the north and west. They have a joint chamber of commerce. The majority of the citizens of Graham work and trade in Burlington. Considering Burlington and Graham to be one working and trading area, the existing banking facilities for the area already greatly exceed the national average.
DISCUSSION
The plaintiff, a potential competitor of First National, clearly has an interest sufficient to challenge the procedures followed by the Comptroller in authorizing First National to establish a branch at Graham. The scope and extent of judicial review of the Comptroller's decision is dependent upon whether he conducted a hearing before making his decision. He was not required to make an evidential record or to make findings and conclusions, but if he acted in a unilateral manner, the plaintiff is entitled to a de novo hearing in this court without being held to the substantial-evidence rule or "an opening-presumption of correctness of any fact which it may appear to the Court was adopted by the Comptroller for his decision." First National Bank of Smithfield, North Carolina v. Saxon, 4 Cir., 352 F.2d 267, 272 (1965).
There can be no question but that investigation conducted by the Comptroller was wholly unilateral, except for the so-called hearing conducted in Washington, D.C., on October 11, 1965. Even at this hearing, neither the Comptroller nor First National offered any evidence, documentary or otherwise, in support of the application. Witnesses were told that they need not be sworn and were not subject to cross-examination. It is perfectly evident that the Comptroller was attempting to do nothing more than placate the plaintiff, and indeed the Court, by trying to make his action resemble some type of hearing. Never has the Comptroller revealed to the plaintiff or the Court the evidence before him at the time he made his decision, and he gives no plausible or rational reason as to why he deleted or blocked out important parts of his administrative file before certifying it to the Court.
The entire procedure followed by the Comptroller fell far short of affording the plaintiff a hearing. A hearing *79 means "that every party shall have the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Cf. 5 U.S.C. § 1006(c), 5 U.S.C.A. § 1006 (c). Such a hearing is essential for wise and just application of the authority of administrative boards and agencies." United States v. Storer Broadcasting Co., 351 U.S. 192, 202, 76 S. Ct. 763, 770, 100 L. Ed. 1081 (1956). "A requirement of a full hearing means one in which ample opportunity is afforded to all parties to make, by evidence and argument, a showing fairly adequate to establish the propriety or impropriety, from the standpoint of justice and law, of the steps asked to be taken. Under general requirements applicable to quasi-judicial proceedings, or under the requirement of a full hearing, a party has the right, and the hearing must afford him the opportunity, to defend the right involved, by argument, proof, and the cross-examination of witnesses, and the trier of the facts must reach his decision in accordance with the facts proved." 42 Am. Jur. Public Administrative Law, § 138. It is obvious that the hearing conducted by the Comptroller did not remotely meet these requirements.
Since the Comptroller denied the plaintiff a hearing, it is the duty of this Court to find the facts and "judge de novo the validity, in fact and in law, of the Comptroller's final action." First National Bank of Smithfield, North Carolina, v. Saxon, Supra. In making this determination, as earlier noted, the Court is not held to the substantial-evidence rule, and any fact found by the Comptroller is not entitled to an opening-presumption of correctness.
The evidence in this court went far beyond that which was before the Comptroller. While the testimony of the witnesses is in sharp conflict in certain respects, all the evidence clearly establishes that the Graham-Burlington community constitutes one service or trading area. The only expert of scientific evidence on the point was offered by the plaintiff in the testimony of Dr. Rollie Tillman, Professor of Marketing in the Graduate School of Business Administration, University of North Carolina at Chapel Hill. Dr. Tillman was found to be an expert in the field of marketing research. After describing his investigation, and stating the basis of his conclusions, Dr. Tillman defined the service area for the proposed branch bank to be the whole of the Graham-Burlington area. He pointed out that the political boundaries of the two municipalities can no longer be considered economic or trade area boundaries for the reason that the two municipalities have merged into one economic area and one market. Other evidence offered by the plaintiff tended to support and confirm Dr. Tillman's conclusions, and the defendant and intervener offered no evidence to the contrary. Additionally, the record establishes that from 60 to 90 per cent of the residents of Graham work in Burlington. This being true, it necessarily follows that the greater portion of the Graham residents do not even need the existing banking facilities in Graham. This is best illustrated by the fact that Wachovia Bank and Trust Company alone carries 1100 deposit accounts for Graham in its Burlington office, and Wachovia is only one of the five Burlington banks which serve the Graham-Burlington area. Also significant is the fact that both the Graham City Council and the Alamance County Commissioners defeated resolutions endorsing the application of First National to establish a branch in Graham.
The record further establishes that the Graham-Burlington service area is already considerably over-banked. Since the present ratio of existing banking offices to population is far in excess of both State and National averages, there can be no question but that the existing banks, with resources well in excess of two billion dollars, amply meet the capital needs of the Graham-Burlington area. Most of the witnesses offered by the defendant and First National *80 were unable to cite any significant need or necessity for the addition of another banking office in the community. Most of their testimony was based on civic pride and the notion that competition in every kind of business is good. The answer to this argument is that strong competition already exists among the various banks of the area.
And finally, the evidence fails to establish that it would be economically feasible to establish an additional bank in Graham at this time. The slow population growth of Graham, coupled with the large number of Graham citizens working and trading in Burlington, and the deposit trends of the National Bank of Alamance during the past thirteen years, tend to show it would not be in the public interest to establish another bank in Graham.
In summary, the record, considered, as a whole, clearly establishes that the service area of the proposed branch is the Graham-Burlington area; that existing banking institutions in this area provide a full range of all banking services of good quality; that no substantial public or business interest, need or necessity would be served by the establishment of the new bank; and that a new banking facility in the area would not be economically feasible. Further, based on the adminstrative file certified to this Court, there was nothing before the Comptroller showing a public interest, need or necessity for the establishment of another bank in Graham, and he abused and exceeded his discretion when he approved the application of First National.
CONCLUSIONS OF LAW
1. The Court has jurisdiction of the parties and the subject matter.
2. No public interest, need or necessity has been shown for the establishment of a branch of First National in Graham, North Carolina, and it is impermissible for the Comptroller to approve the establishment of such a branch.
3. The plaintiff is entitled to the injunctive relief sought. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600660/ | 173 N.W.2d 420 (1970)
DUNKLEY SURFACING CO., Inc., Respondent,
v.
GEORGE MADSEN CONSTRUCTION CO., Appellant.
No. 41630.
Supreme Court of Minnesota.
January 2, 1970.
*421 Karlins, Grossman, Karlins, Siegel & Brill and Allen C. Johnson, Minneapolis, for appellant.
Roger A. Johnson, Minneapolis, for respondent.
Heard before KNUTSON, C. J., and NELSON, SHERAN, PETERSON and FRANK T. GALLAGHER, JJ.
*422 OPINION
PETERSON, Justice.
Plaintiff, Dunkley Surfacing Company, Inc., a subcontractor, agreed to perform excavation and blacktopping at a stated price for defendant, George Madsen Construction Company, a general contractor, in the construction of a sales and automobile service center for Montgomery Ward & Company in Robbinsdale, Minnesota. A dispute arose between plaintiff and defendant during the course of work on the project, as the result of which plaintiff "walked off" the job without completing performance of the agreement. Plaintiff, claiming that defendant so breached the contract as to make complete performance impossible, sued on a quantum meruit theory for the value of its part performance. Defendant, claiming that it was plaintiff who breached the contract, counterclaimed for damages to cover the costs of completion. Upon trial to the court, judgment was ordered for plaintiff. Defendant moved for a new trial and appeals from the order denying its motion. We affirm.
The trial court found, as it could under the evidence, that defendant breached the agreement by unjustified interference with plaintiff's performance. Plaintiff had promptly commenced performance on September 9, 1965. Almost immediately, however, the weather became adverse: An abnormal amount of rain made it difficult on some days, impossible to clear and grade the large construction site. As a result plaintiff fell 2 or 3 weeks behind schedule. Defendant thought that plaintiff should bring in additional equipment and accelerate digging of the foundation of the building before the onset of cold weather. On October 13 defendant directed plaintiff to procure a backhoe for the digging of certain spread footings. Plaintiff did obtain a small backhoe, which arrived at the construction site at 10 a. m. on October 15. At 8 a. m., October 15, Gordon Madsen, defendant's president, observed that no backhoe was on the site, so he immediately rented a backhoe, together with an operator, from a mechanical contractor. He told Roger Dunkley, plaintiff's president, that plaintiff was to be backcharged for the cost of these new arrangements. Madsen at the same time stated to Dunkley that "[a]ny other equipment that I see fit or necessary I will put on the job and back-charge it if you don't have it here." Plaintiff protested that "we just can't operate under those conditions." Madsen replied, "If that is the way you feel about it, you will have to discontinue it and we will have to operate it in our own manner."
A general contractor who arrogates to itself control over a subcontractor's performance, directing the performance by means other than those contemplated by the subcontractor and backcharging the subcontractor for the cost of such means establishes an intolerable condition making it impossible for the subcontractor to perform according to its agreement. Such conduct is not a slight or casual breach, but a substantial and fundamental breach, for the objective of the parties in making the agreement is effectively defeated.
Where a contract is so materially breached or repudiated, the aggrieved party may consider the contract at an end and sue to recover the reasonable value of his partial performance. Stark v. Magnuson, 212 Minn. 167, 2 N.W.2d 814; 5 Corbin, Contracts, § 1109. Plaintiff, as the aggrieved party, was required to give defendant unequivocal notice that it no longer considered their agreement to be in effect. Such notice was given by plaintiff's declaration that it could no longer work under the conditions imposed by defendant and by its conduct in dramatically removing its work crew from the construction site. The fact of notice, moreover, was confirmed when defendant promptly secured a replacement for plaintiff.
Plaintiff's right to recover in quantum meruit is not defeated by defendant's showing that it incurred greater costs as a result of replacing plaintiff. It is neither the extent by which the defendant is enriched nor the cost to which plaintiff *423 has been put that is the measure of recovery. The measure, rather, is the reasonable value of plaintiff's performance, calculated by the sum for which similar services and materials could have been purchased from one in plaintiff's position at the time performance was rendered. See, Simpson, Contracts (2 ed.) § 203.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1499800/ | 174 F.2d 130 (1949)
Application of FINLEY.
Patent Appeal No. 5570.
United States Court of Customs and Patent Appeals.
April 12, 1949.
Pennie, Edmonds, Morton & Barrows, of New York City (Louis D. Forward, of New York City, Clarence M. Fisher, of *131 Washington, D. C., and Bryce Beecher, of Boston, Mass., of counsel), for appellant.
W. W. Cochran, of Washington, D. C. (J. Schimmel, of Washington, D. C., of counsel), for the Commissioner of Patents.
Before GARRETT, Chief Judge, and HATFIELD, JACKSON, O'CONNELL and JOHNSON, Judges.
GARRETT, Chief Judge.
This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the rejection by the Primary Examiner of the single claim of appellant's application for patent, reading: "1. As a composition of matter, 2 ethyl hexyl salicylate."
This and another appeal by Finley (Patent Appeal No. 5571 involving application, serial No. 409,842) are companion cases. They were consolidated for hearing before us, argued together, and are being decided concurrently. See In re Finley, 174 F.2d 135, 36 C.C.P.A., Patents, ___.
In the statement of the examiner, following the appeal to the board, it is said: "The alleged invention relates to the ester of 2 ethyl hexyl alcohol, an iso-octyl alcohol, which is in effect normal hexyl alcohol substituted in the 2 position by an ethyl radical (CH2CH2CH2CH2CH.(C2H5)CH2OH), and salicylic acid, an hydroxy (OH) benzoic acid, which is represented by a benzene ring substituted by adjacent hydroxyl (OH) and carboxyl (COOH) groups."
The rejection was based upon the following patents and publications, it being held that the claim is unpatentable over such references:
Kyrides, 1,979,559, Nov. 6, 1934; Thomas, 2,062,950, Dec. 1, 1936; Bass et al., 2,154,598, Apr. 18, 1939; Frey, 2,320,228, May 25, 1943; Rule "Chem. Abstracts" Vol. 24 (1930) pp. 604-5; Karrer, "Organic Chemistry" (1938) Eng. Trans., pg. 74-76; Roger, "Chem. Abstracts" Vol. 32 (1938) pg. 1241.
With respect to the facts of the case, we quote the following from the brief for appellant:
"While there are minor differences between the views of the Examiner and appellant as to what the references disclose, none of such differences is of sufficient importance to have any real bearing on the issue here presented for determination. Therefore, for the purpose of the present appeal, it may be assumed that appellant, the Examiner, and the Board of Appeals are in substantial agreement as to what the references disclose. This was acknowledged in appellant's brief before the Board of Appeals * * * and also by the Board of Appeals in whose decision it was stated:
"The single claim at issue defines a compound, 2 ethyl hexyl salicylate, which appellant also designates as an `iso-octyl salicylate' in his specification. This compound which has not been found in the literature and is apparently new, is prepared by a method that is not contended to be any departure from the general manner of preparing alkyl salicylic acid esters * * *. The ester when converted to its calcium salt is said to be a desirable additant to lubricating oils and compositions and to have as such, calcium salt three times the thermal stability possessed by its isomer, the normal octyl ester salt, in lubricating oils.
"No question is raised as to the disclosure by the references of the use of metal salts of homologues and an isomer of the claimed compound as lubricant additants. The patent to Frey discloses a considerable number including the salt of octyl salicylate of the alkyl salicylates" * * *.
In view of the agreement, no detailed analysis of the references need be made. That the prior art discloses various homologues and at least one isomer of the claimed compound, all used as lubricant additants, is a part of appellant's concession, the isomer being n-octyl salicylate disclosed in the patent to Frey, which discloses also a large number of homologues.
While we do not find an express holding by either the examiner or the board that the ester, 2-ethyl hexyl salicylate, per se, has utility or value, the examiner, in effect, held that it is shown by affidavit that the calcium salt derived from the ester *132 when blended with oil is superior to a similar blend of oil with the calcium salt of the prior art products.
The board said: "* * * The ester when converted to its calcium salt is said to be a desirable additant to lubricating oils and compositions and to have as such, calcium salt three times the thermal stability possessed by its isomer, the normal octyl ester salt, in lubricating oils."
It seems obvious to us that the ester itself must be held to have utility as the basis of a valuable article if nothing more, and one of the questions in the case is whether that particular type of utility is a factor to be given weight on the matter of patentability. As we understand their decisions, both the examiner and the board were of opinion that the ester per se is too remote from the calcium salt, referred to in the affidavit as having been tested, to justify attributing utility to it in a patentable sense.
The affidavit referred to is that of Robert C. Palmer, a chemist employed by the assignee of the application here involved, who stated that during the month of May 1941 (the application appears to have been filed in the Patent Office September 6, 1941) he "was asked to determine the thermal stability of the calcium salt of 2-ethyl hexyl salicylate relative to the calcium salt of n-octyl salicylate," the latter being the isomer of the prior art.
The pertinent part of his affidavit reads:
"4. That he subjected 1 per cent blends of the calcium salts of 2-ethyl hexyl salicylate and n-octyl salicylate in lubricating oil to a thermal stability test in which the blends were heated in glass tubes under a nitrogen atmosphere. That the tubes were observed periodically for visible precipitate and that visible precipitate occurred first at the following test hours:
"at 341° F at 400° F.
"Ca-n-octyl salicylate 8 1
"Ca 2-ethyl hexyl salicylate 24 2
"5. Affiant further says that the visible precipitate resulted from decomposition of the calcium octyl salicylates and precipitation of calcium salicylate, and that it is a good measure of the stability of the esters to heat."
There was a rejection of the claim by the examiner on April 17, 1944, when the patent to Frey was cited, apparently for the first time. Nothing was there said in the decision as to the isomer feature, but it was said, "No invention is ordinarily seen in homologs of old compounds in the absence of any unpredictable properties." The examiner cited the decisions of this court in the three Ex parte Hass et al., cases (Patent Appeals Nos. 4819, 4820, and 4821) which are reported respectively in 141 F.2d 122, 127, and 130, 31 C.C.P.A., Patents, 895, 903, and 908.
The affidavit of Palmer seems to have been filed November 15, 1944, and the examiner, on March 16, 1945, responded in a brief decision, again rejecting the claim and declaring the rejection to be final.
The appeal to the board followed and the examiner in his statement, after analyzing the references, reiterating the alleged remoteness of the calcium salt from the claimed ester, and stating that the range of esters disclosed in the references is complete enough to enable one skilled in the art to predict the approximate properties of any specifically undisclosed ester, gave the following summary:
"Claim 1 has been rejected as unpatentable over the cited art. Applicant has presented no evidence that 2 ethyl hexyl salicylate per se is superior to the prior art products or has properties which anyone skilled in the art could not predict from a knowledge of the series of homologous and isomeric esters disclosed in the art."
After the brief on behalf of appellant had been filed before the board in support of his appeal, the examiner made a reply to it in which it was said, inter alia: "* * * A property of a compound may be expressed as a description of the effect produced when the compound is reacted with another substance. Thus the formation of a salt when the salicylate is reacted with an appropriate compound may be described as the property of `salt-forming' and the salt may be subsequently tested or its oil compositions, as by heating to determine the property which applicant has entitled `thermal stability'. But to assert that the property of the salt or of the oil *133 is the property of the ester is clearly a confusion of the issue."
The board said, inter alia:
* * * It is at least well settled that chemistry as a science is not so unpredictable as to mark every new compound as inventive and patentable.
* * * * * *
"We find that the recognition of the comparative inherent thermal stability of a derivative of the compound claimed, even if it be presumed to be inherent in the compound as characteristic of its structural arrangement, is not sufficient to controvert the conclusion we reach from the Frey patent and other cited art that its concept as a member of the homologous series of alkyl salicylates, and the certainty of its production by known methods used for other members of the series, would be obvious to the usual knowledge of the chemist. We agree with the Examiner that the aspect of the advantages in the use of its derivative is too remote a circumstance to mark this case as an exception to the In re Hass decision[s]."
In the course of its decision the board said that appellant "urges that such decisions as In re Hass * * * does [sic] not apply."
This is assigned as error in the reasons of appeal, and appellant insists before us that such decisions do apply. His brief refers specifically to the Hass et al. case involved in Patent Appeal No. 4819, supra. However, the same rule applied in that case to such issues as are regarded similar in principle to the issues here involved was applied also in the other two Hass et al. cases, supra. In the second of those cases (Patent Appeal No. 4820) this court, speaking through Judge Hatfield, after a recitation of the facts and referring to our decision in the Hass et al. case (Patent Appeal No. 4819), supra [141 F.2d 129], said:
"* * * For the reasons stated in our decision in that case, we are of opinion that the tribunals of the Patent Office were right in holding that, in order to be patentable, novel members of a homologous series of compounds must possess some unobvious or unexpected beneficial properties not possessed by homologous compounds disclosed in the prior art.
"Whether novel chemical compounds are patentable over prior art isomers and homologues, is a question to be determined in each case."
It may be said that in all three of the Hass et al. cases, supra, it was found, in effect, that the prior art disclosed subject matter homologous with the subject matter of the claims and, in some instances, disclosed subject matter isomeric with that of certain of the claims. Under the facts of those cases no distinction was there drawn by us between the homologues and the isomers upon the question of patentability, both types of compositions being produced in substantially the same manner.
As a matter of possible interest we here insert the definitions of the terms given in the Hackh Chemical Dictionary:
"homolog. Any one member of a series of compounds which have a structure differing regularly by some radical, as=CH2.
"isomer. Any compound having the same composition, but different properties, as another compound."
We said in our decision in the case involving Patent Appeal No. 4819, supra [141 F.2d 125]: "It is well understood by chemists that the members of a homologous series of chemical compounds possess the same principal characteristics; that generally the chemical and physical properties of the individual members vary gradually from member to member; and that knowledge of the properties and chemical behavior of one of the members of the series suggests to the chemist the properties and chemical behavior of the other members of the series. See Holleman & Walker, Textbook of Organic Chemistry, 5th Ed., 1920, pp. 41,42, and Paul Karrer, Organic Chemistry, 1938, p. 23."
On behalf of appellant it is sought to distinguish the instant case from the Hass et al. cases, supra. It is contended, in substance, that appellant's product is new and useful, and that it is shown by the *134 affidavit of Palmer to possess unobvious or unexpected beneficial properties not possessed by either the homologous compounds or the isomer disclosed in the prior art.
Obviously appellant construes our holding in those cases to mean that if a new and useful product does show unobvious or unexpected beneficial properties it follows that such a product is patentable. We did not affirmatively, or even by implication, so state in our decisions there. Our statement meant merely that unless a product does show the defined characteristics it is not patentable. Even if they be shown, the consideration of other factors may be required. As we said in our decision in the second Hass et al. case, supra, "Whether novel chemical compounds are patentable over prior art isomers and homologues, is a question to be determined in each case."
In the case of In re Wietzel et al., 39 F.2d 669, 671, 17 C.C.P.A., Patents, 1079, we had before us certain claims, relating to the process of manufacturing formamid and hydrocyanic acid, which had been rejected by the tribunals of the Patent Office on prior art. In its decision the Board of Appeals cited certain prior art as being sufficient "to raise a presumption at least" that the reactions disclosed would apply to processes defined in the claims at issue, and said, "where there is no real reason to suppose that the result would not be produced there is no invention in trying it and finding out that the process is successful." This we quoted with approval.
The soundness of this holding was questioned in the second Hass et al., case, supra, and we declared adherence to it, citing the case of In re Von Bramer et al., 127 F.2d 149, 29 C.C.P.A., Patents 1018, 1023.
The brief of the Solicitor for the Patent Office contends that the rule so stated in the Wietzel et al., case, supra, is applicable to the instant case, it being conceded in the brief on behalf of appellant that his compound is best prepared by using the conventional method used in preparing the homologues and isomers of the prior art. The brief also asserts, citing cases: "It is the settled doctrine * * * that where the subject matter defined in the claims at issue involves only that which would naturally occur in the development of the art, the skill of the art being sufficient to its production, then the inventive faculty or inventive ingenuity has not been exercised, even though the results obtained are better than the expected."
The cases cited are: In re Gauerke, 86 F.2d 330, 24 C.C.P.A., Patents, 725; In re Kepler, 132 F.2d 130, 30 C.C.P.A., Patents, 726; In re Carothers et al., 135 F.2d 343, 30 C.C.P.A., Patents, 995; In re Leum et al., 158 F.2d 311, 34 C.C.P.A., Patents, 762; In re Lieser, 162 F.2d 224, 34 C.C.P. A., Patents, 1113.
The brief further states: "* * * it is believed that appellant's contention with respect to the rule of the Hass cases is in conflict with the decisions of this Court, in In re Merz [sic], 97 F.2d 599, 25 C.C. P.A., Patents, 1314; In re Crosley et al., 159 F.2d 735, 34 C.C.P.A., Patents, 882; In re Michalek, 161 F.2d 253, 34 C.C.P.A., Patents, 976. In the latter case in particular the claimed compound was rejected upon the disclosure of an isomer in the prior art, and an available process for producing the isomer."
That there is some analogy between the case of In re Michalek, supra, and the instant case is obvious from an examination of our decision there. The single claim involved was for a chemical product which was found to be isomeric with a product disclosed as being produced by a process of the prior art, and there as here the appellant relied upon affidavit evidence introduced during the prosecution of the application.
In that case, one affidavit by a chemist was to the effect that in a test of a prior art process a substantial yield of dichloro styrene (a described form of which was the product claimed by the appellant there) was produced, but it was also shown by test that the product of the prior art was less pure than the product involved in the claim. In the instant case, the situation differs in that the test was made of calcium salts derived from the product claimed *135 and calcium salts derived from that product's isomer disclosed by the prior art, the test being made to determine the matter of thermal stability, and not that of purity as in the Michalek case, supra.
There is no explanation in the record as to why the salts of the respective esters were tested instead of the esters themselves. Whether it would have been possible to test the esters except by testing the substances derived from them does not appear from the record. The affiant, Dr. Palmer, who, so far as the record shows, was asked to test only the respective calcium salts, does state, as we understand his affidavit, that the result obtained was "a good measure of the stability of the esters to heat." (Italics supplied)
We do not question the veracity of affiant, but in view of the meagerness of the record, as above indicated, we are not prepared to attribute error to the holding of remoteness made by the board. Even if we should disagree with the board upon that question, we do not feel, viewing the record in the light of the authorities cited, that the grant of the patent sought would be proper.
The decision of the Board of Appeals is, therefore, affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600684/ | 173 N.W.2d 579 (1970)
James LARSEN and Peggy Larsen, Appellants,
v.
POTTAWATTAMIE COUNTY, Iowa, Appellee.
No. 53806.
Supreme Court of Iowa.
January 13, 1970.
*580 Porter, Heithoff, Pratt & Reilly, by James A. Pratt, Council Bluffs, for appellants.
Johnson, Stuart, Tinley & Peters, by Jack W. Peters, Council Bluffs, for appellee.
RAWLINGS, Justice.
Plaintiffs, husband and wife, by action at law seek damages from defendant county in connection with a single vehicle bridge related accident.
Trial court sustained defendant's pleading based motion to dismiss. Plaintiffs elected to stand on the record, and appeal. We reverse.
By their petition plaintiffs seek recovery under chapter 613A, Iowa Code Annotated (Tort Liability of Governmental Subdivisions), claiming in substance a secondary road system bridge in Pottawattamie County was negligently constructed, inspected, repaired, and maintained, with no warning given as to its faulty condition; the plaintiff operated and occupied pickup truck struck a loose plank on the bridge; that each plaintiff was resultantly injured and the truck damaged.
By its motion to dismiss defendant asserted the petition, (1) stated no cause upon which any relief could be allowed, and (2) is predicated upon a breach of duty not imposed upon defendant by law.
In sustaining the dismissal motion, trial court did not specify the basis of its ruling. See rule 118, Rules of Civil Procedure.
On appeal, however, all parties proceed upon the premise, trial court held, in effect absence of duty on the part of defendant precluded recovery by plaintiffs. Our review will be accordingly confined.
I. Established rules regarding construction of pleadings challenged by a motion to dismiss are set forth at some length in Hagenson v. United Telephone Company, Iowa, 164 N.W.2d 853, 855-856, and need not be here repeated. See also Appling v. Stuck, Iowa, 164 N.W.2d 810, 811-812.
Our task is to ascertain whether the petition filed by plaintiffs states a claim on which any relief can be allowed.
This means we must determine defendant's responsibility, if any, with regard to maintenance and repair of bridges located on a secondary road system within the county.
*581 II. At the outset it is well established in this jurisdiction, counties are recognized political subdivisions of the state. State ex rel. Iowa Employment Security Commission v. Des Moines County, 260 Iowa 341, 346, 149 N.W.2d 288.
Also, under the provisions of chapter 613A, I.C.A., counties are municipalities and liable for the negligence of their respective officers, agents and employees acting within the scope of employment.
III. Plaintiffs contend the law imposes upon Pottawattamie County the duty to construct and maintain secondary road bridges, within its boundary lines, in a reasonably safe condition for use by all travelers. See Nicholson v. City of Des Moines, 245 Iowa 270, 277, 60 N.W.2d 240, 44 A.L.R.2d 616.
Conversely defendant argues the Fifty-Fourth General Assembly, in repealing sections 309.1 and 309.2, Code, 1950, inferentially if not directly placed responsibility for all secondary bridges, other than those on intercounty highways, upon the state highway commission. It appears to us this approach ignores several well established precepts and existing statutes. We do not elect to adopt it.
A bridge is ordinarily considered an integral part of the road on which it is located. Section 4.1(5), Code, 1966; Brooks v. Dickey, Iowa, 158 N.W.2d 11, 13; Braden v. Board of Supervisors, Iowa, 157 N.W.2d 123, 125-127; Oregon Transfer Co. v. Tyee Construction Company, D.C., 188 F.Supp. 647, 649; 11 C.J.S. Bridges section 3, page 985; and 39 Am. Jur.2d, Highways, Streets, and Bridges, sections 80-81, page 467.
Furthermore, existing legislative enactments apart from those repealed by the Fifty-Fourth General Assembly, supra, clearly impress upon each county the statutory duty to repair and maintain bridges located on its secondary roads. This is well settled under established rules of statutory construction.
In that regard we have repeatedly held, statutes relating to the same subject matter, or in "pari materia" must be considered together. See Boomhower v. Cerro Gordo County Bd. of Adjustment, Iowa, 163 N.W.2d 75, 76; Northwestern Bell Tel. Co. v. Hawkeye State Tel. Co., Iowa, 165 N.W.2d 771, 774; and France v. Benter, 256 Iowa 534, 541, 128 N.W.2d 268.
Another standard employed in ascertaining legislative intent is that if fairly possible courts must avoid unreasonable, impractical or absurd consequences. Hedges v. Conder, Iowa, 166 N.W.2d 844, 853; Janson v. Fulton, Iowa, 162 N.W.2d 438, 442-443; and France v. Benter, supra. See also rule 344(f) (13), Rules of Civil Procedure.
IV. Code section 306.1 classifies the highways in this state, one being a secondary road system. Then section 306.3 vests jurisdiction and control of secondary roads in boards of supervisors within their respective counties.
Also, section 309.3 provides, in substance, the secondary bridge system within a county embraces all bridges located therein, with certain exceptions not here relevant.
Additionally, section 309.67 mandates that boards of supervisors, with their county engineers, cause the secondary road systems to be kept in proper condition, and specifically that all bridges, including approaches, be kept open and free from obstruction.
Regardless of the content of those laws repealed by the Fifty-Fourth General Assembly, referred to above, remaining statutes, supra, clearly reveal the legislative intent that a duty be impressed on all counties in this state to repair, maintain and keep in a reasonably safe condition all bridges and their approaches located upon *582 or which form a part of any secondary road system located within their respective boundaries. Any other conclusion would serve, in essence, to unreasonably make each bridge located on a secondary road an island or no-man's-land.
Defendant's motion to dismiss should have been overruled.
Resultantly we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded with instructions.
All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600820/ | 1 So.3d 177 (2008)
FAIRLEY
v.
STATE.
No. 1D07-2618.
District Court of Appeal of Florida, First District.
December 22, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600823/ | 1 So.3d 178 (2009)
GUERRA
v.
McNEIL.
No. 1D08-2550.
District Court of Appeal of Florida, First District.
February 2, 2009.
Decision without published opinion. Cert.denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600836/ | 1 So.3d 756 (2008)
Bryan Anthony SCHEAFFER and Gabriela Harper Scheaffer
v.
BALBOA INSURANCE COMPANY a/k/a Newport Insurance Company and Countrywide Home Loans.
No. 2008-CA-1008.
Court of Appeal of Louisiana, Fourth Circuit.
December 17, 2008.
Gabriela Harper Scheaffer, Bryan Anthony Scheaffer, Chalmette, LA, in proper persons, Plaintiffs/Appellants.
*757 Eric J. Simonson, Lauren E. Campisi, McGlinchey Stafford, PLLC, New Orleans, LA, for Defendants/Appellees.
(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).
EDWIN A. LOMBARD, Judge.
This appeal was filed pro se by plaintiff, Gabriela Harper Scheaffer, individually and on behalf of her husband, Bryan Anthony Scheaffer. Subsequently, the defendant/appellees, Newport Insurance Company (Newport) and Countrywide Home Loans, Inc. (Countrywide), filed a "Motion for Partial Dismissal of Appeal." After review of the record in light of the applicable law and arguments of the parties, the trial court's judgment of June 4, 2008, is affirmed and the appellee's motion for partial dismissal of the appeal is denied as moot.
Relevant Facts and Procedural History
This litigation arises out of damages to the plaintiffs' residence[1] in St. Bernard Parish as a result of Hurricane Katrina which made landfall in Louisiana on August 29, 2005. In accordance with the mortgage on the property held by Countrywide, the plaintiffs were required to obtain and maintain hazard insurance on their home for the duration of their loan on the property. The mortgage agreement included a provision allowing Countrywide to procure hazard insurance to protect its own interests if the plaintiffs failed to comply with their obligation to maintain hazard insurance on the property. The plaintiffs allowed their homeowners' insurance policy to lapse and by letter dated July 13, 2005, Countrywide notified the plaintiffs that in accordance with their loan agreement hazard insurance coverage had been purchased from Newport at the plaintiffs' expense (from their escrow account) to protect Countrywide's interest in the property. The Notice of Premium attached to the letter specifically informed the plaintiffs in all capital letters:
YOU ARE NOT AN INSURED UNDER THIS POLICY, AND YOU ARE NOT ENTITLED TO RECEIVE THE PROCEEDS FROM THIS POLICY IN THE EVENT OF LOSS OR DAMAGE TO YOUR PROPERTY. THIS POLICY PROTECTS ONLY THE MORTGAGEE'S INTEREST IN THE DESCRIBED LOCATION.
The plaintiffs' home sustained massive damage as a result of Hurricane Katrina and after an unsuccessful attempt to make a claim on the Newport insurance policy, the plaintiffs filed suit on August 24, 2006, against Countrywide and Newport[2] claiming that (1) Countrywide and Newport breached the express terms and conditions of the policy of insurance by failing to pay the plaintiffs for their losses and (2) due to the capricious and arbitrary nature of the actions by Countrywide and Newport, the plaintiffs were entitled under La.Rev.Stat. 22:658 and La.Rev.Stat. 22:1220 to additional penalties, including general damages. On March 21, 2007, Countrywide filed an exception of no cause of action, arguing that because it was not an insurance company, it could not issue an insurance policy, have a duty or ability to pay insurance claims, or be liable for penalties *758 under the Louisiana Insurance Code. The trial judge sustained Countrywide's exception but granted the plaintiffs' leave to amend their lawsuit.
The plaintiffs filed a supplemental and amending petition on June 26, 2007, alleging that Countrywide breached a fiduciary duty by refusing to assist them in procuring funds from Newport for repairs to the property and by conspiring with Newport "to suppress the recovery plaintiffs can produce against the insurance policy." Further, the plaintiffs alleged that Newport breached the express terms and conditions of the policy it issued to Countrywide pertaining to their property and that Newport breached a duty of good faith and fair dealing in handling the plaintiffs' claim. Finally, the plaintiffs sought a declaratory judgment that La. Rev. Stat. 22:265 was applicable to the policy at issue and that they were entitled to specific performance of the homeowner's insurance policy between Countrywide and Newport.
Countrywide filed a "Peremptory Exception of No Cause of Action, or in the Alternative, Motion for Summary Judgment" on August 9, 2007. After a hearing on December 7, 2007, the trial court signed the judgment on December 12, 2007, granting Countrywide's motion for summary judgment and specifically certifying that the judgment was a final judgment which provides the plaintiffs with a right of appeal. The notice of judgment was mailed to the plaintiffs on December 13, 2007. Neither the plaintiff's counsel of record nor the plaintiffs filed a timely notice of and motion for appeal of this judgment.
On March 11, 2008, Newport filed a peremptory exception of no right of action, arguing that the plaintiffs were not insured parties under its policy with Countrywide and, accordingly, the lack of privity between the plaintiffs and Newport entitled Newport to a judgment as a matter of law and dismissing the plaintiffs' claims against Newport. The trial court sustained Newport's exception, signing a final judgment dismissing the plaintiffs' claims against Newport with prejudice on June 4, 2008.
On July 2, 2008, the plaintiffs' counsel filed a motion to withdraw as counsel of record, attaching a copy of his letter to the plaintiffs dated June 9, 2008, wherein he advised the plaintiffs of the court's ruling that Newport had no duty to cover their losses because they were not the named insured parties and that, based upon his research, a motion to reconsider or an appeal would not be successful. On that same day, the plaintiff filed a pro se Notice of and Motion for Appeal for both the judgment of December 7, 2007 (dismissing plaintiffs' claims against Countrywide) and the judgment of June 4, 2008, (dismissing plaintiffs' claims against Newport). The trial court signed the plaintiffs' "Notice of and Motion for Appeal" on July 2, 2008.
On August 12, 2008, the appellees filed a Motion for Partial Dismissal of Appeal, arguing that to the extent that the plaintiffs' appeal sought dismissal of the December 12, 2007, judgment, it should be dismissed.
Assignment of Error No. 1
First, the plaintiffs assert that they have a cause of action against Countrywide for breach of its fiduciary obligation to them.
In accordance with La.Code Civ. Proc. art.1915, the December 12, 2007, judgment which dismissed all of the plaintiffs' claims against Countrywide was a final and appealable judgment. Thus, pursuant to La.Code Civ. Proc. art.1915, the deadline for the plaintiffs to appeal that judgment would have been sixty days following the "expiration of the delay for applying for a new trial or judgment not *759 withstanding the verdict." The judgment in this case specifically certified the judgment as a final judgment providing the plaintiffs with a right of appeal. Although the plaintiffs' counsel subsequently withdrew as counsel of record on July 2, 2008, at all times pertinent to this issue, the plaintiffs were represented by counsel. Accordingly, because the time to appeal the December 12, 2007, judgment had elapsed at the time the plaintiffs filed their notice of and motion for appeal, it was a nullity as it pertained to the December 12, 2007, judgment. The trial court[3] apparently failed to note this error in the pro se notice and motion but such error cannot serve to revive a right to appeal. Moreover, even accepting arguendo that the plaintiffs' right to appeal the summary judgment granted in favor of Countrywide was preserved, there is no evidence to sustain the claim that a fiduciary relationship existed between Countrywide and the plaintiffs. Accordingly, this assignment of error is without merit.
Because the appeal as it pertained to the December 12, 2007, judgment was a nullity, the appellees' motion for partial dismissal of the appeal[4] is denied as moot.
Assignment of Error No. 2
The plaintiffs argue that as third-party beneficiaries to the insurance contract between Countrywide and Newport, they have a right and/or cause of action against Newport. The judgment at issue in this case pertains only to Newport's peremptory exception of no right of action and, accordingly, that is the only issue properly before the court in this appeal.
The function of an exception of no right of action is to determine whether the plaintiff has any interest in the judicially enforced right asserted and, if not, to terminate the suit brought by one who has no judicial right to enforce the right asserted in the lawsuit. Because the determination of whether a plaintiff has a right of action is a question of law, we review exceptions of no right of action de novo. Mississippi Land Co. v. S & A Properties II, Inc., 01-1623, pp. 2-3 (La. App. 3 Cir. 5/8/02), 817 So.2d 1200, 1202-03 (citations omitted).
In support of its exception of no right of action, Newport attached (1) a copy of the insurance policy at issue; (2) the certificate of coverage placement which was sent to Mr. Scheaffer[5] to advise him that insurance had been purchased to protect Countrywide's interest in the property due to his failure to maintain insurance as required by the loan agreement between the plaintiff and Countrywide and that the insurance was solely for the protection of Countrywide's interest; (3) a letter dated September 13, 2005, acknowledging receipt of Mr. Scheaffer's claim and advising him that he was not entitled to receive the proceeds from the policy issued to Countrywide; and (4) the invoice of a check issued on November 21, 2005, to Countrywide in the amount of $19, 219.37, in payment for hurricane loss pertinent to the Scheaffer residence and referencing the loan agreement between the plaintiffs and Countrywide.
*760 In opposition, the plaintiffs alleged that because they could not procure insurance on their own Countrywide agreed to provide them with insurance but "unbeknownst to the plaintiffs, Countrywide apparently placed insurance on its own behalf through its sister company, Newport." The plaintiffs submitted nothing in support of their allegations.
A review of the policy at issue indicates that it very specifically and unambiguously was issued to protect only Countrywide's interest in the property; that Countrywide is the only party listed as an insured party, and, thus, that it created contractual obligations only between Newport and Countrywide. Even accepting arguendo that the plaintiffs did not receive the notices submitted by Countrywide advising the plaintiffs of the insurance policy, the plaintiffs were certainly aware that their own insurance policy had lapsed and, accordingly, they were on notice to ascertain whether (as they allege) insurance had been obtained on their behalf.[6]
Moreover, there is no merit in the plaintiffs' argument that because they were forced to pay premiums for the insurance contract between Newport and Countrywide, they are third-party beneficiaries of the insurance policy. Under Louisiana law, a contract for the benefit of a third party is referred to as a stipulation pour autri, see, e.g. Whitney National Bank v. Howard Weil Financial Corp., 93-1568, (La.App. 4 Cir. 1/27/94), 631 So.2d 1308, 1310, and requires a clear expression of intent to benefit the third party. Thus, in order to constitute a stipulation pour autri, a contract must be "in writing and clearly manifest an intention to confer a benefit upon a third party." DePaul Hospital v. Mutual Life Ins. Co. of New York, 487 So.2d 143, 146 (La.App. 4 Cir.1986); see also State, In re Adoption of S.R.P., 555 So.2d 612, 618 (La.App. 4 Cir.1989), writ denied, 556 So.2d 1288 (La. 1990). Clearly, nothing in the record supports the plaintiffs' allegation that they are the third party beneficiaries to the insurance contract between Newport and Countrywide.
Conclusion
After de novo review, the trial court judgment granting the exceptions of no right of action is affirmed. The appellees's motion for partial dismissal of the appeal is denied as moot.
JUDGMENT AFFIRMED; MOTION DENIED AS MOOT.
McKAY, J., Concurs in part and dissents in part.
McKAY, J., Concurs in part and dissents in part.
I concur with the majority that the plaintiffs' appeal of the December 12, 2007 judgment granting Countrywide's motion for summary judgment was a nullity because it was not timely appealed. I do, however, believe that had the appeal been timely that genuine issues of fact concerning Countrywide's dealings with the Scheaffers would have precluded summary judgment.
With regards to the majority's affirming of the trial court's granting of Newport's exception of no right of action, I respectfully dissent. The essential function of the peremptory exception of no right of action is to test whether the plaintiff has a real and actual interest in the suit. La. C.C.P. art 927(A)(5). Its purpose is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. It assumes that the petition states a valid *761 cause of action and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Wirthman-Tag Construction Co., LLC v. Hotard, 2000-2298, 2000-2299 (La. App. 4 Cir. 12/19/01), 804 So.2d 856, 859 (citing Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com'n, 94-2015 (La.11/30/94), 646 So.2d 885, 888). The Scheaffers argue that they are at least third-party beneficiaries of the policy of insurance that Newport placed on the Scheaffers's property because they were charged the insurance premiums and the deductibles on the policy. I believe that this gives the Scheaffers an actual interest in the insurance policy procured by Countrywide from Newport and as such gives the Scheaffers a right of action in this case.
NOTES
[1] Specifically, the residence was located at 2137 Brigade Drive in Chalmette, Louisiana, 70043.
[2] Initially, the plaintiffs named Countrywide's insurer as "Balboa Insurance Company aka Newport Insurance Company."
[3] Although Judge Manuel Fernandez, Division "B" of the 34th Judicial District, was the trial judge in this matter, the notice of and motion for appeal was signed by Judge Wayne Cresap.
[4] Notably, the appellees failed to alert the trial court in a timely manner of the error in the judgment submitted by the pro se plaintiff which was signed by the judge.
[5] The certificate of coverage placement, dated July 13, 2005, is addressed to Bryan Scheaffer.
[6] The plaintiffs admit that they received this notice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600946/ | 379 N.W.2d 239 (1986)
Ron BATES, Relator,
v.
INDEPENDENT SCHOOL DISTRICT NO. 482, LITTLE FALLS, in its capacity as administrative district for Independent School District No. 979, Respondent.
No. CX-85-1398.
Court of Appeals of Minnesota.
January 7, 1986.
*240 Donald W. Selzer, Jr., Oppenheimer, Wolff, Foster, Shepard & Donnelly, St. Paul, for relator.
Douglas P. Anderson, Rosenmeier & Anderson, Little Falls, for respondent.
Heard, considered and decided by POPOVICH, C.J., and RANDALL and CRIPPEN, JJ.
OPINION
POPOVICH, Chief Judge.
This is an appeal of a school board decision placing relator on unrequested leave of absence. Relator claims (1) the hearing examiner employed was unqualified and biased, and (2) respondent failed to provide sufficient evidence to support its grounds for placing relator on unrequested leave pursuant to Minn.Stat. § 125.12, subd. 6b. We affirm.
FACTS
Relator Ron Bates is employed by the Mid-State Educational Cooperative (Mid-State), Independent School District No. 979, as a continuing contract teacher. Mid-State was formed in 1971 to provide vocational and special education as a regional cooperative comprised of five member school districts. Respondent Independent School District No. 482, Little Falls, is the administrative district for Mid-State.
During the 1984-85 school year, Bates was employed in two continuing contract positions. First, he was employed full time as a learning disabled teacher at the Dr. S.G. Knight Elementary School in Randall, Minnesota. He worked there Monday through Friday from 8:00 a.m. to 4:00 p.m. Second, he was employed part time as coordinator for the Continuing Education Center (CEC). Bates worked six hours on each Tuesday and Thursday evening to fulfill his 12 hour commitment.
For one year, John Russell, director of Mid-State, had been considering restructuring the Independent School District No. 979 special education services. Plans included consolidating existing programs and altering emphasis from curative to prevention approach. Russell projected funding for the new program could be obtained from nonlocal sources. He decided to recommend termination of the part time CEC position and replace it with a full time position. The new position would require travel to schools within the cooperative during working-day hours.
On April 8, 1985, respondent passed a resolution proposing to place relator on unrequested leave of absence from his CEC position as of the close of the 1984-85 school year. Relator received a letter of notice informing him of his right to a hearing which stated:
For your information, however, this action is taken because of the discontinuance of your position; namely CEC tutor with the Mid-State Cooperative in School District 482, because of the financial condition of this school district and the decline in its enrollment.
On May 9, 1985, relator's requested hearing was held before Gordon H. Hansmeier, a St. Cloud, Minnesota lawyer. At the hearing, relator's representative's objection to Hansmeier as being unqualified was denied. On May 17, 1985, Hansmeier recommended relator be placed on unrequested leave and on May 28, 1985, respondent voted to place relator on unrequested leave as proposed and recommended.
ISSUES
1. Was the hearing examiner qualified?
2. Was relator properly placed on unrequested leave of absence pursuant to Minn. Stat. § 125.12 (1984)?
*241 ANALYSIS
1. Relator claims the hearing examiner employed was not qualified. At the hearing, the examiner stated he was a lawyer, but conceded he was not among the three types of examiners listed in Schmidt v. Independent School District No. 1, 349 N.W.2d 563 (Minn.Ct.App.1984).
Among those qualified to serve as the hearing examiner are:
(1) Retired judges.
(2) A state hearing examiner hired pursuant to Minn.Stat. § 14.55 (Supp. 1983).
(3) An arbitrator qualified by the State Public Employment Relations Board pursuant to Minn.Stat. § 179.72 (Supp.1983).
Id. at 568.
Relator incorrectly interprets that list as exclusive. A hearing examiner is not conclusively unqualified merely because he is not among those listed in Schmidt. An independent showing of bias or lack of qualification or neutrality is necessary. Relator has not made such a showing.
Evidence does not establish the hearing examiner possessed any bias against relator. Cf. Pinkney v. Independent School District No. 691, 366 N.W.2d 362, 365 (Minn.Ct.App.1985) (hearing examiner had a matter pending before the involved school district's attorney, who was acting as a hearing examiner for another school district represented by the first hearing examiner). Here, no history of bias in favor of school districts was demonstrated, but relator claims the hearing examiner's lack of experience is a factor to be considered. We disagree. Experience is not requisite to constitute qualification. Were that so, existing hearing examiners would form an exclusive group and inexperienced and otherwise qualified persons would be excluded.
As stated in Kroll v. Independent School District No. 593, 304 N.W.2d 338 (Minn.1981), the concern is that boards of education should not be prosecutor, judge, and jury in these matters. That has not been shown as the case here. Relator has not demonstrated the examiner possessed any lack of skill, integrity, bias, or any predisposition to favor the school district's position. We therefore cannot find the hearing examiner unqualified based on this record.
2. Relator claims respondent failed to produce evidence sufficient to justify its bases for placing relator on unrequested leave of absence. In its letter notifying relator of its proposed action, respondent stated its reasons were discontinuance of position, financial conditions, and decline in enrollment.
The school board may place on unrequested leave of absence, without pay or fringe benefits, as many teachers as may be necessary because of discontinuance of position, lack of pupils, financial limitations, or merger of classes caused by consolidation of districts.
Minn.Stat. § 125.12, subd. 6b (1984) (emphasis added).
Our scope of review of a school board's decision to place a teacher on unrequested leave of absence is limited.
A school board's decision to terminate a teacher or principal should be set aside only if the decision is fraudulent, arbitrary, unreasonable, not supported by substantial evidence on the record, not within the school board's jurisdiction, or is based on an erroneous theory of law.
Pearson v. School Board of Independent School District No. 381, 356 N.W.2d 438, 440 (Minn.Ct.App.1984) (quoting Liffrig v. Independent School District No. 442, 292 N.W.2d 726, 729 (Minn.1980)).
Review of a school board's decision to place teachers on unrequested leave of absence is limited, and this court seldom will find a board's decision is not supported by substantial evidence.
Pinkney, 366 N.W.2d at 365.
Relator claims respondent failed to produce evidence showing decline in enrollment. Review of the hearing transcript supports relator and enrollment would probably continue to be the same.
*242 Regarding financial limitations, respondent argues it will save approximately $12,000 through total revision of the Mid-State program. John Russell testified at the hearing and insisted the CEC position could not be analyzed independently of the total program. He stated the totality of the revisions would permit nonlocal funding to be used, and that change would result in the $12,000 savings. He admitted the new position itself would not save, but would require additional money.
Relator argues unrequested leave of absence must be necessary because of financial limitations. See Minn.Stat. § 125.12, subd. 6b. While absolute financial necessity need not be shown, Laird v. Independent School District No. 317, 346 N.W.2d 153, 156 (Minn.1984), more than mere financial convenience must be demonstrated.
While evidence may be lacking to support the grounds of enrollment decline and financial limitations alone, respondent has provided sufficient evidence to support the ground of discontinuance of relator's position. A single statutory ground is sufficient to support respondent's actions. See id.
As admitted by relator, "A teacher is entitled to continue in his or her position unless the school district genuinely discontinues that position." Relator claims the CEC position was not discontinued, but was merely combined with an additional assignment. A new and distinct full time position has been created, however, which incorporates the part time position's duties. The new full time position is designed to encompass a new scope and it appears essential to the school district that a single person perform all the duties related to this new position. Relator still retains his other full time position, which hours are inconsistent with the new full time position.
Respondent cites State ex rel. Dreyer v. Board of Education, 344 N.W.2d 411 (Minn.1984). There a full time principal was placed on unrequested leave regarding one-half of his position. A full time teaching position for which he was qualified became available. Dreyer wished to remain as part time principal and assume part time teaching duties. The Board denied his request. The Minnesota Supreme Court remanded for determination whether "sound educational policy" supported the Board's denial.
Here, at the hearing, respondent offered evidence of sound educational policy supporting its decision not to retain relator as a part time CEC coordinator and employ another individual to assume all other duties of the new full time position. The primary reasons were flexibility and continuity, which would be necessary to treat the needs of special students in a preventative as well as a curative fashion.
Respondent's decision to discontinue relator's part time position and create a comprehensive full time position has not been shown to be arbitrary or unreasonable, and is certainly within the school board's jurisdiction. The decision is supported by credible planning, thought by the school district to be in the students' best interests. Relator's position as it formerly existed has been discontinued.
DECISION
Based on the record before us, the hearing examiner employed was qualified. Relator was properly placed on unrequested leave of absence.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922252/ | ROBERT GASPARD, ET AL.
v.
GILLEY RAM, ET AL.
No. 08-152.
Court of Appeal of Louisiana, Third Circuit.
May 28, 2008.
FREDERICK L. CAPPEL, KEVIN J. KOENIG, RAGGIO, CAPPEL, CHOZEN & BERNIARD, Lake Charles, LA, Counsel for Defendant/Appellant: Sookdeo Ramkhalawan, a/k/a Gilley Ram.
ROBERT E. MORGAN, Attorney at Law, Lake Charles, LA, Counsel for Plaintiffs/Appellees: Robert Gaspard, John McRay, Romeo Laurel.
Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and ELIZABETH A. PICKETT, Judges.
PICKETT, J.
The defendant, Gilley Ram, appeals a judgment of the trial court confirming a default judgment in favor of the plaintiffs, Robert Gaspard, John McRay, and Romeo Laurel, and against Sookdeo Ramkhalawan, Ramkhalawan, Inc. (d/b/a Ram, Inc.), and Gilley Ram, in solido, granting the plaintiffs $805,557.00 for damage sustained to their property during Hurricane Rita. We annul and set aside the judgment of the trial court and remand the case for further proceedings.
FACTS
In June 2005, Ramkhalawan, Inc. purchased four vessels, former Russian trawlers, from Sallie McCall, Inc. for $75,000.00 per vessel, or a total of $300,000.00. The vessels were purchased "as is, where is." At the time of the sale, all four vessels were resting in the mud on the east bank of the Calcasieu River, north of Cameron and had been so located for approximately six years. During August and September of 2005, two hurricanes hit the Louisiana coast, Hurricaines Katrina and Rita. Hurricane Katrina hit the eastern portion of the coast in August; and Hurricane Rita hit the western portion of the coast in September. During Hurricane Rita one of the ex-trawlers broke free from its moorings and allegedly damaged and/or destroyed property belonging to the plaintiffs. The plaintiffs filed suit against Sookdeo Ramkhalawan, Ramkhalawan, Inc. (d/b/a Ram, Inc.), and Gilley Ram. A default judgment was taken and a confirmation hearing was held on May 23, 2007. The final judgment was signed June 22, 2007. This appeal by Gilley Ram, who is also known as Sookdeo Ramkhalawan, followed.
LAW AND DISCUSSION
The law concerning default judgments is well settled and was recently discussed by our colleagues of the fourth circuit in Cunningham v. M & S Marine, Inc., 05-805, pp. 2-5 (La.App. 4 Cir. 1/11/06), 923 So. 2d 770, 772-74:
"A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case." La. C.C.P. art. 1702(A). Construing the prima facie case requirement of Article 1702, the Louisiana Supreme Court in Sessions & Fishman v. Liquid Air Corp., 616 So. 2d 1254 (La.1993), stated:
In order for a plaintiff to obtain a default judgment, "he must establish the elements of a prima facie case with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant." Thibodeaux v. Burton, 538 So. 2d 1001, 1004 (La.1989); Blue Bonnet Creamery, Inc. v. Simon, 243 La. 683, 146 So. 2d 162, 166 (1962). "In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits." Thibodeaux, 538 So.2d at 1004. A plaintiff seeking to confirm a default must prove both the existence and the validity of his claim.
616 So.2d at 1258.
In reviewing a default judgment, an appellate court is restricted to determining whether the record contains sufficient evidence to prove a prima facie case. Rhodes v. All Star Ford, Inc., 599 So. 2d 812, 813 (La.App. 1 Cir.1992).
Confirming a default judgment is akin to a trial at which only the plaintiff is present. 1 Frank L. Maraist & Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 12.3 (1999). At such trial, the unopposed plaintiff must comply with a set of special, somewhat strict rules in proving his claim. 19 Frank L. Maraist, Louisiana Civil Law Treatise: Evidence and Proof § 2.9 (1999). The following special rules are pertinent to the present case.
First, the plaintiff is confined to the facts and the theories pled in his petition; he may not expand his pleadings by introducing evidence at the confirmation hearing. Thus, the plaintiff is precluded from obtaining a default judgment "different in kind from that demanded in the petition." La. C.C.P. art. 1703; see Spear v. Tran, 96-1490 (La.App. 4 Cir. 9/18/96), 682 So. 2d 267. However, the Louisiana Supreme Court has held that "the pleadings which lead up to the demand, or prayer, upon which a default judgment is based are to be construed no more restrictively than pleadings suggestive of other judgments." Royal Furniture Co. of Baton Rouge, Inc. v. Benton, 260 La. 527, 532, 256 So. 2d 614, 616 (1972).
Second, "[b]ecause at a default confirmation there is no objecting party, . . . both plaintiff and the trial judge should be vigilant to assure that the judgment rests on admissible evidence" that establishes a prima facie case. George W. Pugh, Robert Force, Gerald A. Rault, Jr., and Kerry Triche, Handbook on Louisiana Evidence Law 639 (2003 ed.). As a corollary, "[e]xcept as authorized by the Code of Civil Procedure Article 1702, or evidence that fits within one of the exceptions provided by [the Louisiana Evidence] Code, hearsay evidence is inadmissible to confirm a default." Id.; see La. C.E. art. 1101(A)(providing that "[e]xcept as otherwise provided by legislation, the provisions of this Code shall be applicable to the determination of fact . . . in proceedings to confirm a default.")
Third, depending on the nature of the plaintiff's demand, Article 1702 sets forth several exceptions to the rule against the use of hearsay evidence at the confirmation hearing. One of those pertinent exceptions is that "[w]hen a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such [delictual] demand." La. C.C.P. art. 1702(B)(2). Another pertinent exception is that "[w]hen the demand is based upon a claim for personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony." La. C.C.P. art. 1702(D); see Smith v. Lewis, 597 So. 2d 1267 (La.App. 3 Cir.1992)(construing this provision to mean that a treating physician's affidavit that incorporates an attached narrative report is a "sworn narrative report of the treating physician" sufficient to establish a prima facie case).
Finally, a defendant against whom a default judgment is confirmed may not assert an affirmative defense on appeal. Having failed to answer or defend the suit, a defendant cannot defeat the default judgment against it by asserting a defense on appeal. Galland v. National Union Fire Ins. Co. of Pittsburg, Pennsylvania, 452 So. 2d 397, 398-99 (La.App. 3 Cir.1984); Romero v. Sunseri, 359 So. 2d 305, 308 (La.App. 4 Cir.1978).
The record shows that the four vessels were sold to and owned by Ram, Inc. at the time Hurricane Rita made landfall. In their petition, the plaintiffs claim that their damage was caused by one of the vessels owned by the corporation. Louisiana Civil Code Article 24 provides (emphasis ours): "There are two kinds of persons: natural persons and juridical persons. A natural person is a human being. A juridical person is an entity to which the law attributes personality, such as a corporation or a partnership. The personality of a juridical person is distinct from that of its members." Thus, a corporation is a distinct legal entity, separate from the individuals who comprise it. The law provides that shareholders of a corporation "shall not be liable personally for any debt or liability of the corporation." La.R.S. 12:93(B). Therefore, if the plaintiffs' damages were caused by a vessel owned by Ram, Inc. because of the negligence of Ram, Inc. or because of a breach of some duty owed to the plaintiffs by the corporation, then it is the corporation which is liable.
There is no evidence that the appellant was acting in his individual capacity when he made the decision not to send men to help secure the vessel with cable. In fact, the evidence shows that all contact with the appellant was made in his capacity as an officer of the corporation and that he was acting on behalf of the corporation when his decision was made. Furthermore, the appellant had no individual ownership interest in the vessel. While we recognize that there are some limited circumstances in which an officer or a shareholder of a corporation may be held liable for the acts of a corporation the plaintiffs in this case failed to " establish the elements of a prima facie case with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant." Thibodeaux, 538 So.2d at 1004. "In sum, the plaintiffs failed to "present competent evidence that convinces the court that it is probable that [they] would prevail on a trial on the merits." Id.
Accordingly, for the reasons stated above, the default judgment against Gilley Ram, a/k/a Sookdeo Ramkhalawan, is annulled and set aside and the case remanded for further proceedings. All costs of this appeal are assessed against the plaintiffs, Robert Gaspard, John McRay, and Romeo Laurel.
ANNULLED AND SET ASIDE; REMANDED. | 01-03-2023 | 10-30-2013 |
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