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https://www.courtlistener.com/api/rest/v3/opinions/1922307/ | 33 Mich. App. 461 (1971)
190 N.W.2d 323
PEOPLE
v.
CIMINI
Docket No. 8760.
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 Leonard Meyers, Assistant Prosecuting Attorney, for the people.
Philip A. Gillis, for defendant on rehearing.
Before: McGREGOR, P.J., and QUINN and O'HARA,[*] JJ.
ON REHEARING
McGREGOR, P.J.
Critical facts referred to in defendant's brief on rehearing, apparently not considered by the trial court, warrant further consideration of defendant's conviction for violation of MCLA § 750.131 (Stat Ann 1971 Cum Supp § 28.326) (drawing a check without sufficient funds), reported in 25 Mich App 698.
At the time of the alleged offense, February 29, 1968, defendant was the sole stockholder and an officer of the Empire Cartage Company, a Michigan corporation, and under its by-laws, was empowered to draw checks on the bank checking account of the corporation. For six or seven years prior to February 29, 1968, the corporation had maintained a checking account at the same Detroit bank, and there *463 was testimony that both Mr. Cimini and the account were reportedly in good standing with the bank.
In the latter part of January, 1968, the defendant, on behalf of the Empire Cartage Company, deposited three checks, drawn on a New York bank, which totalled in excess of $7,000. Shortly thereafter, the bank manager learned that these checks were about to be dishonored by the New York bank (although the checks had not yet been returned), and came to the defendant's home on a Sunday to inform him of this. On the following day, February 5, the defendant came to the bank and informed the manager that he would attempt to rectify the situation; at this time, he deposited approximately $2,800. On February 6, the checks had been returned from New York and were posted against the account, creating an overdraft of approximately $6,000. The bank manager testified that he assumed that it was just a matter of a wrong account number or something of this nature as the reason why the checks had not cleared; Mr. Cimini agreed with him that it must have been some sort of mistake.
The bank manager testified that, two or three days later, he called the defendant, indicated that he wanted to see him, and inquired as to what had occurred relative to these checks. Mr. Cimini explained that he was still attempting to resolve the matter. No further testimony was introduced regarding any subsequent conversations or discussions between the defendant and any of the bank personnel. Although the matter of the dishonored checks had not been resolved and the account was still overdrawn, the defendant, on February 29, 1968, presented an Empire Cartage check, drawn on this Detroit bank, to a teller in the bank, with defendant as drawer and payee, in the amount of $155. At the time this check was presented, the teller did *464 not consult any records to determine the defendant's account balance.
Testimony was also introduced to the effect that it was the practice of the Detroit bank to pay checks drawn on certain accounts even when there were insufficient funds in such accounts to cover the checks, when it was thought that the depositor would later deposit sufficient monies to eliminate the overdraft.
The elements involved here were noted in 25 Mich App 698, 699.
Initially, the defendant argues, the trial judge made no finding of an intent to defraud, and if he did, he improperly applied the law. The judge's findings on this element are contained in the following language:
"Now, the intent to defraud, and I think it only necessary, the only necessary intent to defraud which is required under the statute, is an intent to obtain money. And I think that that intent was presented here at the time the defendant presented the check."
We express concern that the findings concerning this element are inconclusive, and we are unable to make a proper determination based on these findings. Furthermore, if, at the time of issuing the check, the defendant entertained a reasonable expectation that the check would be paid upon presentation, the element of intent to defraud would be lacking. People v. Coats (1969), 16 Mich App 652; see also Anno., 9 ALR3d 719. The court apparently did not fully consider this, although the trier of fact may well have found that a reasonable expectation of payment existed. On retrial, this defense should be considered by the trier of fact.
Reversed and remanded.
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/797413/ | 482 F.3d 1008
UNITED STATES of America, Appellee,v.James Donald GRIFFIN, Appellant.
No. 06-2905.
United States Court of Appeals, Eighth Circuit.
Submitted: January 10, 2007.
Filed: April 3, 2007.
John O. Moeller, argued, Davenport, IA, for appellant.
Edwin F. Kelly, Jr., argued, Asst. U.S. Atty., Des Moines, IA (Joel W. Barrows, Asst. U.S. Atty., Davenport, IA, on the brief), for appellee.
James Donald Griffin, Des Moines, IA, pro se.
Before MURPHY, HANSEN, and SMITH, Circuit Judges.
SMITH, Circuit Judge.
1
James Griffin pleaded guilty to receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2), and possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The district court1 determined that Griffin's Guideline sentencing range was 87 to 108 months' imprisonment, after concluding that Griffin was subject to a five-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(2)(B). The enhancement was applied because Griffin's offense conduct involved the distribution of child pornography "for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain." The court ultimately sentenced Griffin to 78 months' imprisonment. Griffin appeals the court's imposition of the five-level distribution enhancement. We affirm.
I. Background
2
During an investigation of child pornography distribution in Denmark, Danish police seized a computer, pursuant to a search warrant, from a Danish residence. Forensic analysis of the seized computer revealed that a partially downloaded file containing child pornography had been downloaded to the computer from an Internet Protocol (IP) address that was traced to Griffin, a Davenport, Iowa resident. Local authorities obtained and executed a search warrant on Griffin's residence after Danish authorities relayed this information to them. Law enforcement officers seized a computer and several CD-ROMs containing approximately 67 video clips of child pornography from Griffin's residence.
3
A grand jury indicted Griffin for receiving child pornography, possessing child pornography, and forfeiture. Griffin pleaded guilty, without a plea agreement, to receiving and possessing child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) & (a)(4)(B), and agreed to the forfeiture.
4
The presentence investigation report (PSR) concluded that Griffin's offense level was subject to a five-level enhancement, pursuant to U.S.S.G. § 2G2.2(b)(2)(B),2 because Griffin's offense conduct involved the distribution of child pornography "for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain." Griffin objected to this enhancement, denying that he distributed any child pornography and arguing that even if a distribution occurred, he did not distribute the images for the receipt, or the expectation of receipt, of a thing of value.
5
Griffin admitted that he downloaded child pornography from Kazaa3—an internet peer-to-peer file-sharing network—but maintains that he only downloaded the images and videos for his personal use, not for distribution to others. However, Griffin also admitted that he knew Kazaa was a file-sharing program and knew that, by using Kazaa, other Kazaa users could also download files from his computer. The government asserted that Griffin's use of Kazaa with knowledge of its capabilities constituted distribution. By using the file-sharing site, Griffin enabled other Kazaa users to download files from Griffin's shared folder, including any child pornography files stored there. Otherwise, the government argued, Danish police could not have traced the partially downloaded child pornography clip discovered in Denmark back to Griffin.
6
The district court conducted an evidentiary hearing on the enhancement prior to sentencing Griffin. At the hearing, Agent Kevin Lang, with the Immigration and Customs Enforcement's public safety unit (which investigates, among other things, child sex crimes) testified that during an interview with agents that executed the search warrant at Griffin's residence, Griffin admitted to being the primary user of the computer seized and admitted that he had downloaded child pornography to his computer using Kazaa. Lang also testified that Griffin admitted that he knew that by using Kazaa he would be able to download files from other Kazaa users and that other Kazaa users would be able to download files from him. Agent Lang acknowledged that when Griffin's computer was seized, the Kazaa program and Griffin's shared folder had been deleted from the computer, making Griffin unable to distribute images via Kazaa at that time. However, Agent Lang testified that forensic analysts had recovered several deleted child pornography files that had been previously stored in a shared folder on Griffin's computer. Further, Lang testified that Griffin's IP address was attached to the partially downloaded child pornography file discovered by Danish authorities. The presence of Griffin's IP address established that the partially downloaded file had previously been on Griffin's computer, had been available for distribution, and was in fact distributed.
7
The district court concluded that the five-level enhancement applied, finding that Griffin had distributed child pornography by making images of child pornography available to others via the file-sharing network and that Griffin had an expectation of receiving pornographic images—a thing of value—in exchange for the images he made available to others. Griffin appeals, arguing that the court erred in finding that his use of a peer-to-peer file-sharing network to download images of child pornography warranted the imposition of the five-level enhancement under U.S.S.G. § 2G2.2(b)(2)(B).
II. Discussion
8
On an appeal of a district court's Guidelines sentencing enhancement, we review the district court's legal conclusions de novo and its factual findings for clear error. United States v. Goldman, 447 F.3d 1094, 1096 (8th Cir.2006).
9
Under § 2G2.2(b)(2)(B), a five-level increase should be imposed on a defendant guilty of receiving or possessing child pornography if the offense involved "distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain." U.S.S.G. § 2G2.2(b)(2)(B). For purposes of this guideline,
10
"Distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain" means any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit. "Thing of value" means anything of valuable consideration. For example, in a case involving the bartering of child pornographic material, the "thing of value" is the child pornographic material received in exchange for other child pornographic material bartered in consideration for the material received.
11
Application Note 1 of U.S.S.G. § 2G2.2. Additionally, "`[d]istribution' means any act including production, transportation, and possession with intent to distribute, related to the transfer of material involving the sexual exploitation of a minor." Id. (emphasis added).
12
This case presents the issue of whether an expectation of receipt of child pornography through Kazaa file sharing constitutes a "thing of value, but not for pecuniary gain" for sentence enhancement purposes under § 2G2.2(b)(2)(B). While this is an issue of first impression, it is not the first time our circuit has discussed Kazaa. In a factually similar case, we recently described how Kazaa works:
13
Kazaa allows its users to utilize the Internet to search for specific terms in the file names and descriptive fields of files located in any other Kazaa user's My Shared Folder. A Kazaa user can then download these files from the other user's My Shared Folder. The downloaded file will automatically be placed in the user's My Shared Folder to be searched and downloaded by other users unless the local user disables this feature.
14
United States v. Sewell, 457 F.3d 841, 842 (8th Cir.2006).4 In Sewell, we noted that by using Kazaa to download images of child pornography, the defendant "made these images available to be searched and downloaded by other Kazaa users by failing to disable the Kazaa feature that automatically places the files in a user's My Shared Folder." Id. Like the defendant in Sewell, Griffin's use of the peer-to-peer file-sharing network made the child pornography files in his shared folder available to be searched and downloaded by other Kazaa users as evidenced by the partially downloaded file recovered by Danish authorities.
15
Based on the applicable definition of "distribution" and our reasoning in Sewell, Griffin was engaged in the distribution of child pornography. See id.; Application Note 1 of U.S.S.G. § 2G2.2; United States v. Shaffer, 472 F.3d 1219, 1223-24 (10th Cir.2007) (finding defendant distributed child pornography when he downloaded child pornography from Kazaa and stored the files in a shared folder on his computer, accessible by other users on the network); United States v. Mathenia, 409 F.3d 1289, 1290 (11th Cir.2005) (applying two-level distribution enhancement for distributing child pornography through peer-to-peer file-sharing network); United States v. Postel, slip copy, 2006 WL 2513022, *4 (N.D.Iowa Aug.29, 2006) (finding defendant intended to distribute child pornography to others by using a peer-to-peer file-sharing network while having child pornography in his shared folder); United States v. Abraham, slip copy, 2006 WL 3052702, *7 (W.D.Pa. Oct.24, 2006) (finding that defendant distributed child pornography when as a result of the defendant's installation of an internet peer-to-peer file-sharing network on his computer, a law enforcement officer was able to download a child pornography file from defendant's computer to the officer's computer).
16
Thus, the only issue is whether Griffin's use of a file-sharing network to obtain child pornography from other network users, while allowing the child pornography files in his shared folder to be accessed and downloaded by others, constituted "distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain" under § 2G2.2(b)(2)(B). We hold that it does.
17
As stated above, "`distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain' means any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit." Application Note 1 of U.S.S.G. § 2G2.2. Further, in a case involving the bartering or trading of child pornography, the "`thing of value' is the child pornographic material received in exchange for other child pornographic material bartered in consideration for the material received." Id.
18
Under the previous version of § 2G2.2(b),5 we held that the five-level distribution enhancement was warranted if the defendant engaged in trading or bartering of child pornography, United States v. Horn, 187 F.3d 781, 791 (8th Cir.1999), or if the government demonstrated that the defendant expected to receive pornographic images in exchange for the images he distributed. United States v. Imgrund, 208 F.3d 1070 (8th Cir.2000). We now hold that § 2G2.2(b)(2)(B)'s five-level enhancement for the distribution of child pornography "for the receipt, or the expectation of receipt, of a thing of value, but not for pecuniary gain" applies to a defendant who downloads and shares child pornography files via an internet peer-to-peer file-sharing network, as these networks exist—as the name "file-sharing" suggests—for users to share, swap, barter, or trade files between one another.
19
Griffin admitted that he downloaded child pornography files from Kazaa, knew that Kazaa was a file-sharing network, and knew that, by using Kazaa, other Kazaa users could download files from him. By introducing these admissions into evidence, the government met its burden of establishing that Griffin expected to receive a thing of value—child pornography—when he used the file-sharing network to distribute and access child pornography files. See Postel, 2006 WL 2513022 at *4 ("By placing child pornography in his shared folder and by running [the file-sharing network], Defendant intended to barter his images of child pornography in the expectation that he would receive other [network] users' images of child pornography."). Therefore, the district court did not err in applying the five-level enhancement.
III. Conclusion
20
Accordingly, we affirm the decision of the district court.
Notes:
1
The Honorable Robert W. Pratt, Chief Judge, United States District Court for the Southern District of Iowa
2
Due to ex post facto concerns, the 2003 edition of the Sentencing Guidelines was used to calculate Griffin's sentencing range. For purposes of this enhancement, the 2006 edition is identical to the 2003 edition. Thus there is no need to distinguish the two
3
Kazaa and other similar peer-to-peer file-sharing networks allow users to trade files over the internet after downloading and installing the program on to their computer
4
Sewell also involved child pornography downloaded from Kazaa, but was an interlocutory appeal of an evidentiary ruling. Whether file-sharing constituted distribution for a thing of value under § 2G2.2(b)(2)(B) was not before the court.
5
Prior to 2000, § 2G2.2(b)(2) only provided for the five-level enhancement if the distribution was for pecuniary gain. In 2000, § 2G2.2(b)(2) was amended to provide for a five-level enhancement for the "distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain" as wellSee Guideline Amendment 592. Distributions involving trading or bartering of child pornography were included in the enhancement for "distribution[s] for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain." Id. | 01-03-2023 | 04-19-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1922209/ | 104 N.W.2d 305 (1960)
Marvin G. RALL, Plaintiff and Respondent,
v.
Verdell SCHMIDT, Defendant and Appellant.
No. 7896.
Supreme Court of North Dakota.
July 13, 1960.
Stanley Voas, Aberdeen, for plaintiff and respondent.
Leslie R. Burgum, Atty. Gen., and Dale H. Jensen, Asst. Atty. Gen., for defendant and appellant.
TEIGEN, Judge.
Judgment was entered in favor of the plaintiff and against the defendant as a result of an automobile accident for $1,155.72 special damages, $795 property damages and $1,000 general damages, plus costs equalling $24.50. Pursuant to due proceedings had, the court entered an order that the State Treasurer of the State of North Dakota pay to the plaintiff the sum of $2,180.22 in full satisfaction of that portion of the judgment for general damages and special damages, together with costs, pursuant to Chapter 39-17 of the 1957 Supplement to the North Dakota Revised Code of 1943 and amendments thereto known as the Unsatisfied Judgment Fund. The Attorney General of the State of North Dakota, pursuant to the powers provided by Section 39-1706 of the 1957 Supplement to the North Dakota Revised Code of 1943, has appealed from said order upon a question of law, the facts having been stipulated between the plaintiff and defendant (appellant) for the purposes of this appeal. The stipulation is as follows, to wit:
"Three actions were instituted by the plaintiffs Marvin G. Rall, Lorry Beth Rall, a minor by Marvin G. Rall her father and guardian ad litem, and Arlene Rall against the defendant, Verdell Schmidt. The actions arose out of the collision of two automobiles on October 19, 1957 on U. S. Highway No. 281 in the County of Dickey, State of North Dakota. Marvin G. Rall was the driver of one automobile and Lorry Beth Rall and Arlene Rall were the passengers in the car driven by Marvin *306 G. Rall. Verdell Schmidt was the driver of the second automobile. Summons and complaint were served upon the defendant, Verdell Schmidt, and Verdell Schmidt failed to answer the summons and complaint; whereupon notice of default was served upon the Attorney General and the State Highway Commissioner on the 19th day of January, 1959 together with a copy of the summons and complaint in the three actions. Answers in each of the three were served and filed on behalf of the defendant by the Attorney General's Office.
"The three actions were tried to the Court without a jury by stipulation of counsel at LaMoure, North Dakota in the County Courthouse on the 22nd day of May, 1959. Evidence was submitted in support of the plaintiffs cases. After hearing the evidence, the Court ordered judgment in each of the three cases for the plaintiffs. In the case of Lorry Beth Rall vs. Verdell Schmidt judgment was ordered in the amount of $15,000.00. In the case of Arlene Rall vs. Verdell Schmidt judgment was ordered in the amount of $500.00. And in the case of Marvin G. Rall vs. Verdell Schmidt judgment was ordered in the amount of $2,975.22.
"The judgment in the Marvin G. Rall vs. Verdell Schmidt case states in part: "That the plaintiff have judgment against the defendant in the amount of One Thousand One Hundred Fifty-five and 72/100 Dollars ($1,155.72).' The amount for doctor and hospital bills incurred by the plaintiff is composed of three separate items which are: 1. An amount of $987.29 paid by Marvin G. Rall for the care and treatment of his daughter, Lorry Beth Rall. 2. An amount of $92.52 paid for hospital and doctor bills paid by Marvin G. Rall for the care and treatment of his wife, Arlene Rall. 3. An amount of $75.91 for hospital and doctor bills paid by Marvin G. Rall for the care and treatment of himself.
"Judgment in each of these three cases was entered on July 8, 1959. On the 22nd day of August an application was made to the District Court for an order directing payment of these judgments for personal injuries in each of the three cases from the Unsatisfied Judgment Fund. The Court ordered that Marvin G. Rall be paid an amount of $2,180.22 for personal injuries and medical and hospital expenses incurred in the above entitled action. This amount of $2,180.22 included the amount of $987.29 for medical and hospital expenses paid by Marvin G. Rall for the care and treatment of Lorry Beth Rall, his daughter. The Court also ordered that Arlene Rall be paid an amount of $524.50 and that Lorry Beth Rall, a minor, by Marvin G. Rall, her father and guardian ad litem, be paid an amount of $5,024.50.
"Arlene Rall has received North Dakota check warrant number 44523 dated December 22, 1959, in the amount of $524.50, and check warrant number 44525 dated December 22, 1959, in the amount of $5,024.50 has been received by Lorry Beth Rall, in care of Marvin G. Rall, her guardian ad litem. These amounts were paid by the Unsatisfied Judgment Fund for personal injuries received in an automobile accident."
The appellant has specified it as error to grant an order in this case ordering the State Treasurer of the State of North Dakota to pay from the Unsatisfied Judgment Fund the hospital and medical care expended by the plaintiff for his daughter in the amount of $987.29, which was included in the plaintiff's judgment for special damages. The State Treasurer of the State of North Dakota had been ordered to pay the sum of $5,000, plus $24.50 costs, for the said daughter's bodily injury. Such combined *307 payments would exceed the limitation of $5,000, plus costs, for the bodily injury of one person in one accident as provided in Section 39-1707 of the 1957 Supplement to the North Dakota Revised Code of 1943.
Thus we have but one question to determine and that is whether or not the limitation provided in Section 39-1707 of the 1957 Supplement to the North Dakota Revised Code of 1943 is applicable when there are two judgments as a result of bodily injury to one person in one accident and the judgments run in favor of two parties, and the total of all judgments resulting from the accident, exclusive of costs, does not exceed $10,000. To state the question more simply, does the statute limit the payment allowable from the Unsatisfied Judgment Fund for bodily injury to one person in one accident to the sum of $5,000, exclusive of costs, when two judgments are obtainedone in favor of the injured person for the full amount of the limitation, plus costs, and the other in favor of one responsible for the injured person's care covering the medical expenses incurred as a result of the bodily injury paid by the person so responsible?
The statute, Section 39-1707 of the 1957 Supplement to the North Dakota Revised Code of 1943, provides:
"39-1707. Limitation On Amount Payable From Fund. No order shall be made by the court directing the payment of more than $5,000.00, exclusive of costs, in the case of a judgment resulting from bodily injury to, or the death of, one person in one accident, nor, subject to such limit of $5,000.00 for each person so injured or killed in one accident, shall an order be made directing the payment of judgments for more than $10,000.00, exclusive of costs, in cases arising out of one accident. In cases where the judgment creditor has effected the collection of a part of his judgment from any source, the amount authorized to be paid from such fund shall be the difference between the amount of the judgment, provided that it does not exceed $5,000.00, and the amount realized thereon."
The respondent argues that the particular phraseology that is determinative in his view is "in the case of a judgment." In this case there were three judgments, only two of which are involved in this appeal. One of these is in favor of the daughter for personal injuries in the maximum amount allowable and the other in favor of the respondent, the father, for, among other things, medical and hospital care for his daughter which he was individually required to pay as a result of the accident, and which amount he was obligated to pay because of his relationship and the minority of his daughter. This was a necessary service brought about by the bodily injuries sustained by the daughter at the fault of the defendant, Verdell Schmidt.
The judgment, which the plaintiff obtained, unquestionably was in part "resulting from bodily injury to * * * one person in one accident," and in the plain language of the statute, the plaintiff is entitled to have recourse to the fund in respect to those damages. It is at this point that the problem arises in the case because the daughter, who was the person injured, on a judgment rendered in her favor has already collected the maximum allowable of $5,000, plus costs, for her "bodily injury to * * * one person in one accident, * * *"
The plaintiff, as the father of the minor injured daughter, being responsible for her medical care and services resulting from injuries sustained in the accident, was also injured to the extent that it was necessary that he pay out money for medical care and services for his daughter. The damage to the father was occasioned by the motor vehicle accident and the daughter's resulting injuries. The father is entitled to have paid to him, as a part of his damage, the amount awarded for her medical care and services. There is no challenge as to the correctness of the judgment. The question *308 is whether or not the court may order the amount in question paid from the Unsatisfied Judgment Fund in view of the limitations statute cited above.
We view this order as being improper and contrary to the terms of the statute. The statute provides in part:
"No order shall be made by the court directing the payment of more than $5,000.00, exclusive of costs, in the case of a judgment resulting from bodily injury to * * * one person in one accident, nor * * * shall an order be made directing the payment of judgments for more than $10,000.00, exclusive of costs, in cases arising out of one accident."
"* * * subject to such limit of $5,000.00 for each person so injured or killed in one accident, * * *" (The order of the clauses in the statute was altered for clarity.)
Thus the clear intent of the statute is to limit the amount of recovery from the fund to $5,000 for each person injured in one accident. The word "injured" has reference to the words "bodily injury." The clause "subject to such limit of $5,000.00 for each person so injured * * * in one accident" clarifies a "judgment resulting from bodily injury." In view of the clarity of this language, no reference need be made to definition of terms or words from the dictionary, as the legislature has made its meaning clear in context. Therefore, the $5,000 limitation is applicable, even though the claims of the plaintiff and his daughter are both properly deemed compensable out of the fund and might ordinarily be prorated. However, no appeal having been taken by the plaintiff, as guardian ad litem of his daughter, from the order allowing payment of the full limit of $5,000, plus costs, and the limit provided by the statute having already been paid, the order in this case must be modified to eliminate therefrom the plaintiff's claim of $987.29 for medical care and services for his daughter.
Similar results were arrived at in several cases in other jurisdictions in construing similar unsatisfied judgment statutes. Some of these are: Jones v. Williams, 53 N.J.Super. 16, 146 A.2d 508; Brady & Brady v. Ferrill (1954), 2 D.L.R. 253, O. W.N. 95, decided by the Ontario High Court. (The North Dakota Unsatisfied Judgment Law is patterned after Canadian Province Law.) Hopkins v. White (1950), 4 D.L.R. 679, O.W.N. 372; Klebanoff v. Price (1949), 2 D.L.R. 575, O.W.N. 130.
It is ordered that the case be returned to the District Court for modification of its order directing payment to plaintiff of his judgment from the Unsatisfied Judgment Fund in accordance with this opinion.
SATHRE, C. J., and BURKE, STRUTZ and MORRIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601015/ | 391 So.2d 1378 (1980)
Alvin LASSEN
v.
Carlos OTALVARO and Sonia Otalvaro.
No. 11450.
Court of Appeal of Louisiana, Fourth Circuit.
December 9, 1980.
Rehearing Denied January 19, 1981.
*1379 Jerald N. Andry, Gilbert V. Andry, III, New Orleans, for plaintiff-appellant.
Juan A. Velasco, New Orleans, for defendants-appellees.
Before BOUTALL, SCHOTT and CHEHARDY, JJ.
CHEHARDY, Judge.
Plaintiff, Alvin Lassen, appeals a trial court judgment in his favor and against the defendants, Carlos Otalvaro and Sonia Otalvaro, in solido, in the sum of $1,150 together with legal interest thereon from date of judicial demand until paid and for all costs of the proceedings. The reconventional demand of the defendants was also dismissed at their costs.
Lassen is the owner of a New Orleans residence located at 6220 and 6222 South Claiborne Avenue, which he leased to the defendants for a 24-month period, beginning on July 1, 1977 and ending on June 20, 1979. Monthly rental was $575, payable in advance on the first day of each month.
On June 2, 1978, the plaintiff-lessor filed suit for breach of contract, claiming the defendants-lessees had failed to pay the rent for the months of May and June. On June 12, 1978, the plaintiff filed a rule for possession, asserting that he had caused a 5-day notice to vacate to be served on the defendants for nonpayment of rent, and that they had failed to comply.
Judgment on the rule was rendered on June 23, 1978, and the defendants were ordered to vacate the subject premises by 12 noon, Thursday, June 29, 1978.
On July 8, 1978, plaintiff filed a supplemental and amending petition alleging that defendants were liable for the rent at the rate of $575 per month for the months of March, April and May, and June 1 through June 3. In addition, the plaintiff claimed liquidated damages in accordance with the lease contract for failure to deliver possession when required to do so on June 3, 1978, and for damages caused to the property during defendants' occupancy.
At the trial on the merits of the main demand it was established the complaints made by lessees included that the house was too hot due to a skylight in the living room-dining room area; the exterior paint was peeling; and there were roaches on the property. In response, Mrs. Lassen testified she had the skylight covered, had the exterior paint repaired, and referred Mrs. Otalvaro to a pest control service regarding the roaches. She added she had a fence installed around the property at Mrs. Otalvaro's request and paid a gardener to cut the grass during the warm weather months. Additionally, Mrs. Lassen explained she had a repairman check some of the heaters in the house; however, he discovered the Otalvaros had not had the gas connected.
Mrs. Otalvaro testified she, her husband and six children slept downstairs in the house in the winter because the upstairs was too hot; the downstairs of the house in winter was too cold because of drafts around the doors; one bathroom was without ventilation (a problem that was eventually remedied by Mrs. Lassen); there were holes in the kitchen; the second paint job started to peel; inadequate wiring in the house precluded the use of portable heaters, and the house shook due to the passage of vehicles on South Claiborne Avenue.
One of the defendants' exhibits was a letter dated May 1, 1978, that Mrs. Otalvaro testified she mailed to Mrs. Lassen reiterating what she considered the problems in the house and offering to terminate the lease providing Mrs. Lassen would compensate the defendants for added expenses, inconvenience and damages. Mrs. Lassen, however, testified she never received the letter, and it was established the address on the letter was incorrect and differed from her address as listed on the lease.
Although the defendants were able to show the trial court they had paid rent for the months of March and April of 1978, they were unable to contravene the plaintiff's records and establish that any payment was made for the months of January, February, May and June of 1978.
*1380 The defendants testified they actually moved from the premises, in response to the district court's order, on June 30, 1978.
The lease which was executed between the parties states in part:
"Lessor warrants that the leased premises are in good condition except as otherwise stipulated herein. Lessee accepts them in such condition and agrees to keep them in such condition during the term of the lease at his expense and to return them to Lessor in the same condition at the termination of the lease, normal decay, wear and tear excepted.
"Lessor agrees to deliver the premises broom clean and free from trash at the beginning of the lease and Lessee agrees to return same in like condition at the termination of the lease.
"No repairs shall be due Lessee by Lessor except to the roof and such as may be rendered necessary by fire or other casualty, not occasioned by Lessee's fault or negligence. Lessee agrees to report in writing to Lessor any damage to the leased premises within twenty-four hours after its happening, and upon his failure to do so, Lessee shall be bound to repair any consequent or resulting damage."
In giving reasons for his decision the district court judge stated:
"The Court was impressed with the testimony of the defendants, Carlos Otalvaro and Sonia Otalvaro, with reference to the defective condition of the house. The plaintiff had notice of the detailed complaints.
"However, non-payment of rent is not the remedy the defendants should have sought. Rather, after the plaintiff had been given notice of defects and a reasonable time for repairs had passed, the defendants should have had the repairs made and charged the cost of such to the plaintiff.
"The house did have some utility for the defendants. Four months of rent were not paid, namely, January, February, May and June.
"The Court is of the opinion that the defendants owe the plaintiff a reasonable sum for the occupancy and use of the premises. The Court is of the further opinion that one-half of the amount due, i. e., $1150.00, is reasonable."
We cannot agree. Concerning the obligations and rights of lessees and lessors, the applicable codal articles state:
"The lessor is bound from the very nature of the contract, and without any clause to that effect:
1. To deliver the thing leased to the lessee.
2. To maintain the thing in a condition such as to serve for the use for which it is hired.
3. To cause the lessee to be in a peaceable possession of the thing during the continuance of the lease." LSA-C.C. art. 2692.
"The lessor is bound to deliver the thing in good condition, and free from any repairs. He ought to make, during the continuance of the lease, all the repairs which may accidentally become necessary; except those which the tenant is bound to make, as hereafter directed." LSA-C.C. art. 2693.
"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 neglect 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.
This court, in the factually similar case of Bruno v. Louisiana School Supply Company, Inc., 274 So.2d 710 (La.App. 4th Cir. 1973), stated at pages 711-712:
"LSA-C.C. art. 2712 clearly provides that `the lessee may be expelled from the property if he fails to pay the rent when it becomes due.' Our Supreme Court has decreed that the failure of a lessor to accomplish necessary repairs is not justification for the lessee's refusal to pay rents when due. Mullen v. Kerlec, 115 La. 783, 40 So. 46 (1905).
*1381 "Rather, there are two remedies available to the aggrieved lessee. Under LSA-C.C. art. 2694 if, after being put on notice, the lessor refuses or neglects to make repairs, ` * * * 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. Alternatively, the lessee may sue for cancellation of lease on the authority of LSA-C.C. art. 2729. The jurisprudence has consistently recognized these courses of action which have recently been reaffirmed in Reed v. Classified Parking System, 232 So.2d 103 (La.App. 2d Cir. 1970).
"In the intent case, LASSCO withheld rents for some seven months without formally putting Bruno on notice or attempting to procure the alleged necessary repairs itself. It therefore follows that the failure of the lessee to pay the rental or to avail itself of the rights granted by LSA-C.C. arts. 2694 or 2729 constituted a breach of the lease. Under the codal provisions and jurisprudence cited above, the judgments of eviction and for delinquent rental were clearly correct."
In the present case, as in Bruno, supra, the defendants-lessees claim a remedy that the law does not afford them, since they neither sued for dissolution of the lease nor caused any alleged necessary repairs to be made, deducting the price from the rent due. Accordingly, this court must award the plaintiff the total amount of delinquent rental that was due.
The subject lease also states:
"In case an Attorney be employed to protect any right of Lessor or Lessee arising under this lease, the party whose actions or inactions necessitate such employment shall pay additionally a reasonable attorney's fee."
Plaintiff should therefore be awarded reasonable attorney's fees.
Regarding liquidated damages claimed by the plaintiff for defendants' failure to deliver possession of the premises at the termination of the lease, we note that document's following provision:
"At the expiration of this lease or at its termination for other causes, Lessee is to immediately surrender possession by actual delivery of all keys to Lessor. Should Lessee fail to deliver such possession, he consents to pay as liquidated damages five times the rent per day for each day of his failure to do so, with attorney's fees and all costs."
Since the defendants were ordered by the district court to vacate the premises by noon on June 29, 1978, and the Otalvaros, by their own admission, did not abandon the house until the next day, June 30, 1978, this court will award liquidated damages of five times the rent for the additional day of occupancy. As reasonable attorney's fees, we will allow one-third of $2,369, the amount collected.
For the reasons stated above, the trial court decision is amended in favor of the plaintiff, Alvin Lassen, and it is hereby ordered that the defendants, Carlos Otalvaro and Sonia Otalvaro, are recast in judgment in the sum of $2,300 for four months of rent not paid, together with legal interest thereon from the date of judicial demand, $789.66 in attorney's fees; and $69 in liquidated damages due under the terms of the lease for the June 30, 1978 occupancy of the subject premises. In all other respects the judgment of the trial court is affirmed.
AMENDED IN PART; AFFIRMED IN PART; AND RECAST. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601211/ | 391 So. 2d 1217 (1980)
Clydene W. PHILLIPS and George M. Cotton
v.
BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE.
No. 13598.
Court of Appeal of Louisiana, First Circuit.
October 6, 1980.
*1218 Emile C. Rolfs, Baton Rouge, of counsel, for plaintiffs-appellants Clydene W. Phillips et al.
Joseph S. Cage, Jr., Monroe, of counsel, for defendant-appellee Board of Supervisors of Louisiana State University and Agricultural & Mechanical College.
Before COVINGTON, CHIASSON and LEAR, JJ.
CHIASSON, Judge.
Plaintiffs-appellants, Clydene W. Phillips and George M. Cotton, appeal the decision of the trial court denying them a preliminary injunction against defendant-appellee, Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (Board). Appellants seek to enjoin the Board from any further acts in violation of La.R.S. 42:4.1 et seq., commonly referred to as the "Sunshine Law" or "Open Meeting Law". Appellant contends their constitutional rights[1] were violated by the Board and its committees by meeting in illegal executive sessions thus denying appellants the right to observe the deliberations of the Board and of its committees.
The issues are as follows:
(1) At the time of the dispute, did the "Open Meeting Law" apply to the individual committees of the Board under the facts of this case?
*1219 (2) Did the Board go beyond the authorized statutory exemptions when meeting in executive session?
(3) Did the Board take final, binding action while in executive session?
(4) Are appellants entitled to the injunctive relief sought?
Appellants argue that the "Open Meeting Law" applies to the committee meetings when the committees are composed solely of members of the regulated body and when the actions of the committees constitute, in fact, actions of the whole Board.
It is clear that at the time of this dispute La.R.S. 42:5 did not list "committees" as a public body. This section at that time read as follows:
"§ 5A. For the purpose of R.S. 42:4.1 through R.S. 42:10, `meeting' means the official convening of town and city councils, police juries and other governing bodies; school boards and boards of levee and port commissioners; boards of publicly operated utilities; and all state, parish, or municipal boards or authorities with policy making or administrative functions which receive or expend tax funds, the legislature specifically exempted, to discuss or act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power. Such meetings shall be open to the public."
We agree with the trial judge's holding that committee meetings of the Board were not subject to the "Open Meeting Law" for the reasons stated in his Reasons for Judgment which we quote as follows:
"It is clear that committees are not mentioned in this section. In contrast, the original bill, Senate Bill No. 591, defined a public body to include `any board, commission, committee, subcommittee or other subsidiary thereof.' That language was deleted by action of the Conference Committee before final passage of the bill, and the language of section 5, quoted above in full, was substituted in its place. From these legislative actions, the Court concludes that the statute, as it was then written, was not intended to cover committees. In further support of this conclusion, the Court notes that the 1979 amendments to the Open Meetings Law specifically extend its coverage to committees and subcommittees. R.S. 42:4.2[(A)](2). Even assuming that the definition in R.S. 42:5 intended to include committees although not mentioned, the LSU Board committees do not receive or expend tax funds, the seemingly indispensable condition required by the statute for a state board or authority to fall within its scope."
Appellants' argument that the actions of the committees were actions of the full Board is not supported by the record herein. To the contrary, the record affirmatively establishes that all actions were taken by the full Board and the recommendations of the committees were just recommendations, which were always acted upon by the full Board.
Four of the seven meetings complained of by the appellants dealt with committee meetings which, for the reasons previously stated, we will not consider further.
The remaining three meetings of the Board complained of are as follows:
(1) April 14, 1978The Board met in executive session to discuss prosecution of a pending law suit;
(2) July 28, 1978The Board met in executive session to decide the position of Chancellor at the Alexandria campus;
(3) January 26, 1979The Board met in executive session to discuss personnel changes in the athletic department.
The law provided exemptions to the requirement of public meetings as follows:
R.S. 42:6.1:
"A. A public body may hold a meeting closed to the public pursuant to R.S. 42:6 for one or more of the following reasons:
(1) discussion of the character, the professional competence, or physical or mental health of a single individual provided that such individual may require that such discussion be held at an open meeting;
*1220 (2) strategy sessions or negotiations with respect to collective bargaining or litigation, when an open meeting would have a detrimental effect on the bargaining or litigating position of the public body;"
* * * * * *
The meeting of April 14, 1978 falls squarely within the exemption provided for by Section 6.1 A.(2). The July 28, 1978 and January 26, 1979 meetings fall within Section 6.1 A.(1) since the Board discussed the character, the professional competence of the Chancellor of the Alexandria campus and personnel changes in the athletic department.
The record in this case does not support appellants' contentions that the Board went beyond the matters allowed to be exempted and were using the closed meeting to defeat the purposes of the "Open Meeting Law". Nor did the Board take any final, binding action in any of its executive meetings.
Appellants also urge that the Board, in going into executive session, did not state verbatim the language of the statute for its reasons. The Board used the phrase "personnel matters" when it referred to reviewing the qualifications, character and professional competence of an individual before going into executive session. Simply because the language of the statute is not recited verbatim is of no consequence if the intent and spirit of the statute is being carried out.
Appellants further seek to assert violation of another's rights to entitle them to injunctive relief. They claim that Dr. Cleveland's right to have the full Board hear his matter in a public meeting was violated. Appellants cannot assert the rights of another. Dr. Cleveland is not a party to this suit nor was he called as a witness. As the Supreme Court stated in State v. Board of Liquidation, 136 La. 571, 67 So. 370 (1915):
"Wherever an action is brought for a breach of duty imposed by statute, the party bringing it must show that he had an interest in the performance of the duty, and that the duty was imposed for his benefit. But where the duty was created or imposed for the benefit of another, and the advantage to be derived to the party prosecuting, by its performance, is merely incidental and no part of the design of the statute, no such right is created as forms the subject of an action."
Appellants have failed to prove any violation of the "Open Meeting Law" by the Board and are therefore not entitled to injunctive relief.
For these sessions, the judgment of the trial court is affirmed and the case remanded for further proceedings. All costs of the hearing for the preliminary injunction, including this appeal, are taxed against appellants. All other costs are to await the final disposition of this matter on the merits for a declaratory judgment and a permanent injunction.
AFFIRMED AND REMANDED.
NOTES
[1] Louisiana Constitution of 1974, Article 12, Section 3 provides:
"No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601020/ | 1 So.3d 472 (2009)
STATE ex rel. Morris PRICE
v.
STATE of Louisiana.
No. 2008-KH-1801.
Supreme Court of Louisiana.
February 20, 2009.
Rehearing denied.
WEIMER, J., would grant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601021/ | 379 N.W.2d 660 (1986)
STATE of Minnesota, Appellant,
v.
Brian Joseph SCHERMERHORN, Respondent.
No. C4-85-1395.
Court of Appeals of Minnesota.
January 7, 1986.
*661 Hubert H. Humphrey, III, Atty. Gen., St. Paul, William H. Briggs, Attorney for City of Detroit Lakes, Detroit Lakes, for appellant.
Peter W. Cannon, Mahnomen, for respondent.
Considered and decided by POPOVICH, C.J., and RANDALL, and CRIPPEN, JJ., with oral argument waived.
OPINION
RANDALL, Judge.
This is an appeal by the State of a pretrial suppression order and a district court order dismissing the complaint.
FACTS
The relevant facts are as follows: At about 1:35 a.m. on March 31, 1985, State Trooper R.W. Steffen was on patrol in Detroit Lakes. Steffen saw the left wheels of respondent's car cross the center of the roadway. Steffen testified that he saw respondent make a wide left turn. The officer then made a U-turn and followed Schermerhorn.
Steffen said respondent drove close to the right curb instead of in the center, more travelled portion, of the road. Respondent drove into his driveway and Officer Steffen pulled in behind him. He approached Schermerhorn, noticed a strong odor of alcohol on his breath and that he was unsteady on his feet, that his eyes were watery and bloodshot and his speech was slurred. Steffen testified respondent told him he had several beers at a friend's house. The officer then administered a preliminary breath test which Schermerhorn failed.
Respondent was charged with three counts of aggravated D.W.I. in violation of Minn.Stat. § 169.121, subd. 1(a)(d)(e) and subd. 3(a) (1984). At the omnibus hearing the trial court held that respondent's statements to the police officer and the breath test would be suppressed. The court issued a written order that same day (May 16, 1985) determining that the officer did not have articulable suspicion to stop the vehicle.
On June 11, 1985, the defendant moved for dismissal and on June 14, 1985, the State moved for clarification of the May 16 order. These motions were heard on July 15, 1985. The trial court made additional findings and signed an order on July 19 suppressing certain State's evidence which was presented at the May 16 hearing. This order was amended on July 23, 1985, to include a dismissal of the criminal complaint against respondent.
The State appeals.
ISSUES
1. Did the State file a timely appeal?
2. Is an order of dismissal an appealable order?
3. Did the officer have objective, articulable reasons to stop respondent?
4. Is respondent's driveway a constitutionally protected area?
ANALYSIS
Minn.R.Crim.P. 28.04 governs pretrial appeals by prosecutors. Subdivision 1 provides for appeal
in any case, from any pretrial order of the trial court except an order dismissing a complaint for lack of probable cause to believe the defendant has committed an offense.
The procedure on appeal is set out in subdivision 2:
(1) Stay. Upon oral notice that the prosecuting attorney intends to appeal a pretrial order, the trial court shall order a stay of proceedings of five (5) days to allow time to perfect the appeal.
(2) Notice of Appeal. Within five (5) days after entry of the order staying the proceedings, the prosecuting attorney shall file with the clerk of the appellate courts a notice of appeal and a copy of the written request to the court reporter for such transcript of the proceedings as appellant deems necessary.
*662 Under this rule the State has five days to appeal the pretrial order. State v. Wollan, 303 N.W.2d 253 (Minn.1981). After the hearing, the State orally notified the court that it intended to appeal the pretrial order. The court did not stay the proceedings by a written order but ended all proceedings at the time of the notification. However, the court's failure to stay the proceedings did not affect the State's appeal time. The State still retained a full five days to file a notice of appeal if they wished. There was no activity on the case until respondent filed a motion to dismiss on June 11, 1985. Then on June 14, 1985, the State moved for clarification of the May 16 order.
The supreme court has held that if a prosecutor files a good faith motion for clarification or rehearing within the time limit for appeal, it preserves its right to appeal from the original order. Wollan, 303 N.W.2d at 254. Here, the prosecutor moved for reconsideration on June 14. That motion was not within the five days required to preserve the right to appeal.
The State argues that the appeal is timely because the May 16 motion did not technically suppress any evidence but only held that the officer did not have reasonable suspicion to stop respondent. We do not agree. At the beginning of that omnibus hearing the parties agreed that the stop was the issue. The court and attorneys agreed that if the stop was "good" the evidence would be admissible. Implicit in that was the converse, if the stop was invalid, the evidence would be suppressed.
The State further argues that: (1) because respondent did not move for suppression and/or dismissal, he was not entitled either to suppression or to dismissal; (2) the trial court did not order a stay of proceedings; and (3) even if the court's verbal ruling had "critical impact" requirements necessary for appeal, it was not contained in the May 16, 1985, order, and thus the time to appeal was left open until the court finally signed an order formally suppressing the State's evidence and therefore articulating critical impact.
There is no merit to the State's argument that, because respondent did not formally move for suppression, the relief of suppression cannot be granted. As discussed previously, both attorneys and the court agreed at the hearing that if the stop was valid the evidence would be admissible. Appellant must have known that if the stop were found invalid, the evidence would be suppressed, and, if suppression vitiated the State's case, that dismissal would likely follow.
Likewise, the State's theory that no "critical impact" could attach to the court's May 16 verbal order, and thus the time to appeal could not start, is meritless. When a trial judge says from the bench that evidence offered at a pretrial hearing will be suppressed, if the State feels that the suppressed evidence will have a critical impact on the outcome of the case, the State is possessed of enough knowledge to file their appeal. The court's verbal statement that certain evidence would be suppressed was clear enough for the State's attorney to give the requisite oral notice pursuant to Minn.R.Crim.P. 28.04, subd. 2, that the State intended to appeal. The State simply failed to follow through with perfecting that appeal within the five days.
In order to appeal a pretrial decision, the decision must have a critical impact upon the outcome of the trial. State v. Webber, 262 N.W.2d 157, 159 (Minn.1977; State v. Eisenbacher, 368 N.W.2d 369 (Minn.Ct.App.1985). The State contends that it did not believe the May 16 order or the court's verbal determination met the critical impact requirements and therefore was not appealable. Although the trial court's written order only addressed the stop and did not specifically suppress the evidence, the discussion by the court and counsel at the omnibus hearing, coupled with the court's verbal statement that evidence would be suppressed, clearly indicated suppression was the court's intention. The May 16 order was appealable, and that order started the five-day appeal period.
*663 The State attempted to revive its time for appeal by requesting a clarification. When the right of appeal from an appealable order has expired, the right of appeal is not revived by a subsequent order. City of Rochester v. Stevens, 300 Minn. 458, 220 N.W.2d 497 (1974).
Because of our disposition of this case on the issue of timely appeal, we do not address whether the stop was valid or whether respondent's driveway affects the standard for police stops as opposed to stops on public streets.
DECISION
The pretrial appeal was untimely as the five-day appeal period had passed. Appellant's late motion for clarification did not extend the time.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601024/ | 379 N.W.2d 222 (1985)
Robert G. HARRINGER, Respondent,
v.
AA PORTABLE TRUCK & TRAILER REPAIR, INC., Relator, Department of Economic Security, Respondent.
No. C7-85-1634.
Court of Appeals of Minnesota.
December 31, 1985.
Robert G. HARRINGER, pro se.
Ronald G. Black, Elk River, for relator.
Hubert H. Humphrey, III, Atty. Gen., Laura E. Mattson, Sp. Asst. Atty. Gen., St. Paul, for respondent.
*223 Considered and decided by PARKER, P.J., and FORSBERG and NIERENGARTEN, JJ.
OPINION
PARKER, Judge.
Relator AA Portable Truck & Trailer Repair, Inc., seeks review of a determination by the Commissioner of Economic Security that Robert Harringer was discharged for reasons other than misconduct. We affirm.
FACTS
Robert Harringer had been working for AA Portable Truck & Trailer Repair, Inc., for approximately four months when he was discharged. He applied for unemployment compensation, and a claims deputy awarded him benefits, determining that he had not been discharged for proven willful misconduct.
AA appealed, and a hearing was held before a Department referee. Harringer appeared and testified; the president and vice president of AA were also present. The vice president testified that Harringer was discharged "mainly" because he did not perform his work within the average times for jobs, compiled in a book published by Motor Trend. In addition to his slowness, AA was unhappy with Harringer's overall work performance. One incident in particular involved the amount of oil Harringer had put in a truck. The vice president testified that Harringer had filled the truck with an excessive amount of oil; however, Harringer testified that he had been instructed to put too much oil in the truck. Harringer also testified that he had performed his work to the best of his ability.
AA also claimed that Harringer falsified a work report. The vice president testified that Harringer had made a service call which had taken only an hour and 20 minutes but had submitted a work order indicating that he had worked two hours and 15 minutes. Harringer, however, testified that the time he had indicated in his report included time spent loading tools and parts into the truck, as well as travel and service time. He stated that the time indicated on the work order was correct.
The vice president also testified that Harringer had been absent or tardy on several occasions, had exhibited a display of temper in front of a customer, and had taken his uniforms home upon being discharged, although Harringer denied that he had done so.
After the hearing, the referee determined that Harringer had been discharged for poor work performance and for projecting a poor image. The referee noted that Harringer had performed his work to the best of his ability but was unable to measure up to AA's standards.
AA appealed, and a Commissioner's representative affirmed the determination by the referee that Harringer's separation was not due to misconduct. The Commissioner's representative agreed that the incidents involving the excessive amount of oil, Harringer's display of juvenile behavior, and his improper handling of a service call were simply evidence that Harringer did not measure up to AA's requirements.
ISSUE
Did the Commissioner's representative erroneously determine that Harringer was discharged for poor work performance and not for misconduct at a level sufficient to deny him unemployment compensation?
DISCUSSION
Minn.Stat. § 268.09, subd. 1(2) (1984), states that a person is not entitled to receive unemployment compensation benefits if he was "discharged for misconduct." id. (emphasis supplied). This language suggests that an employer who alleges employee misconduct must prove[1] that such conduct was in fact the cause of the employee's dismissal. This court reached a *224 similar conclusion in Foy v. J.E.K. Industries, 352 N.W.2d 123 (Minn.Ct.App.1984) pet. for rev. denied (Minn. Nov. 8, 1984), indicating that an award of unemployment compensation benefits must turn on the actual cause of separation:
Although there is evidence of a 13 percent reduction in Foy's wages, the commissioner's determination that Foy involuntarily terminated his employment due to a wage decrease of 31 percent is unsupported by the record. Rather, the only conclusion which the evidence would reasonably tend to support is that Foy voluntarily terminated his employment because he was dissatisfied with his employer, and because his employer refused to offer him a buy-sell agreement.
The commissioner's decision [awarding benefits to Foy] is reversed.
Id. at 125. Courts from other jurisdictions have expressly held that an employee's misconduct is irrelevant to a determination of unemployment compensation benefits if that conduct was not in fact the reason for the employee's discharge. See, e.g., Hawkins v. Leach, 115 Ohio App. 259, 185 N.E.2d 36 (Ohio Ct.App.1961); Mancini v. Commonwealth, Unemployment Compensation Board of Review, 50 Pa. Commw. 266, 412 A.2d 702 (Pa.Commw.Ct. 1980).
In the present situation, after reviewing the evidence submitted by both parties, both the referee and the Commissioner's representative determined that the actual cause of Harringer's discharge was his poor work performance, which does not constitute misconduct. See Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973). AA does not claim that Harringer's poor work performance should be characterized as misconduct. Rather, AA argues that Harringer was discharged for other reasons in addition to his poor job performance and that the Commissioner's failure to address these other reasons was erroneous.
The record indicates that AA initially claimed Harringer was discharged for poor work performance. In a statement submitted to the Department, the president of AA claimed that Harringer was discharged "for being slow and having a bad attitude and not changing after being warned." In response to a request for wage and separation information, AA stated that Harringer cost the company too much money due to nonchargeable time and that he also falsified a work report.
Although at the hearing AA testified that Harringer was discharged for additional reasons, the Commissioner's representative's determination that Harringer was discharged for poor work performance is supported by AA's initial statements. The scope of appellate review in unemployment compensation cases is limited. The evidence must be viewed in the light most favorable to the Commissioner's findings, White v. Metropolitan Medical Center, 332 N.W.2d 25, 26 (Minn.1983), and the only question for this court is whether the record contains evidence sufficient to sustain those findings. Id. Factual disputes are to be resolved by the Commissioner, Nyberg v. R.N. Cardozo & Brother, Inc., 243 Minn. 361, 364, 67 N.W.2d 821, 823 (1954), and this court cannot reweigh the evidence to determine where the preponderance lies. Id. Because the record in the present case supports the finding that Harringer was discharged for poor work performance, we decline to disturb the Commissioner's decision.
Implicit in the Commissioner's decision that Harringer was discharged for poor work performance is a determination that Harringer was not discharged for the additional reasons claimed by AA.
DECISION
The Commissioner's determination that Harringer was discharged for poor work performance and not for misconduct is affirmed.
Affirmed.
NOTES
[1] An employer has the burden of proving that an employee is disqualified from receiving benefits. Lumpkin v. North Central Airlines, Inc., 296 Minn. 456, 459, 209 N.W.2d 397, 400 (1973). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601025/ | 445 F.Supp. 911 (1978)
TRUMBULL DIVISION, OWENS-CORNING FIBERGLASS CORPORATION, a Delaware Corporation, Plaintiff,
v.
CITY OF MINNEAPOLIS, Defendant.
No. 4-73-Civ. 342.
United States District Court, D. Minnesota, Fourth Division.
February 14, 1978.
*912 Frank A. Dvorak, Mackall, Crounse & Moore, Minneapolis, Minn., for plaintiff.
Edward R. Kenneally, Asst. City Atty., Minneapolis, Minn., for defendant.
MEMORANDUM, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT
LARSON, Senior District Judge.
FINDINGS OF FACT
1. Plaintiff Trumbull Division, Owens-Corning Fiberglass Corporation is a Delaware corporation, with its principal place of business in Chicago, Illinois. Plaintiff has operated an asphalt manufacturing plant in Minneapolis, Minnesota, for over 25 years.
*913 2. Defendant City of Minneapolis is a municipality of the State of Minnesota.
3. Plaintiff's plant is adjacent to the Fry Roofing Company. Both companies were sold to Owens-Corning Fiberglass Corporation in April 1977, but prior to that time were separately owned, had no common directors and operated as separate and independent businesses. Plaintiff furnishes asphalt to most of the roofing manufacturing companies in this area and in a surrounding four State area. When the Fry Roofing Company was in operation, plaintiff also furnished asphalt to Fry.
4. In 1969 the City of Minneapolis passed an ordinance requiring a license to manufacture asphalt. Minneapolis Code Chapter 385, recodified as Minneapolis Code Chapter 269.[1] The City Council is vested with the authority to issue, renew and revoke such licenses.
5. The licensing year runs from December 1 of one year to November 30 of the succeeding year.
6. The City Council has a standing subcommittee that deals with licensing matters, variously called the Committee on Licenses, the Committee on Licenses and Consumer Services, and hereafter referred to as the Committee.
7. In the short license year 1969, the year 1969-70, and the year 1970-71, plaintiff applied for and was granted a license to manufacture asphalt.
8. Plaintiff applied for a license for the year 1971-72. No written objections to the license were filed by any of the officials named in the ordinance as having authority to investigate and object to such licenses. The Supervisor of the Air Pollution Department had filed a written approval.
9. Although the ordinance does not require aldermanic approval of license applications, the application form for asphalt manufacturing contains a signature space for aldermanic approval and the applications are routinely referred to the ward alderman. Plaintiff's application for 1971-72 was not approved by the alderman of the ward in which plaintiff's plant is located.
10. On December 29, 1971, the Committee had before it the license applications of both Fry Roofing and Trumbull. Neighborhood complaints of pollution and odor from the plants were discussed. The Committee was advised that the Trumbull application had all the necessary official approvals. The license was laid over and referred to the Minnesota Pollution Control Agency.
11. The Trumbull application was laid over at various other times during the year and no final action was ever taken on it.
12. Plaintiff applied for a license for the year 1972-73. No written objections to the license were filed by any of the officials named in the ordinance as having authority to investigate and object to such licenses. The Supervisor of the Air Pollution Department had filed a written approval. The application was not approved by the ward alderman.
13. In a meeting of the Committee on June 6, 1973, the Fry and Trumbull applications were again considered at the same time. The Committee voted to lay over a denial of both applications and to issue callins to the applicants. A call-in is a form sent to a license applicant only when its application is in jeopardy to inform him that the Committee will consider the application at a subsequent meeting. Applicants receive no notice of other committee actions such as lay-overs, referrals or postponements.
*914 14. On June 27, 1973, the Committee voted to recommend disapproval of Trumbull's license application to the City Council.
15. On June 29, 1973, the City Council voted to deny Trumbull a license.
16. On July 3, 1973, the manager of the Trumbull plant was arrested for operating the plant without a license.
17. In light of the arrest, Trumbull instituted action in this Court. A preliminary injunction was granted on July 20, 1973, enjoining the City from issuing further tags, complaints, or warrants against Trumbull for operating without a license. Trumbull is still operating under the protection of that Order.
18. The Court specifically found that as of the time the Trumbull license was denied in 1973, pollution and odors existed in the vicinity of plaintiff's plant and had persisted for some time. Memorandum Order and Rule 52 Findings, July 20, 1973.
19. Trumbull worked with the City Attorney, the Minnesota Pollution Control Agency and the Minneapolis Air Pollution Department for two years, attempting to bring its pollution control equipment into compliance with City and State requirements. Substantial improvements were made to the plant.
20. Plaintiff applied for a license for the 1975-76 licensing year. The officials named in the ordinance as having authority to investigate and object to such licenses had filed no written objections to the application or had indicated approval, including the Supervisor of the Air Pollution Department. The application was not approved by the alderman for the ward.
21. On April 7, 1976, the Committee laid over the Trumbull application.
22. On April 28, 1976, the Committee was informed that Trumbull had all the required approvals under the ordinance. The license application was laid over.
23. On May 28, 1976, the Committee laid over the application again and referred it to an Administrative Committee.
24. At the urging of the Administrative Committee, Trumbull made further repairs to parts of its property, paving a driveway and straightening a snow fence.
25. The 1975-76 license application was laid over seventeen times. No final action was ever taken on it.
26. Plaintiff applied for a license for the year 1976-77. All of the departments required under the ordinance either approved the application or noted no disapproval, except the Air Pollution Department which disapproved. That department reversed its position within a matter of weeks and approved the application. The application was not approved by the alderman for the ward.
27. The application for 1976-77 was on the Committee agenda at least nine times and was never acted upon.
28. As of the time of trial, June 27-28, 1977, plaintiff had expended over $380,000 since 1968 in upgrading its plant in order to satisfy State and City pollution control standards; $260,000 of that sum has been expended in the last four years. Every piece of equipment that the State required or requested, with the exception of an oil water separator awaiting installation, had been put into the plant. Trumbull has operational permits from the Minnesota Pollution Control Agency for all of its plant equipment.
29. At various Committee meetings over the years, plaintiff was frequently identified by Committee members and witnesses with the Fry Roofing Company. Past and present aldermen for the ward in which Trumbull and Fry are located testified that they thought of the two companies as one problem. The applications of the two were frequently considered at the same time. The Committee was informed that Trumbull has been involved in numerous lawsuits with the City over its license when, in fact, it was Fry that had been litigious, while Trumbull had been a party only to this suit. The failure to treat the companies as separate entities disadvantaged plaintiff, for unlike the apparent intransigence of Fry Roofing, Trumbull's attitude has been one *915 of cooperation with the City and it has made reasonable efforts to comply with the ascertainable standards for receiving a license.
30. Committee meetings are informal, legislative-type hearings. An applicant for a license may not always be aware of when or if the Committee is taking some action on his application; witnesses against an applicant are not sworn; cross-examination is not conducted, although inquiries of witnesses are permitted with varying degrees of liberality; no written findings are made as to the basis for Committee action.
CONCLUSIONS OF LAW
I.
Although the parties have not contested this Court's jurisdiction, the Court has an obligation to inquire into the matter. See Kenosha v. Bruno, 412 U.S. 507, 511, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). The prerequisites for diversity of citizenship exist, since plaintiff's place of incorporation and principal place of business are in States other than Minnesota, see 28 U.S.C. § 1332(c), and the City of Minneapolis is deemed a citizen of this State, see Illinois v. City of Milwaukee, Wisc., 406 U.S. 91, 97, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). Moreover, plaintiff has alleged a deprivation of its constitutional right to due process, which gives rise to Federal question jurisdiction under 28 U.S.C. § 1331, see Kenosha v. Bruno, supra, 412 U.S. at 516, 93 S.Ct. 2222 (Brennan, J., concurring); Amen v. City of Dearborn, 532 F.2d 554, 559 (6th Cir. 1976). The $10,000 amount in controversy requirement is satisfied, for deprivation of a license to operate its business could cause plaintiff monetary losses in at least that amount from lost contracts, damage to its business relationships and loss of the benefits of the $380,000 in capital improvements over the last decade in its plant.
Plaintiff has alleged in count four of its complaint that its Federal right to procedural due process has been denied and in counts one, two and three that the licensing ordinance, or the City's application of it, violates other State and Federal laws as well. The procedural due process claim will be discussed separately from the rest, for different considerations underlie a decision on each.
II.
In Hornsby v. Allen, 326 F.2d 605, rehearing denied, 330 F.2d 55 (5th Cir. 1964), the Fifth Circuit held that a municipality could not deny liquor license applications unless the applicants were afforded the due process safeguard of a trial-type hearing. Since that case Federal courts have faced numerous due process challenges to the actions of municipalities in issuing, denying, renewing, or revoking licenses to operate various types of businesses. See e. g., Block v. Thompson, 472 F.2d 587 (5th Cir. 1973); Atlanta Bowling Center, Inc. v. Allen, 389 F.2d 713 (5th Cir. 1968); Lewis v. Grand Rapids, 356 F.2d 276 (6th Cir.), cert. denied, 385 U.S. 838, 87 S.Ct. 84, 17 L.Ed.2d 71 (1966); Tollett v. Laman, 497 F.2d 1231 (8th Cir.), cert. denied, 419 U.S. 1088, 95 S.Ct. 678, 42 L.Ed.2d 680 (1974), rehearing denied, 420 U.S. 939, 95 S.Ct. 1150, 43 L.Ed.2d 416 (1975); Wallach v. Pagedale, 376 F.2d 671 (8th Cir. 1967); Mosher v. Beirne, 357 F.2d 638 (8th Cir. 1966); Page v. Jackson, 398 F.Supp. 263 (N.D.Ga.1975); Manos v. Green Bay, 372 F.Supp. 40 (E.D.Wis.1974); Oberhelman v. Schultze, 371 F.Supp. 1089 (D.Minn.), aff'd 505 F.2d 736 (8th Cir. 1974); Haaf v. Board of County Commissioners of Benton County, 337 F.Supp. 772 (D.Minn. 1971). There is little disagreement with the general proposition established in Hornsby that municipalities, when they act as licensing bodies, may be subject to the requirements of due process; but courts have differed sharply on what particular requirements may apply in any given situation.[2]*916 Compare Lewis v. Grand Rapids, supra, with Manos v. Green Bay, supra. Although the Supreme Court has not directly addressed this issue, its recent procedural due process decisions in other contexts provide a framework for analysis of plaintiff's claims. See e. g., Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); see generally, K. Davis, Administrative Law in the Seventies, ch. 7 (1976).
As Roth and Perry, supra, make clear, the starting point for analysis is whether a "property" right is at stake. Property interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state lawrules or understandings that secure certain benefits and that support claims of entitlement to such benefits." Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. Plaintiff here has more than a mere expectancy or abstract hope of license renewal; it has a legitimate claim of entitlement to its license. The investment necessary to carry on an asphalt manufacturing business could not be made unless there were an understanding that operations could continue from year to year. A shut-down of the plant would cause plaintiff a "grievous loss." Joint Anti-Facist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring), quoted in Goldberg v. Kelly, supra, 397 U.S. at 263, 90 S.Ct. 1011. Moreover, the City and State, by requesting or requiring plaintiff to expend its funds on proper equipment, have strengthened the natural assumption that once compliance had been achieved, a license would surely be forthcoming. It requires no extended discussion to conclude that the rules defining plaintiff's interest in its license do, as a matter of social and economic reality, create a property right. See Manos v. City of Green Bay, supra; Page v. Jackson, supra.
The second step of the analysis is to determine what process is due in light of the importance of the interest at stake. It is axiomatic that due process is a flexible concept and that the particular procedural safeguards that may be required in any given situation vary with the governmental function involved and the nature of the rights affected. Goldberg v. Kelly, supra, 397 U.S. at 263, 90 S.Ct. 1011. Federal courts have differed on what protections may be necessary in municipal licensing situations. Compare Manos v. Green Bay, supra, with Page v. Jackson, supra. In some instances, notice and a chance to speak have been deemed sufficient. See Lewis v. Grand Rapids, supra. Hornsby v. Allen, supra, on the other hand, mandated a full trial-type hearing. This Court is also persuaded that more than notice and a chance to speak must be provided, for this case vividly illustrates that informal hearings may be insufficient to protect the interests at stake. Plaintiff was often identified with another company by witnesses and Committee members; plaintiff rarely knew in advance what particular charges it would have to meet; some charges were unsubstantiated; since 1975, plaintiff's application has been delayed repeatedly by the Committee and never acted upon by the Council; plaintiff was given no formal statement of the reasons for the inaction, and hence, even after expending substantial sums to satisfy the City, plaintiff could not tell precisely what more it had to do in order to qualify for a license. Although the Court has due regard for the exigencies of city management and the importance of flexibility and administrative discretion, a licensing process subject to so many irregularities is fundamentally unfair. It both jeopardizes the property owner's rights and ill serves the public, for where license denials *917 are based on unstated reasons or unsubstantiated evidence, responsible businesses can only be discouraged from trying to work within a community and respond to the public's legitimate needs.
Although the City has not addressed itself to this point, the only "two arguable factors suggesting the foregoing of an adversary-type hearing [are] cost and inconvenience." Misurelli v. Racine, 346 F.Supp. 43, 48 (E.D.Wis.1972), overruled on other grounds, Kenosha v. Bruno, supra. While these factors are not insignificant, neither outweighs plaintiff's interest in being fairly treated where so substantial a property right is at stake. There are methods by which the City can recoup its costs[3] and while an adversary hearing may be slightly more inconvenient, where issues of adjudicative fact are in dispute it is the most effective method of discovering all of the facts and making fully informed decisions.
In order to comply with procedural due process requirements, the City must institute the following safeguards when it acts to revoke,[4] deny, or refuse to reissue licenses under Minneapolis Code Ch. 269:
1. Timely notice of a renewal or revocation hearing must be given and the reasons upon which possible denial may be based must be stated in the notice. The applicant must be afforded adequate time to investigate the charges and prepare its defense.
2. At the hearing, the applicant must be given the opportunity to respond to the charges against it and present evidence on its own behalf.
3. The applicant must have the chance to present evidence through witnesses who are under oath, and to confront and cross-examine opposing witnesses under oath.
4. The hearing body must provide a written statement of reasons for the license denial and those reasons must be based on evidence adduced at the hearing.
A few other points should be clarified. Plaintiff has argued that a trial-type hearing must be held by the City Council itself, citing Shaw v. Hospital Authority of Cobb County, 507 F.2d 625 (5th Cir. 1975). It is sufficient to note that the case upon which plaintiff relies is readily distinguishable from the case at hand[5] and that such a requirement is far too impractical in this context. So long as the Council's final decision is based upon the record, the Council may delegate to a committee the task of holding hearings, developing the evidence, and making recommendations. See e. g., Sosa v. Board of Managers of Val Verde Memorial Hospital, 437 F.2d 173, 177 (5th Cir. 1971).
Plaintiff has also argued that holding non-adversary "legislative" type hearings preceding the hearings at which denial actually occurs is a due process abuse. This point is wholly without merit, as has been *918 succinctly stated by another court in an almost identical context:
"What we have said today should not be taken as a condemnation of legislative hearings. As a preliminary step in the licensing procedure, they may well be perfectly proper. In the instant cases, due process was not violated by holding a legislative hearing, but rather due process was violated by omitting an adversary-type hearing. What we hold then is that if legislative hearings are employed in a licensing procedure, then, there must be interposed between the drawing up of charges and the city council vote an opportunity for the applicant to respond as set forth in this opinion." Misurelli v. Racine, supra, 346 F.Supp. at 50 n.26.
This Court, too, holds that legislative hearings on plaintiff's license may be held, but an adversary hearing must precede a final decision to deny the license.
Finally, plaintiff has asserted that the continued lay-overs of its license application by the Committee and the consequent failure of the Council to act are in and of themselves a due process abuse. Obviously the City could not be permitted to repeatedly postpone action on the plaintiff's license and then attempt to penalize plaintiff for operating without one. But the City did not do so in this case, and the Court assumes that the defendant views delays, when caused solely by the City, as a grant of permission to operate until the City acts on the application one way or the other.[6] In order to ensure that harm from further delays is minimized, however, and in light of the evidence that plaintiff's operations pose no present danger to the public welfare, the Court will order that the injunction of July 20, 1973, remain in effect until the City Council acts on plaintiff's application for the present licensing year in accordance with the procedures set out above.[7] Plaintiff must, of course, take steps to properly apply for a current license, if it has not already done so.
III.
Plaintiff has raised a number of other questions that present mixed issues of State law and Federal constitutional claims. In count one it asserts that the standards for issuing a license under Chapter 269 are vague and/or arbitrarily applied. In count two it asserts that its property was taken for the public benefit without just compensation. In count three it asserts that the ordinance has been misinterpreted as a matter of State law. Plaintiff also argued that requiring or permitting aldermanic approval of its license application violates State law and the Federal constitution.
Since plaintiff has been granted adequate relief to protect its rights in the immediate future, however, the Court will decline to grant further relief in the nature of a declaratory judgment on these issues. All relate to matters of substance, rather than procedure, for they involve the grounds upon which a license may properly be denied and require a decision on State law before possible Federal constitutional questions can be reached. Yet some of the questions argued have not been sharply presented; the manner in which the City interprets or applies the ordinance, for example, will be more suited to judicial review if and when plaintiff's application is *919 actually denied with stated charges, written justifications, and a clear record of the evidence upon which the decision was based.
More important, the same considerations of Federal-State comity that underlie the abstention doctrine suggest that where uncertain questions of State law predominate, as they do here, a Federal court may properly decline to grant declaratory relief:
"`Where resolution of the federal constitutional questions is dependent upon, or may be materially altered by, the determination of an uncertain issue of state law, abstention may be proper in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law and premature constitutional adjudication.'" Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 511, 92 S.Ct. 1749, 1757, 32 L.Ed.2d 257 (1972) (quoting Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965)).
As in Fry Roofing Co. v. City of Minneapolis, aff'd 551 F.2d 200 (8th Cir. 1977), the Court urges the parties, should it become necessary, "to submit any judicial review of future administrative action to the State courts, which are better equipped to deal with the questions of State law involved."
The Court finds, in the exercise of its discretion, that it is appropriate to decline to decide the issues plaintiff has raised in counts one, two and three of its complaint and to dismiss that portion of the complaint. Cf. Independent Tape Merchants Assn. v. Creamer, 346 F.Supp. 456, 464 (M.D.Pa.1972) (appropriateness of dismissal in abstention case).
ORDER FOR JUDGMENT
IT IS ORDERED THAT:
1. The injunction of this Court entered on July 20, 1973, shall remain in full force and effect until the City Council acts upon plaintiff's application for a license to operate its plant, at which time it shall automatically dissolve.
2. Defendant City of Minneapolis is further enjoined from denying, refusing to reissue, or revoking licenses under the provisions of Minneapolis Code Ch. 269 unless and until the procedural safeguards set out in this opinion are established.
3. Counts one, two and three of plaintiff's complaint are dismissed.
Let judgment be entered accordingly.
NOTES
[1] Some minor and relatively unimportant changes were made in the ordinance when it was recodified. It presently reads, in pertinent part:
"Application for such license shall be made to the city council on forms supplied by it, which shall include a statement of the address where such manufacturing is to be conducted. Before the issuance of any such license, the director of inspections, the health inspector and the chief of the fire department shall be notified of the application therefor. If any such official, after proper investigation shall file objections, the city council, after a hearing thereon, may refuse for cause to grant or reissue such license." Minneapolis Code Ch. 269.20.
[2] The Eighth Circuit has not decided a case directly on point. In Wallach v. Pagedale, supra, for example, a complaint alleging that a city licensing ordinance violated plaintiff's constitutional rights was dismissed on jurisdictional grounds. In Tollett v. Laman, supra, however, plaintiff was the holder of a trailer park license which was revoked without notice. The Eighth Circuit noted its agreement with the district court that notice and a hearing was required before revocation could occur, 497 F.2d at 1233 n.3, citing Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), but in the context of the case did not need to reach the issue of what type of hearing had to be held.
[3] The court in Misurelli v. Racine, supra, 346 F.Supp. at 48, for example, suggested that the city could tax hearing costs to the losing party and at least partially recoup its expenses.
[4] A "revocation" has not technically occurred in this case; but where a licensee has run its business for a number of years and the business is one that cannot be readily moved or modified, the difference between a refusal to renew a license and a revocation is slight; it would be somewhat empty relief to require the City to grant procedural protections in a renewal hearing but permit it to revoke without those safeguards.
Although the City has not argued this point, there is perhaps one respect in which a revocation hearing may be different, from the City's point of view, from a renewal hearing: abbreviated decisionmaking might be necessary to close down a business in an emergency. But the Court need not decide what due process rights might properly be sacrificed in an emergency in order to hold that they must be accorded in the ordinary revocation or renewal hearing.
[5] In Shaw, the Fifth Circuit held that a podiatrist seeking staff privileges at a hospital had to be given a hearing in front of two separate governing bodies. But the two bodies had different by-laws and were separate entities; approval of Shaw's application by one group could still result in his being denied privileges by the other on the basis of its own rules. In short, the question there was not whether a superior body could delegate authority to a subordinate body, but whether a hearing had to be held in front of each board that was empowered to independently grant or deny the privileges.
[6] The City did not, for example, penalize plaintiff for operating without a license in the 1971-72 year, when the application was repeatedly laid over and never acted upon; the only penalties defendant attempted to impose occurred after the actual denial of a license by the Council in 1973. The City has, of course, been enjoined from penalizing plaintiff since that time, so its present view of the effect of delay is somewhat problematic. Keeping the injunction in force should simply avoid any future problems in this respect.
[7] Courts are generally "ill-suited to review the order in which an agency conducts its business." Environmental Defense Fund, Inc. v. Hardin, 38 U.S.App.D.C. 391, 397, 428 F.2d 1093, 1099 (1970). In this case, the Court is unapprised of what matters may occupy the Council's attention and is therefore reluctant to order the City to act on plaintiff's 1977-78 license within a set amount of time. But it should be self-evident that this matter should be handled as expeditiously as possible; plaintiff has been deprived of having a Council vote on its application far too long. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601028/ | 379 N.W.2d 6 (1985)
COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF THE IOWA STATE BAR ASSOCIATION, Complainant,
v.
Karl J. HORN, Respondent.
No. 85-1242.
Supreme Court of Iowa.
December 18, 1985.
Comito & Capps, Des Moines, for complainant.
*7 Karl J. Horn, Charles City, pro se.
Considered by REYNOLDSON, C.J., and McCORMICK, McGIVERIN, LARSON, and SCHULTZ, JJ.
SCHULTZ, Justice.
The Committee on Professional Ethics and Conduct of the Iowa State Bar Association (committee) initiated this proceeding before the Grievance Commission, charging respondent Karl J. Horn in two divisions. The first claim alleges respondent failed to respond to notices sent by the committee prior to its filing a formal complaint. The second claim alleges that the respondent neglected to timely file, as executor of an estate, for an investment credit carryback, made misrepresentations to his client and another lawyer regarding the same, and failed to timely transfer stock certificates in an estate proceeding.
Respondent appeared in person and testified before the Grievance Commission. The Grievance Commission filed a report incorporating its findings of fact, conclusions of law, and recommendations. The Commission determined that respondent violated disciplinary rules as to the second claim and recommended that his license to practice law be suspended for a period of three months. Respondent took no appeal from the report. See Iowa Sup.Ct.R. 118.10,.11. In this situation we review the record de novo and decide the matter. Iowa Sup.Ct.R. 118.10. We are not bound by the Commission's findings or recommendations, but give respectful consideration to them. Committee on Professional Ethics and Conduct v. Freed, 341 N.W.2d 757, 758 (Iowa 1983).
Respondent has been licensed to practice law in this state since 1962. During his first five years of practice he was employed as house counsel for a Charles City corporation. Thereafter, respondent was employed at a Charles City law firm for eight years. Since that time he has been a sole practitioner engaged primarily in a general practice of law.
The alleged ethical violations which initially led to a complaint being filed against the respondent arose from his handling of an estate. A client, who was a friend of respondent, died leaving a substantial estate that included several farming operations. In his will, drafted by respondent, decedent named respondent as his executor. Respondent also served as attorney for the estate. Under the terms of the will, decedent's net estate was left in trust. Decedent designated a daughter, who lived nearby, to act as trustee. Soon after the estate was opened, the daughter became dissatisfied with respondent's handling of the estate and retained her own personal attorney.
When the estate was closed, the daughter's attorney, acting on behalf of his client, filed a complaint with the committee regarding respondent's handling of the estate. The matter was not resolved and this proceeding was instituted before the Grievance Commission. We consider each of the two formal complaints separately.
I. Failure to cooperate. The facts relating to the allegations that respondent failed to cooperate with the committee are not in dispute. When the committee received the letter from the attorney representing decedent's daughter, it notified respondent that an investigation would be made and that there would be a hearing on the matter. A copy of the complaint was enclosed and the committee made the following request: "In the meantime, you are requested to furnish the Committee with a statement responsive to this complaint, which statement may be addressed in my care. Please see Rule 3.3 of the enclosed Rules of Procedure of the Committee."
No response was received from the letter and approximately eight weeks later a second letter was sent to respondent. In pertinent part the letter stated:
This letter constitutes notice under Rule 3.3 of the Rules of Procedure of the Committee on Professional Ethics and Conduct of the Iowa State Bar Association, *8 and you are advised to govern yourself accordingly.
That Rule provides:
"If after thirty days,[1] no such response from respondent has been received, he shall be notified by restricted certified mail that unless he responds thereto within ten days from receipt of notice, complaint may be filed with the Grievance Commission for failure so to respond, and concerning all or any portion of the matter about which complaint was made, and the committee shall proceed therewith thereafter, if no response is received."
Again, respondent failed to respond to the committee's request. The committee alleges that respondent's failure to reply constitutes unethical and unprofessional conduct requiring that disciplinary action be taken.
Respondent admitted that he received the letters from the committee and that he did not respond to such letters. He conceded that the responsible thing to do would have been to respond to such inquiries and that such response probably would have aided the committee in its investigation. However, respondent gave no explanation or excuse for his failure to respond except that "I may have a psychological problem somewhere."
The Grievance Commission's findings of law determined that:
As to the failure to respond to the communications of the Ethics Committee it is quite true that Respondent did so but the Commission is cited to and finds no authority holding the same to constitute grounds for actionable misconduct. The Respondent was certainly foolish in not responding and he gives no explanation for this failure.
In a concurring opinion, one member of the Commission asserted that Rule 3.3 is a rule and not a standard of ethical conduct. He concluded that if failing to comply with Rule 3.3 is to be an ethical violation, it should be set forth as such in the canons of ethics or rules of discipline so that all attorneys would be put on notice.
Whether an attorney commits a separate ethical violation by failing to answer the committee's request for a reply to its complaint, is an issue of first impression in this jurisdiction. Other courts, however, have addressed this issue. The general rule is that a lawyer owes an obligation to cooperate with discipline authorities regardless of whether there is a rule requiring a response. Generally, a failure to respond to an investigation committee's request for an answer to a complaint is deemed a separate act of misconduct subjecting the attorney to discipline. See, e.g., In re Evans, 661 P.2d 171, 174-77 (Alaska 1983) (failure to respond to investigative inquiry constitutes a default under state bar rule and subjects attorney to disciplinary measures); In re Draper, 317 A.2d 106, 108 (Del.Supr.1974) (record of failing to cooperate with the censor committee, an arm of the court, requires severe discipline); Matter of Russell, 424 A.2d 1087, 1088 (D.C.App.1980) (an attorney violates DR 1-102(A)(5) by failing to respond to bar counsel's inquiries); Matter of Kopp, 402 Mich. 74, 77, 259 N.W.2d 559, 560 (1977) (failure to answer request for investigation is violation of procedural rules of grievance board and constitutes misconduct which requires appropriate discipline); Matter of Serstock, 316 N.W.2d 559, 561 (Minn.1982) (failure to respond to the disciplinary investigations is a violation of DR 1-102(A)(1), DR 1-102(A)(5) and DR 1-102(A)(6)); In re Lince, 200 N.W.2d 56, 58-59 (N.D.1972) (failure to submit written answer to a complaint filed by grievance commission, answer interrogatories, and appear before the commission violates rules of disciplinary procedure and merits condemnation even though attorney was found not to have committed the breach of conduct alleged in the underlying complaint); Matter of Treacy, 277 S.C. 514, 290 S.E.2d 240, 241-42 (1982) (failure to respond to complaint and cooperate with investigation is misconduct and reason for sanction); In re Clark, 99 Wash.2d 702, *9 663 P.2d 1339, 1341-42 (1983) (although underlying complaint dismissed, attorney was suspended for violating state bar rule that required attorney to cooperate with the bar association); Matter of Elliott, 83 Wis.2d 904, 907, 266 N.W.2d 430, 431-32 (1978) (failure to cooperate with discipline authorities pursuant to state bar rule is ethical violation subjecting attorney to discipline); cf. In re Geurts, 290 Or. 241, 620 P.2d 1373, 1376 (1980) (noncooperation with discipline review board, by itself, not grounds for ethical violation as rules of professional discipline don't give fair notice of the terms and limits of that obligation).
It is vital to the accused lawyer, the members of the bar, and the general public that a complaint against a lawyer be promptly investigated and evaluated. The Washington court in Clark stated:
Compliance with these [state bar] rules is vital. The practice of law has been a profession of the highest order since its inception and it must continue to be so. Internal investigations and self-discipline are the very heart of a profession, as distinguished from a trade or business. The Bar Association's investigation of a complaint is an integral part of the machinery for handling charges regarding the ethics and conduct of the attorneys admitted to practice before this court. Public confidence in the legal profession, and the deterrence of misconduct, require prompt, complete investigations. The process of investigating complaints depends to a great extent upon an individual attorney's cooperation. Without that cooperation, the Bar Association is deprived of information necessary to determine whether the lawyer should continue to be certified to the public as fit. Obviously, unless attorneys cooperate in the process, the system fails and public confidence in the legal profession is undermined. If the members of our profession do not take the process of internal discipline seriously, we cannot expect the public to do so and the very basis of our professionalism erodes. Accordingly, an attorney who disregards his professional duty to cooperate with the Bar Association must be subject to severe sanctions.
663 P.2d at 1341-42. We agree with this observation. We would add that in our state many attorneys and lay persons freely give their time to help police the legal profession. For their largely thankless efforts, these people do not deserve to be stonewalled.
That is not to say that a lawyer accused of violating professional ethics must cooperate to the extent of losing his fifth amendment rights. Spevack v. Klein, 385 U.S. 511, 514, 87 S.Ct. 625, 627, 17 L.Ed.2d 574, 577 (1967). While an attorney need not incriminate himself, he has an obligation to respond to the committee's request even if it is only to announce that he is exercising his fifth amendment rights.
We hold that in not responding to the committee's requests, respondent violated DR 1-102(A)(5) (engaging in conduct that is prejudicial to the administration of justice) and DR 1-102(A)(6) (engaging in any other conduct, not detailed as misconduct in DR 1-102(A)(1)-(5), that adversely reflects on his fitness to practice law).
II. Misrepresentations and neglect. The Commission found that respondent made misrepresentations to decedent's daughter and her attorney which adversely reflected upon his fitness to practice law in violation of DR 1-102(A)(4) (engaging in conduct that involves dishonesty, fraud, deceit or misrepresentation) and DR 1-102(A)(6) (engaging in any other conduct, not detailed as misconduct in DR 1-102(A)(1)-(5), that adversely reflects on his fitness to practice law). Also, the Commission found that by failing to file for investment credit carryback respondent violated DR 6-101(A)(3) (a lawyer shall not neglect a legal matter entrusted to him). Although other matters were set out in the committee's original complaint, we agree with the Commission that these two issues are the only viable claims.
The estate proceeding from which this complaint originated was quite complicated. Outside the matters that we shall subsequently discuss, the Commission found that *10 the respondent did an exemplary job of disposing of the leases and getting the estate generally handled and timely closed. However, a problem arose when it was discovered that the decedent had failed to take an investment tax credit for the year prior to his death. Respondent did not prepare the decedent's tax returns. However, a tax refund could be obtained by amending the return and claiming an investment credit carryback. Thereafter, the certified public accountant who had completed the original return prepared an amended return and later prepared a second amendment to correct errors he made in preparing the first one. These amended returns were then forwarded to respondent for him to sign and file as executor of decedent's estate. We agree with the Commission's finding that:
Despite efforts ... (by the daughter's attorney), the Respondent did not file the tax refund, did not check to determine whether it had in fact been filed and did in fact fail to get the refund. In addition, Respondent did misrepresent to (the attorney) that he was dealing with the Internal Revenue Service concerning tax audits, and while it is unclear whether the Respondent did or did not meet with representatives of the Internal Revenue Service concerning the case he certainly did not meet with them concerning the refund. It is also correct that the Respondent misled (the attorney) and his client with respect to the submission of documents by promising to submit the documents and not doing so, and as the promises were unfulfilled the representations were misleading.
The refund was to be for $2,789 and was never received because respondent failed to file the amended return before the statute of limitations had run. Thereafter, decedent's daughter sued respondent to recover damages for the amount of the refund if it had been filed timely. Respondent did not challenge the suit and allowed a default judgment to be entered against him. Only after an execution of the judgment was issued against him did respondent enter into a settlement with the decedent's daughter.
We agree with the Grievance Commission's conclusion that as the result of these actions respondent violated DR 1-102(A)(4), DR 1-102(A)(6) and DR 6-101(A)(3). Respondent failed to handle a matter entrusted to him. He misrepresented facts to the decedent's daughter and her lawyer when he indicated that he had timely applied for the investment tax carryback.
III. Discipline. We agree with the Commission's recommendation that respondent's license to practice law in the courts of this state, as that term is defined in Iowa Supreme Court Rule 118.12, be suspended indefinitely with no possibility of reinstatement for three months from the date of the filing of this opinion. We believe that this is the appropriate sanction for the ethical violations detailed in divisions I and II.
LICENSE SUSPENDED.
NOTES
[1] Rule 3.3 was subsequently amended to require a response within 20 days rather than 30 days. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601031/ | 1 So.3d 561 (2008)
STATE of Louisiana, Appellee,
v.
Willie REED, Appellant.
No. 43,780-KA.
Court of Appeal of Louisiana, Second Circuit.
December 3, 2008.
*562 Louisiana Appellate Project, by G. Paul Marx, for Appellant.
Willie Reed, Pro Se.
Paul J. Carmouche, District Attorney, William Jacob Edwards, Tommy J. Johnson, Dhu Thompson, Assistant District Attorneys, for Appellee.
Before BROWN, PEATROSS & MOORE, JJ.
PEATROSS, J.
Defendant, Willie Reed, was convicted of Second Degree Murder in violation of La. R.S. 14:30.1 and was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant now appeals. For the reasons stated herein, the conviction and sentence of Defendant are affirmed.
FACTS
On June 18, 2006, Defendant shot Alicia Hargrove, who had been his girlfriend for two or three months. Ms. Hargrove died from the gunshot wound approximately 15 hours after she was shot.
Ms. Hargrove and Defendant had known each other for some time prior to June 18, 2006, having met through Defendant's sister, Elizabeth Reed, with whom Ms. Hargrove had grown up and gone to school. At the time of her death, Ms. Hargrove was 31 years old and was employed as a respiratory therapist at Willis-Knighton Hospital in Bossier City. She lived with her two daughters, Raven and Ralicia Hargrove, in a house located on Forest Oak in Shreveport.
On Friday, June 16, 2006, Ms. Hargrove's father, Louis Hargrove, came into town for a surprise visit. Mr. Hargrove had recently retired from the Air Force and lived in Germany, so he had not seen his daughter in two or three years. On the morning of June 18, Mr. Hargrove was sleeping on the sofa in Ms. Hargrove's living room. Mr. Hargrove testified that his daughter woke him to tell him that she needed to go to work and that his car was blocking her car. Mr. Hargrove told her where his keys were so that she could move the car. Ms. Hargrove then came back into the house, placed the keys on the table and spoke briefly with her father.
After Ms. Hargrove left the house, Mr. Hargrove fell asleep again, waking to "a loud bang." Mr. Hargrove testified that, at first, he thought the noise had been caused by a firecracker, but then he realized that it had been a firearm. Mr. Hargrove estimated that it took him five to six seconds to run to the carport. He further testified that, when he opened the door, "the smoke [from the gun's discharge] was still up under the carport." Mr. Hargrove saw his daughter to his left, leaning against the wall of the carport. He also saw a black male standing in the carport, but was unable to see whether the man had a gun in his hand. Mr. Hargrove testified that he turned his attention to his daughter and Ms. Hargrove said that she had been shot, at which point the shooter *563 said, "I didn't shoot her, she's faking" or "she's lying." The man then fled the scene.
Mr. Hargrove ran into the house to get the phone to call 911. When he came back out into the carport, Ms. Hargrove had her cell phone and was also dialing 911. She told the 911 operator that "Willie Reed" had shot her.
Corporal Richard McDonald and Sergeant J.C. Williams of the Shreveport Police Department arrived within minutes of receipt of the 911 call. Corporal McDonald testified that Ms. Hargrove was still coherent when he arrived, and told him that she had been arguing with her boyfriend, Defendant, "and he just shot me." Ms. Hargrove also gave a brief description that matched Defendant and provided his address. The Shreveport Fire Department then arrived at the scene and immediately transported Ms. Hargrove to the hospital, where she died late that same evening.
Investigators recovered a .40 caliber shell casing from under the carport in the vicinity of where the shooter was standing when he shot Ms. Hargrove.[1] One corresponding bullet hole was located in the washroom door. The bullet had traveled through a door leading off the carport, had exited the carport and struck an air-conditioning unit in the back yard. Investigators were unable to locate the bullet.
Corporal Skyler VanZandt with the Shreveport Police Department's crime scene investigation unit testified that the irregularity of the bullet hole in the washroom door indicated that the bullet had been "tumbling," or yawing and spinning end over end, as opposed to traveling in a straight flat line. VanZandt explained that a bullet will tumble after hitting an object, such as a human body.
Dr. Frank Peretti, a forensic pathologist, testified that the bullet entry wound indicated that the bullet had not been tumbling at the time it struck Ms. Hargrove and was not a ricochet. Dr. Peretti further testified that the nature of the entry and exit wounds indicated that Ms. Hargrove had been in a "defensive posture" at the time of the shooting. Dr. Peretti opined that the wound to Ms. Hargrove had been "a distant gunshot wound, probably greater than two feet away" and that the trajectory of the bullet through Ms. Hargrove's body was "right to left slightly back to front in an upward direction."
Corporal David Walls, also of the Shreveport Police Department's crime scene investigation unit, testified that the Shreveport Police Department uses a .40 caliber weapon. Corporal Walls stated that, in order to be fired, a .40 caliber weapon's slide has to be cocked back and released, and that there is an internal safety mechanism on the guns used by the police department. Corporal Walls further testified that a .40 caliber weapon could be single fire or semi-automatic, both of which require pulling a hammer back in order to fire the weapon, and "[y]ou have safeties you can place on it." Corporal Walls allowed that it would be possible for a .40 caliber weapon to accidentally discharge. He also noted, however, that "pull pressures" are normally assigned to triggers in order to prevent accidental discharge and that, absent another object having lodged on the trigger (such as a tree branch), an individual would "have to have intent" to pull the trigger of a .40 caliber weapon.[2]
*564 On June 30, 2007, the State gave notice of its intent to introduce evidence of Defendant's prior acts of domestic violence. The trial court held a La. C.E. art. 404(B) hearing on December 4, 2007. The State asserted that Defendant's prior acts demonstrated a pattern of violence toward his girlfriends and that this pattern had culminated in the death of Ms. Hargrove; the State asserted that evidence of Defendant's violent actions was admissible to prove Defendant's intent. The defense argued that the prior acts were not relevant other than to show Defendant's bad character, that Defendant's prior acts had not involved any use of a weapon and that the prejudicial nature of the evidence outweighed its probative value. The court ruled that evidence of Defendant's prior bad acts was admissible to demonstrate absence of mistake or accident.
The State called Christy Stafford as a witness and she testified that she has a child with Defendant. She further testified that, on September 6, 1999, Defendant pushed her, causing her to fall on the ground and bruise her face. Nikisha Joseph, who also has a child with Defendant, testified at trial about a physical altercation with Defendant in which he pulled her hair and prevented her from calling for help. That incident occurred on May 2, 1997. The third woman to testify was Ebony Allen, who also has a child with Defendant. Ms. Allen testified that, on May 18, 2002, while she was pregnant with Defendant's child, he had forced his way into her residence and punched her twice in the face. Ms. Allen further testified that Defendant had made numerous threats to her, including threatening to "shoot [her] house up" after seeing a strange car parked in Ms. Allen's driveway.
Ms. Allen's mother, Janet Scott Roberson, testified as to Ms. Allen's injuries on the evening of May 18, 2002. Ms. Roberson testified that Ms. Allen had been "bloody all over," that there had been a trail of blood in her daughter's residence from the doorway through the living room and the house was "in disarray." A photograph of Ms. Allen taken by Ms. Roberson on the evening of May 18, 2002, was also admitted into evidence. Detective G. Horton, who had responded to the call from Ms. Allen's residence on May 18, 2002, testified that Defendant admitted to forcing his way into Ms. Allen's home and punching her several times.
At the conclusion of the trial, as previously stated, the jury found Defendant guilty of second degree murder. Defendant was subsequently sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant timely moved for a post-verdict judgment of acquittal, moving in the alternative for post-verdict judgment of conviction of a lesser included offense of negligent homicide or manslaughter, on grounds that there was insufficient evidence of intent. The trial court denied the motions and this appeal followed.
DISCUSSION
Assignment of Error Number One (verbatim): The verdict of Guilty in this case is based on reversible error where the State could not establish intent and could not rebut the defendant's claim of accidental discharge of a firearm. The State's argument that characteristics of the weapon create an inference of specific intent were specious and unfounded because there was no weapon found in this case. The State attempted to shift the burden to the defendant by claiming the victim, who only said Reed shot her, did not say it was an accident.
Defendant argues that the evidence does not support a finding of intent. He emphasizes *565 that the gun was never recovered and cites testimony indicating that the gun could have accidentally fired. Defendant also cites testimony indicating that the bullet had an upward trajectory, arguing that this testimony was consistent with his statement that the gun accidentally discharged as he was pulling it from his waistband. Defendant further argues that, with the exception of Reed's testimony,[3] the evidence is silent and, under the law, is insufficient to meet the State's burden.
The State argues that the evidence sufficiently supports a finding of intent under the applicable law. The State relies on the declaration of Ms. Hargrove that Defendant shot her, the fact that Defendant offered no assistance and fled the scene and the evidence that shows that Defendant fired straight at Ms. Hargrove, rather than accidentally firing. The State emphasizes that there was no evidence of a ricochet and that Ms. Hargrove was in a defensive posture when Defendant shot her.
The charge of second degree murder requires "specific intent to kill or to inflict great bodily harm." La. R.S. 14:30.1. Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow from his act or failure to act. La. R.S. 14:30.1. The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. 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. Dooley, 38,763 (La.App.2d Cir.9/22/04), 882 So.2d 731, writ denied, 04-2645 (La.2/18/05), 896 So.2d 30; State v. Brooks, 36,855 (La.App.2d Cir.3/5/03), 839 So.2d 1075, writ denied, 03-0974 (La.11/7/03), 857 So.2d 517.
Intent is a question of fact. State v. Durden, 36,842 (La.App.2d Cir.4/9/03), 842 So.2d 1244, writ denied, 03-1350 (La.11/26/03), 860 So.2d 1131. It is not necessary that intent be proved as a fact; it may be inferred from the circumstances. Id. Flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. Id.
The standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's *566 decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529; State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.
The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Parker, 42,311 (La. App.2d Cir.8/15/07), 963 So.2d 497, writ denied, 07-2053 (La.3/7/08), 977 So.2d 896; State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.
Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La. App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566 and 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). In the absence of internal contradiction or irreconcilable conflict with physical evidence, however, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App.2d Cir.5/9/07), 956 So.2d 769; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/9/06), 941 So.2d 35. Such testimony alone is sufficient even where the state does not introduce medical, scientific or physical evidence to prove the commission of the offense by the defendant. State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678. See also State v. Johnson, 96-0950 (La.App. 4th Cir.8/20/97), 706 So.2d 468, writ denied, 98-0617 (La.7/2/98), 724 So.2d 203, cert. denied, 525 U.S. 1152, 119 S.Ct. 1054, 143 L.Ed.2d 60 (1999).
Again, the evidence established that Ms. Hargrove was in a defensive posture at the time of the shooting and that the bullet did not ricochet off of any other object or surface prior to hitting her, indicating a straight-on shot. Mr. Hargrove testified that Defendant fled the scene immediately, which further allows for an inference of guilt. Testimony was introduced to the effect that .40 caliber weapons generally have a trigger pull weight which greatly reduces the chances of accidental discharge and that, generally, an individual has to have intent to pull the trigger of a.40 caliber weapon. Finally, Ms. Hargrove stated that Defendant "just shot me." This evidence as a whole indicates that the gun was not discharged by accident.
Viewing the evidence in the light most favorable to the prosecution, it the trier of fact could have rationally inferred the specific intent of Defendant from the circumstances of this case and, therefore, could have found that the evidence negated reasonable doubt as to Defendant's intent. Thus, we find that the evidence was sufficient to support the jury's conclusion on intent.
Assignment of Error Number Two (verbatim): The "Other Crimes" evidence introduced in this alleged shooting case was improper because it consisted of arguments between Reed and prior girlfriends, and was not similar to this case. The *567 evidence merely indicated that Reed had fathered three children out of wedlock and battered one of them when she was pregnant. This case did not involve any battery, and there were no claims of prior domestic violence.
Defendant argues that, under the applicable law, evidence of his previous batteries on three former girlfriends was improper because there was no evidence of previous battery against the victim and no evidence of use of a gun against the former girlfriends.
The State counters, submitting that the element of intent was at issue and that Defendant's prior acts were properly admitted. The State argues that Defendant's prior acts need not necessarily be similar in order to be admissible and that these acts demonstrated his propensity for sudden and unjustifiable violence against women.
Generally speaking, evidence pertaining to a defendant's commission of crimes, wrongs or acts, other than the one with which he is currently charged, is inadmissible, when the only purpose of such evidence is to prove the defendant's character and thus his subsequent disposition to break the law. La. C.E. art. 404(B); State v. Harrison, 604 So.2d 583 (La.1992); State v. Humphrey, 412 So.2d 507 (La. 1981); State v. Wright, 94-682 (La.App. 5th Cir.1/18/95), 650 So.2d 291, writ denied, 96-0855 (La.9/20/96), 679 So.2d 430; State v. Cook, 590 So.2d 720 (La.App. 3d Cir.1991); State v. James, 569 So.2d 135 (La.App. 1st Cir.1990); State v. Felix, 556 So.2d 1317 (La.App. 3d Cir.1990). The underlying rationale is that the prejudicial tendency of such evidence, in that the finder of fact is likely to convict because the defendant is a "bad person" regardless of the strength of evidence against him in the case being tried, outweighs the probative value of the evidence. State v. Brown, 318 So.2d 24 (La.1975); State v. Gay, 616 So.2d 1290 (La.App. 2d Cir.1993), writ denied, 624 So.2d 1223 (La.1993); State v. Felix, supra.[4]
Article 404(B) provides an exception to this general rule, allowing that evidence of other crimes or wrongs may be admissible as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. In order for the evidence to be admissible, however, it must be relevant[5] for a purpose other than to depict the accused as having bad character (and, therefore, having acted in accordance therewith in the instant circumstances); the independent question of intent, knowledge, motive or identity must be a contested question at trial; and the prejudicial impact of the evidence must be outweighed by its probative value. State v. Monroe, 364 So.2d 570 (La.1978); State v. Prieur, 277 So.2d 126 (La.1973); State v. Moore, 278 So.2d 781 (La.1972); State v. Taylor, 37,356 (La.App.2d Cir.9/26/03), 855 So.2d 958, writ denied, 03-3141 (La.3/19/04), 869 So.2d 848; State v. Carter, 97-1096 (La.App. 4th Cir.5/20/98), 713 So.2d 796, writ denied, 98-1538 (La.11/6/98), 726 So.2d 920; State v. Pardon, 97-248 (La.App. 5th Cir.10/15/97) 703 So.2d 50, writ denied, 97-2892 (La.3/20/98), 715 So.2d 1207.
*568 In order to comply with due process, the state is required to give pretrial notice of its intent to use evidence of other crimes. State v. Prieur, supra. Prieur also requires that the state show, prior to admission of the evidence, that the evidence is not repetitive or cumulative, serves the purpose for which it is offered and is not pretext for portrayal of the defendant as a person of bad character. Prieur also requires that, at the defendant's request, the jury be charged that the evidence was received for the limited purpose of proving an issue for which other crimes evidence may be admitted, such as intent, and that the defendant cannot be convicted of any charge other than the one named in the indictment or one that is responsive to that charge.
The state must establish that the defendant committed the prior act by a preponderance of the evidence. La. C.E. art. 1104; Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988); State v. Langley, 95-2029 (La.App. 4th Cir.9/4/96), 680 So.2d 717, writ denied, 96-2357 (La.2/7/97), 688 So.2d 498; State v. Crawford, 95-1352 (La.App. 3d Cir.4/3/96), 672 So.2d 197, writ denied, 96-1126 (La.10/4/96), 679 So.2d 1379. The erroneous admission of other crimes evidence is subject to harmless error analysis. State v. Maise, 00-1158 (La.1/15/02), 805 So.2d 1141. The test for determining harmless error is whether the reviewing court may conclude the error was harmless beyond a reasonable doubt, State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000), or "whether the guilty verdict actually rendered in this trial was surely unattributable to the error." Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).
A trial court's decision regarding admissibility of evidence should not be overturned absent a clear abuse of discretion. State v. Mosby, 595 So.2d 1135 (La.1992).
Courts have held that evidence of prior acts of domestic violence is inadmissible when prior acts were not against the victim in the particular charge being brought. State v. Davis, 05-733 (La.App. 5th Cir.2/27/06), 924 So.2d 1096; State v. Morris, 362 So.2d 1379 (La.1978).[6]
On the other hand, in State v. Galliano, 02-2849 (La.1/10/03), 839 So.2d 932, a case cited by the State in the 404(B) hearing in the instant case, the court ruled that evidence of a baby's previous fractured femur, allegedly broken while the defendant pulled the baby from its car seat, was admissible to show lack of mistake or accident in a trial for second degree cruelty to a juvenile where the defendant had shaken the baby and caused serious brain injury. The State also referred to State v. Monroe, supra. In Monroe, the defendant claimed self-defense against a murder charge; the defendant admitted to having killed another person the night before the charged murder, also claiming self-defense. The *569 Monroe court ruled that evidence of the previous murder was admissible to negate the defendant's claim of self-defense.
In the case sub judice, Defendant's intent was a contested question at trial as Defendant asserted that the shooting was accidental. The State provided the requisite Prieur notice. The pertinent inquiry, therefore, concerns the admissibility of evidence of Defendant's prior acts in order to show his intent, or to disprove Defendant's claim of accident. The question is whether Defendant's batteries of previous girlfriends tended to show that he would be more likely to intentionally shoot and kill, or cause great bodily harm to, his current girlfriend, and whether the admission of such evidence would be so prejudicial that the jury would be likely to convict Defendant on the basis of his having bad character generally, rather than the evidence against him in this case in particular.
After a review of the transcript of the testimony in the case sub judice, we find no error in the trial court's admission of the evidence. In any event, we further conclude, however, that any error that may have occurred in admitting this evidence is harmless in light of the other evidence of guilt present in this trial. See Sullivan v. Louisiana, supra.
The testimony as described herein leads us to conclude that the jury's finding of Defendant's guilt is "surely unattributable" to any erroneous admission of the evidence of prior bad acts. As discussed in the context of Defendant's first assignment of error, when viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have weighed the evidence in this case and found that Defendant's guilt had been proven beyond a reasonable doubt, even absent the testimony of the former girlfriends of Defendant. Thus, we find any error on the part of the trial judge in admitting the testimony regarding Defendant's prior acts of violence against former girlfriends to be harmless.
This assignment is without merit.
Pro se issue presented (verbatim): Should a person convicted of second degree murder receive the same life sentence as those convicted of the greater crime of first degree murder?
Defendant presents an argument based on the Eighth Amendment, suggesting that the mandatory life sentence for second degree murder is disproportionate to the crime because it is not tailored to the seriousness of the crime and provides the same length of sentence imposed for the greater offense of first degree murder. The fact that the same penalty is a possibility under two different statutes is not unconstitutional. See Parker v. Cain, 445 F.Supp.2d 685 (E.D.La.2006). In Parker, the court explained:
To the extent that petitioner is contending that the possible penalty for first degree murder is no harsher than the penalty for second degree murder, he is flatly wrong. The sole penalty available for second degree murder is life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La.Rev.Stat. Ann. § 14:30.1(B). Although first degree murder is similarly punishable by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, it is also punishable by death. La.Rev. Stat. Ann. § 14:30(C).
Defendant's argument lacks merit.
CONCLUSION
For the foregoing reasons, the conviction and sentence of Defendant, Willie Reed, are affirmed.
AFFIRMED.
NOTES
[1] No gun was recovered.
[2] Defendant asserted that the shooting was accidental and could have ricocheted off of the floor of the carport.
[3] Defendant did not testify at trial. He did, however, testify before the Grand Jury and the transcript of Defendant's testimony was admitted into evidence at trial without objection. The assistant district attorney who had presented the case to the Grand Jury testified at trial as to the veracity of the transcript and some of the substance of Defendant's testimony, including his contention that the shooting was accidental.
[4] The Supreme Court has defined "unfair prejudice" as the suggestion of an improper basis for a decision, explaining that "[t]he term `unfair prejudice', as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." Old Chief v. U.S., 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).
[5] Relevant evidence is defined by La. C.E. art. 401 as any evidence which tends to render the existence of any fact which is of consequence to an action's outcome either more or less probable than it would be without the evidence.
[6] Courts have admitted evidence of previous domestic violence under the 404(B) exception in instances where the prior acts of violence were against the victim in the particular charge being brought; State v. Welch, 615 So.2d 300 (La.1993), ("[i]n 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 defendant"); and when the prior acts were similar in nature (State v. Rose, 06-0402 (La.2/22/07) 949 So.2d 1236 (evidence that the defendant had brutally stabbed his previous wife to death admitted in trial for murder of the defendant's subsequent wife); State v. Smith, 41,048 (La. App.2d Cir.6/30/06), 935 So.2d 797 (evidence of the defendant's shooting of a prior boyfriend, which shooting the defendant had claimed was accidental, was admissible in trial for stabbing her current boyfriend, where the defendant also claimed that the stabbing was accidental). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/727734/ | 97 F.3d 1458
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Richard A. COLE, M.D., Plaintiffs-Appellants,Cole Family Partners, L.P., a Pennsylvania limitedpartnership, Plaintiff,v.Robert ARMSTRONG; Sanford M. Fisch; Center for AdvanceAsset Protection, a California Corporation,Defendants-Appellees.
No. 96-55248.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 23, 1996.*Decided Sept. 27, 1996.
Before: FLETCHER, BRUNETTI, and NOONAN, Circuit Judges.
MEMORANDUM**
Richard A. Cole appeals pro se the district court's dismissal of his securities action against the defendants for failure to respond to an order to show cause as to why Cole failed to timely serve the defendants with the summons and complaint pursuant to Fed.R.Civ.P. 4(m). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand. We review the district court's dismissal for failure to comply with an order of the court for abuse of discretion. See Swanson v. United States Forest Serv., 87 F.3d 339, 343 (9th Cir.1996).
Cole contends that he never received the district court's order to show cause. The district court's order does not have Cole's correct mailing address. Cole's complaint indicates that he resides in Newburyport, Massachusetts. The district court mailed the order to show cause to Newbury Point, Massachusetts. Given the discrepancy in the mailing address between the order and the complaint, we cannot presume that Cole received a warning that his complaint would be dismissed if he failed to serve the defendants. Accordingly, the district court abused its discretion in dismissing the complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.), cert. denied, 506 U.S. 915 (1992); Malone v. United States Postal Serv., 833 F.2d 128, 132-33 (9th Cir.1987), cert. denied, 488 U.S. 819 (1988).
VACATED AND REMANDED.
*
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1601002/ | 1 So. 3d 171 (2008)
EVERETT
v.
STATE.
No. SC08-2169.
Supreme Court of Florida.
December 30, 2008.
Decision without published opinion. Mand.Dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601004/ | 379 N.W.2d 554 (1985)
The MINNEAPOLIS COMMUNITY DEVELOPMENT AGENCY, Appellant,
v.
Belva SMALLWOOD, Respondent.
No. C6-85-927.
Court of Appeals of Minnesota.
December 24, 1985.
Review Denied February 19, 1986.
Edward R. Pullman, Asst. City Atty., Minneapolis, for appellant.
Dorinda L. Wider, David L. Ramp, Legal Aid Soc., Minneapolis, for respondent.
Heard, considered, and decided by LESLIE, P.J., and WOZNIAK and HUSPENI, JJ.
OPINION
WOZNIAK, Judge.
The Minneapolis Community Development Agency brought an unlawful detainer *555 action against Belva Smallwood. The trial court denied restitution of the premises to MCDA. We reverse.
FACTS
In 1977, Smallwood entered into a written lease to rent a new home under a program of single family scattered site dwellings in south Minneapolis. The program is aimed at providing decent and safe housing to low and moderate income families. Tenants in the program are entitled, after notice, to an informal hearing and a formal hearing (before a five-person hearing panel) before commencement of an unlawful detainer action.
This is the third time MCDA has begun eviction proceedings against Smallwood. In 1979, two years after moving into the new home, MCDA had to go so far as an informal hearing before Smallwood would agree to bring herself into compliance with her lease. Several months after that hearing, it was necessary to send a second eviction notice to Smallwood. MCDA alleged five separate lease violations including damaging the physical and social environment of the neighborhood, improperly disposing of rubbish, and keeping pets which disturbed the neighbors and caused property damage. At her formal hearing, the panel recommended that Smallwood be transferred to another house and that:
Upon moving to a new site she will be placed on probation, whereupon if problems with dog, tall weeds, non-cutting of grass and fire setting occur, she will be evicted immediately without a hearing.
The panel decided in favor of relocation rather than eviction because they felt the neighbors were prejudiced. Ultimately, Smallwood was not transferred because she would not consent to a relocation and her consent was a prerequisite for any transfer. However, it is clear that at least as far back as 1979 Smallwood knew she was in danger of being evicted for numerous lease violations.
Smallwood's behavior did not change. On August 31, 1984, MCDA again found it necessary to evict Smallwood and sent her a lease termination letter. This time, MCDA alleged ten lease violations. The formal hearing panel agreed with MCDA and recommended lease termination based on their finding of the continued violation of nine sections of the lease. MCDA then commenced this unlawful detainer action. The trial court found that Smallwood did not seriously or repeatedly violate the terms of the lease, and denied MCDA its writ of restitution.
ISSUE
Did the trial court err in refusing to issue a writ of restitution?
ANALYSIS
Unlawful detainer is a civil proceeding, and the only issue for determination is whether the facts alleged in the complaint are true. See Minn.Stat. § 566.15 (1984). Our standard of review is whether the trial court's findings of fact are clearly erroneous. Minn.R.Civ.P. 52.01.
At trial, uncontradicted evidence showed that on August 31, when the termination notice was sent, there were numerous lease violations, including interference with the rights of neighbors, the keeping of dogs which terrorized the neighborhood, physical and health hazards on the premises, and serious damage to the home.
In her lease, Smallwood (and other persons on the premises with her consent) agreed to conduct herself in such manner as not to disturb the neighbors' peaceful enjoyment of the neighborhood or downgrade the physical or social environment of the neighborhood. Yet, in the years following MCDA's second eviction attempt, MCDA continued to be bombarded by neighborhood complaints. Neighbors called about loud parties, poor yard upkeep, eggs being thrown at houses, fires being started, unlawful entry in neighbors' homes, cars driving on the yard, firecrackers, a smouldering couch, children spraying paint on the house and walks, neighbors being sworn at, people urinating in Smallwood's yard, neighbors' screens being *556 cut, and vicious dogs terrorizing and attacking the children in the neighborhood, barking and running loose, in and out of the windows of the house.
Over six years of such conduct, in direct violation of the lease, is certainly enough to constitute good cause for eviction.
Smallwood also agreed in her lease not to keep any pets which annoyed or disturbed the neighbors or caused property damage. In 1981, neighbors advised MCDA that Smallwood was keeping five dogs on the premises and that the dogs were causing problems. The dogs also caused damage to the interior of the home and to the lawn, and in 1982 MCDA told Smallwood that she would only be allowed to keep one dog. Smallwood did nothing, and complaints from the neighbors continued. In July 1984, Smallwood was notified by letter that she could have no pets after August 1. Even as late as the formal hearing in December 1984, however, the dogs were still present.
The trial court found that the dogs were removed by the time of the unlawful detainer hearing. This fact, however, cannot excuse the years of direct lease violation.
Smallwood also agreed in her lease to keep the premises in a decent, safe, and sanitary condition. Numerous inspections by MCDA revealed, however, that the grass needed cutting, debris was in the window wells, extenders were off the downspouts, paw prints were on the siding, decorative frames on the front door were missing, there were cobwebs throughout the dwelling, dirty dishes in the sink, a large hole in the wall between the bathroom and bedroom, burners on the stove were black from spills, the bathroom needed cleaning, numerous other holes in doors and walls, three full garbage cans in the basement, an odor of urine and feces, two or three inches of dog hair on the stairs, and about 15-20 piles of dog feces on the basement floor. In addition, years of junk and debris scattered on the premises resulted in many violation reports by the Department of Inspection. The dwelling was also roach infested and exterminations were performed by MCDA in 1983 and twice in 1984. Once again, however, the trial court's findings do not reflect this uncontradicted evidence.
Smallwood has been the only tenant to reside in the dwelling. The dwelling has a bullet hole from someone shooting at the dog, has had the front door lockset repaired three times, has no screening on some windows, has paint scratched off the front pillar, broken tile in the bathroom, floors that need resanding and varnishing, and a door frame torn loose. In short, Smallwood, her family, and her guests have caused severe damage to the premises.
From this review of the record, it is clear that the trial court's findings are erroneous. Apparently the trial court reasoned that current evidence of improvement could be used to negate the undisputed existence of lease violations when the notice was sent on August 31. However, a landlord's right of action for unlawful detainer is complete upon a tenant's violation of a lease condition. See First Minneapolis Trust Co. v. Lancaster Corp., 185 Minn. 121, 131, 240 N.W. 459, 464 (1931). Subsequent remedial action by a tenant cannot nullify a prior lease violation.
Smallwood attempts to excuse the many uncontradicted lease violations by pointing out technical failures of MCDA. Without excusing those failures in any way, it is nonetheless clear that most of the lease violations bear little or no relation to MCDA failures. Further, most of the lease violations, such as the keeping of dogs and the disruption of the tranquility of the neighborhood, bear no relation to Smallwood's handicap (muscular dystrophy).
It is well established that a tenant under various public housing programs possesses no absolute right to public housing and may be evicted for lease violations or other good cause. As Justice Douglas, in his concurring opinion in Thorpe v. Housing Authority, 386 U.S. 670, 87 S. Ct. 1244, 18 L. Ed. 2d 394 (1967), stated:
*557 A tenant may be evicted if it is shown that he is destroying the fixtures, defacing the walls, disturbing other tenants by boisterous conduct and for a number of other reasons which impair the successful operation of the housing project. Evictions for such reasons will completely protect the viability of the housing project without making the tenant a serf who has a home at the pleasure of the manager of the project or the housing authority.
Id. at 679-80, 87 S.Ct. at 1249.
In Ruffin v. Housing Authority, 301 F. Supp. 251 (1969), while holding that tenants are entitled to due process before eviction, the court stated:
There are tenants who violate the minimum requirements of public housing. The Housing Authority is not required to permit lessees to remain in its project if they are dangerous, destructive, or harmful to others. Public housing projects are usually built in urban centers. They accommodate large groups of people. In the interests of other tenants and the public, the managing authorities must impose standards of conduct consistent with substantive principles of justice and the minimum requirements that community living imposes upon civilized human beings. Public housing should not be permitted to become a refuge for those who can not or will not adhere to the minimum rules required for man to live decently in community with his fellow man.
Id. at 254.
To properly evict a tenant from public housing requires that the housing authority show that the tenant violated the lease or for other good cause and provide the tenant with due process. All due process requirements were followed. Smallwood is not being evicted for arbitrary, discriminatory or otherwise manifestly improper reasons, but rather for direct violations of her lease.
DECISION
The trial court's denial of restitution of the premises is reversed where there is uncontradicted evidence of good cause for lease termination.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601001/ | 127 Wis. 2d 292 (1985)
379 N.W.2d 330
Bonnie M. PRONGER, Plaintiff-Appellant,
v.
Jack T. O'DELL, Defendant-Respondent.
No. 84-721.
Court of Appeals of Wisconsin.
Submitted on briefs August 19, 1985.
Decided October 8, 1985.
*293 For the appellant there were briefs by John T. Manning of Wisconsin Rapids.
For the respondent there was a brief by Fred D. Hollenbeck, John R. Orton, and Curran, Curran & Hollenbck, S.C., of Mauston.
Before Cane, P.J., Dean and LaRocque, JJ.
*294 CANE, P. J.
Bonnie Pronger appeals a judgment holding her liable to Jack O'Dell for $14,000 in damages for defamation, malicious prosecution, and abuse of process. Pronger argues that the trial court used the wrong burden of proof for the defamation claim and that O'Dell's counterclaim did not state a cause of action for malicious prosecution or abuse of process. Because we agree with Pronger's arguments, we reverse the judgment and remand the cause for further proceedings.
Pronger was a secretary and later a police officer for the City of Adams from 1977 through 1980. During this time, O'Dell was the chief of police in Adams. Pronger was laid off from her job with the police department. She then filed suit in state court against O'Dell, alleging various incidents of sexual harassment during her employment with the City of Adams. O'Dell denied Pronger's allegations and counterclaimed for defamation, malicious prosecution, and abuse of process. Pronger also filed sexual harassment claims with the Equal Rights Division (ERD) of the Wisconsin Department of Industry, Labor and Human Relations and the federal Equal Employment Opportunity Commission (EEOC). The ERD denied Pronger's claim, and the EEOC declined to proceed with the claim after it was denied by the ERD. Pronger then filed a suit in federal court that was identical to her state court suit. When the state court suit came to trial, Pronger agreed to voluntarily dismiss her complaint so she could proceed with the action in federal court. At trial on O'Dell's counterclaim, the jury returned a verdict in favor of O'Dell on all three claims.
DEFAMATION
Pronger argues that the trial court applied the wrong burden of proof on the defamation claim, since it failed to require O'Dell to show actual malice. Under the constitutional standard set forth in New York Times v. Sullivan, *295 376 U.S. 254 (1964), a public official must prove actual malice in order to recover damages for a defamatory statement relating to his official conduct. Id. at 279.[1] Actual malice means "with knowledge that it was false or with reckless disregard of whether it was false or not. Id. at 279-80.
The trial court found that O'Dell was not a public official by virtue of his position as Adams chief of police. Accordingly, the trial court required Pronger to prove the truth of her allegations and declined to require O'Dell to prove actual malice. This was error. The United States Supreme Court has said that the "public official" designation "applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs." Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). Although there are no Wisconsin cases on point, the public official designation has been applied in other jurisdictions to include law enforcement personnel. See Cibenko v. Worth Publishers, Inc., 510 F. Supp. 761, 765 (N.J. 1981) (transit police officer); Rosales v. City of Eloy, 593 P.2d 688, 689 (Ariz. 1979) (police officer); Angelo v. Brenner, 406 N.E.2d 38, 40 (I11.1980) (city police officer). Because a police chief is a local government employee charged with protecting the public interest in law enforcement, we hold that a chief of police is a public official for purposes of applying the constitutional standard of New York Times. See Coursey v. Greater Niles Township Publishing Corp., 239 N.E.2d 837, 841 (Ill. 1968). Since the trial court erred by applying the wrong burden of proof, we reverse that part of the judgment and remand the cause for further proceedings using the actual malice standard.
*296 MALICIOUS PROSECUTION
[2,3]
Pronger argues that O'Dell's counterclaim for malicious prosecution fails because there was no termination of a prior proceeding in favor of O'Dell. Pronger contends that her voluntary dismissal of the state court claim in order to enable her to proceed in federal court does not constitute a termination in O'Dell's favor. We agree. The trial court found as a matter of law that Pronger instituted a prior judicial proceeding against O'Dell and that the proceedings were terminated in O'Dell's favor. When reviewing decisions on questions of law, we owe no deference to the trial court's conclusion. Maxey v. Redevelopment Authority of the City of Racine, 120 Wis. 2d 13, 18, 353 N.W.2d 812, 815 (Ct. App. 1984). A cause of action for malicious prosecution will lie only when the judicial proceeding upon which the claim is based is begun with malice, without probable cause, and finally ends in failure. Kalso Systemet, Inc. v. Jacobs, 474 F. Supp. 666, 670 (S.D. N.W. 1979). A claim for malicious prosecution cannot be interposed into the very proceedings that form the basis for the claim. Id. See also De La Cruz v. Du Fresne, 512 F. Supp. 1204, 1205 (Nev. 1981); Izard v. Arndt, 483 F. Supp. 261, 264 (E.D. Wis. 1980). We hold that O'Dell's counterclaim for malicious prosecution was premature since it was instituted prior to a favorable termination of the proceedings upon which it was based.[2]
*297 ABUSE OF PROCESS
[4,5]
Pronger argues that O'Dell did not present sufficient evidence to support a claim for abuse of process. Whether the evidence presented at trial is sufficient to support a cause of action is a question of law to be decided de novo by the appellate court. Burg v. Miniature Precision Components, Inc., 111 Wis. 2d 1, 12, 330 N.W.2d 192, 198 (1983). To support a cause of action for abuse of process, the evidence must show there was "a willful act in the use of process not proper in the regular conduct of the proceedings" and an "ulterior motive." Brownsell v. Klawitter, 102 Wis. 2d 108, 115, 306 N.W.2d 41, 45 (1981) (citing Thompson v. Beecham, 72 Wis. 2d 356, 362, 241 N.W.2d 163, 166 (1976)). In order to establish the first of these elements, the evidence must reflect more than the proper use of process with a bad motive. Tower Special Facilities v. Investment Club, 104 Wis. 2d 221, 229, 311 N.W.2d 225, 229 (Ct. App. 1981). It must be alleged and proven that something was done under the process that was not warranted by its terms.[3]Thompson, 72 Wis.2d at 363, 241 N.W.2d at 166. O'Dell's counterclaim alleges that Pronger brought her action "with intent to injure the defendant," and the jury found that Pronger instituted the action "to harass or worry" O'Dell. Since the existence of an improper purpose alone will not support an action for abuse of process, we hold that the counterclaim and the evidence presented in support of it failed as a matter of law to establish a claim for abuse of process. We therefore reverse the trial court's judgment on the claims for malicious *298 prosecution and abuse of process, and remand for further proceedings on the defamation claim.
By the Court.Judgment reversed the cause remanded.
NOTES
[1] See also Simonson v. United Press Int'l, 500 F. Supp 1261, 1268 (E.D. Wis. 1980).
[2] In addition, we note that a voluntary dismissal that does not adjudicate the merits of the claim does not constitute a favorable judicial termination of an action sufficient to support a claim for malicious prosecution. Savage v. Seed, 401 N.E.2d 984, 989 (I11. 1980). Tower Special Facilities v. Investment Club, 104 Wis. 2d 221, 228, 311 N.W.2d 225, 229 (Ct. App. 1981).
[3] The use of a properly issued subpoena for the ulterior purpose of preventing a witness from performing at a public function or the use of a statutory procedure for detaining dangerous persons for the ulterior purpose of preventing a college student from leaving school are examples of abuse of process. See Brownsell, 102 Wis.2d at 115, 306 N.W.2d at 45. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601003/ | 391 So. 2d 66 (1980)
Raleigh J. CLEMENTS, Individually and as Administrator of the Estate of Lane Clements and Jeanette Clements
v.
STATE DEPARTMENT OF HEALTH, SOCIAL & REHABILITATION SERVICES, Division of Charity Hospital of Louisiana in New Orleans.
No. 10963.
Court of Appeal of Louisiana, Fourth Circuit.
November 12, 1980.
Rehearing Denied December 19, 1980.
Writ Refused February 13, 1981.
*67 Terry A. Bell, New Orleans, and Darryl J. Carimi, Gretna, for plaintiffs-appellants.
H. M. Westholz, Jr., New Orleans, for Louisiana Department of Health and Human Resources, defendants-appellees.
Montgomery, Barnett, Brown & Read, Wood Brown, III, New Orleans, for Dr. Gary Arnold, et al., defendants-appellees.
Before SAMUEL, GULOTTA and BOUTALL, JJ.
SAMUEL, Judge.
Lane Clements died on June 5, 1973 while receiving medical care at Charity Hospital in New Orleans. His parents timely filed a suit for malpractice against the hospital (i. e., the appropriate state department) on June 5, 1974. Almost four years later, on June 1, 1978, plaintiffs filed an amended petition joining as defendants the alleged treating physicians, Dr. Gary Arnold and Dr. John H. Kuzman, and Employers Mutual Liability Insurance Company of Wisconsin, their liability insurer, alleging those physicians were joint tort feasors with the hospital in causing the death of Lane Clements.
Plaintiffs[1] have appealed from a trial court judgment maintaining pleas of prescription filed by Arnold, Kuzman and Employers Mutual and dismissing plaintiffs' suit against those defendants.
Under Civil Code Article 2097[2] and our settled jurisprudence[3] a timely filed suit against one defendant interrupts prescription against all others who are sued later and are liable in solido with the originally sued defendant. Plaintiffs also correctly contend the two added individual defendants and their liability insurer are solidarily liable for negligence on the part of those individuals.[4]
Appellees concede that in ordinary cases the effect of Civil Code Article 2097 is to render prescription "unlimited" as to all solidary obligors once timely suit is filed against one of them, and prescription cannot successfully be pleaded by a later added solidary obligor irrespective of the number of years which have passed since the timely filing of the original suit. However, they contend, and the judgment appealed from appears to be based on that contention, that *68 this rule has been abrogated by R.S. 9:5628[5] which provides:
"A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts." LSA-R.S. 9:5628.
Appellees argue that the here critical phraseology is in Section A of the statute, which provides: "... in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect." (emphasis ours); that the phrase "in all events" is peremptive in nature and eliminates later suits against physicians, including those who are solidary obligors with persons timely sued; that the three year peremptive period extinguishes the claim and is not merely a procedural bar to its assertion;[6] that this peremptive period is a statement of legislative intent and policy to encourage the practice of the medical arts by eliminating what they call "the long tail of potential liability" which endangers the medical profession; and that, especially in view of its repealer clause in Act No. 214 of 1976, section 3, which states: "All laws or parts of laws in conflict herewith are hereby repealed, ...", the statute impliedly repeals Civil Code Article 2097 insofar as that article conflicts with the legislative intent of providing a definitive end of physicians' liability. We do not agree.
While statutes of limitation are remedial in nature and as such are generally accorded retroactive effect in the absence of language showing a contrary intention, both state and federal constitutions prohibit them from being applied retroactively so as to deprive a person of a vested right unless they allow a reasonable time for those affected by the statute to assert their rights.[7] A right is vested when "the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. The right must be absolute, complete and unconditional, independent of a contingency, and a mere expectancy of future benefit ... does not constitute a vested right."[8]
In the instant case, as we have said, suit was filed against the original defendant on June 5, 1974, more than a year prior to the September 12, 1975 effective date of R.S. 9:5628. At the time the suit was filed against the original defendant plaintiffs acquired a vested right, i. e., an absolute, complete and unconditional right, independent of any contingency, to make appellees party defendants as solidary obligors without being barred from doing so by prescription or peremption. Thus, as R.S. 9:5628 does not allow a reasonable time for those affected by the statute to assert their rights, the statute cannot validly deprive plaintiffs of that right, regardless of what may have been the intent of the legislature.
For the reasons assigned, the judgment appealed from is reversed, the pleas of prescription are overruled, and this case is remanded to the trial court for further proceedings in accordance with law and with *69 the views herein expressed. Defendants-appellees are to pay all costs of this appeal. All other costs are to await a final determination.
REVERSED AND REMANDED.
NOTES
[1] After the amended petition was filed, and prior to plaintiffs' appeal, Raleigh H. Clements died and his then major children, Curtis A. Clements, Alice Theresa Clements and Wayne John Clements were substituted as plaintiffs in his place. His wife, Jeanette Clements, remained a plaintiff, individually and on behalf of the two minor children.
[2] LSA-C.C. Art. 2097 reads: "A suit brought against one of the debtors in solido interrupts prescription with regard to all."
[3] Fontenot v. O'Brien, La.App., 361 So. 2d 298; Wick v. Sellers, La.App., 309 So. 2d 909; Hooper v. Wilkinson, La.App., 252 So. 2d 137; Sharp v. Massey-Ferguson, Inc., La.App., 153 So. 2d 508; and Franks v. City of Alexandria, La.App., 128 So. 2d 310.
[4] Plaintiffs cite Pearson v. Hartford Accident & Indemnity Company, La., 281 So. 2d 724, and Hidalgo v. Dupuy, La.App., 122 So. 2d 639.
[5] Act 808 of 1975 as amended by Act 214 of 1976.
[6] See Burmaster v. Gravity Drainage Dist. No. 2, La., 366 So. 2d 1381.
[7] Lott v. Haley, La., 370 So. 2d 521, and cases cited therein.
[8] Tennant v. Russell, 214 La. 1046, 39 So. 2d 726; Berteau v. Weiner Corp., La.App., 362 So. 2d 806, 808. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601009/ | 379 N.W.2d 70 (1985)
STATE of Minnesota, Respondent,
v.
Steven Todd ANDERSON, f.k.a. Steven Todd Jenkins, Appellant.
No. C4-84-964.
Supreme Court of Minnesota.
December 13, 1985.
*72 C. Paul Jones, Anne Lewis, Minnesota State Public Defender, Minneapolis, for appellant.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, Michael W. Cable, Lincoln County Atty., Ivanhoe, for respondent.
OPINION
WAHL, Justice.
Steven Todd Anderson, formerly known as Steven Todd Jenkins, was convicted of the first degree murder[1] of Rudolph Blythe and the second degree murder[2] of Deems Thulin, by shooting. The trial court sentenced him to consecutive terms of life imprisonment and 116 months imprisonment. He appeals from this judgment of conviction and sentence, contending there is insufficient evidence that he killed Blythe and Thulin or that Blythe's killing was premeditated. He also claims he was denied due process and a fair trial by various court rulings and by the court's failure to sequester the jury during deliberations. We affirm the convictions.
The tragedy occurred on the morning of September 29, 1983, when Rudolph (Rudy) Blythe, president of the Buffalo Ridge State Bank of Ruthton, Minnesota and Deems (Toby) Thulin, loan officer, drove to an uninhabited farm owned by the bank to meet a man they believed to be a prospective buyer for the property. They were shot and killed at the farm. The only other people on the property at the time of the shooting were Steven and his father, James Jenkins.
Steven's parents, James and Darlene Jenkins, had owned the farm, located between Ruthton and Tyler, and had run a small dairy operation there from 1977 to 1980. They had pledged the property as security for a 1979 farm operating loan from Buffalo Ridge State Bank. In 1980, James and Darlene Jenkins divorced, defaulted on the loan and declared bankruptcy. The family abandoned the property shortly thereafter and title passed to the bank. After the divorce and loss of the farm, Steven lived on and off with his mother or his paternal grandparents in Minnesota and with his father in Minnesota, Ohio and Texas. In May, 1983, he returned from Texas to Minnesota and his father followed several months later.
Father and son planned to begin dairy farming in Minnesota again. They rented a small farm near Hardwick in Rock County. During the months before the murders, James Jenkins sought financing or credit for the proposed operation from many lending institutions and cattle lessors, but credit was repeatedly denied. On September 28, 1983, Jenkins' final effort to negotiate the credit purchase of dairy cattle from a Long Prairie cattle dealer failed. Steven said his father blamed his inability to get credit on the 1980 bankruptcy and on banker Rudolph Blythe who, he believed, was giving him bad credit references. Susan Blythe, vice president of the bank and Rudolph's wife, confirmed that her husband had told prospective lenders about Jenkins' bankruptcy when they asked for a credit reference.
After being refused credit by the Long Prairie cattle dealer, James Jenkins telephoned Blythe at the bank and, posing as a potential buyer named Ron Anderson, arranged to meet Blythe at the old Jenkins' farm at 10:00 a.m. the next morning, September 29. Steven testified before the grand jury that his father told him, "we were going to go there and rob [Blythe] and scare him, scare the hell out of him." Steven understood the plan included him.
Steven and his father left home in their pick-up truck early the next day for the *73 10:00 a.m. appointment, with Steven driving. In the truck were four guns (a 12 gauge shotgun, a modified .410 shotgun, a .22 caliber pistol, and the gun later identified as the murder weapon, an M-1 semi-automatic rifle) some ammunition, two knives, three defused hand grenades and assorted military equipment, all belonging to Steven. Steven said he habitually stored the weapons in the cab of the pick-up truck with the exception of his M-1 rifle, which he kept in the corner of his room at night and took with him in the truck whenever he left the house.
The two arrived at their old farm at 8:30 a.m. and parked in the farmyard in front of the garage. A diagram of the farm is attached to this opinion as Appendix 1. James began removing the truck's front license plate. Steven took three guns from the truck, placing the .22 pistol on the seat, and the M-1 rifle and 12-gauge shotgun within reach on the hood of the truck. As James bent to remove the truck's rear license plate, father and son unexpectedly heard a car coming up the farm driveway. It was still long before 10:00 a.m., when Rudy Blythe was expected. Each, with a gun, ran and hid, Steven behind the garage. The location of James Jenkins during the ensuing incident was not determined at trial. Blythe's green station wagon pulled up the driveway and parked nose-to-nose with the Jenkins' white pick-up truck. Rudy Blythe and Toby Thulin got out of the car and began looking around, shouting "who is here?" Within minutes, a second car, driven by Susan Blythe, Rudy's wife, pulled into the farmyard. Susan had come to the farm to exchange cars with her husband. Rudy told her he thought the white truck belonged to the Jenkins. Susan stood for a few minutes next to her parked car talking with Toby Thulin. As she talked, she watched her husband walk past the station wagon, past the truck and along the west side of the garage toward a grove of trees that grew behind the building. She marked the most distant point of her husband's path by a ground depression that dropped from the end of the garage to the grove. She described seeing Rudy "walk down into a hole * * * I saw him kind of drop off." He did not appear to see anyone, however, and returned to where all three vehicles were parked. While Rudy had been investigating, Susan Blythe heard what she described as a "metallic, creaking kind of sound," a sound which she later identified as the rattle of old rain gutters, piled in the weeds behind the chicken house to the east and back of the garage, when someone stepped on them. When Rudy Blythe returned to the car, he told his wife to go get the sheriff because there were trespassers on the property. As Susan Blythe drove away towards the nearest town, she saw her husband once again in the garage-grove area and Toby, walking east away from the station wagon, looking around.
Steven maintained, in grand jury testimony admitted at trial, that he remained hiding behind the garage during these events and saw neither his father nor the victims until after the shootings, though he did hear somebody say "something about going to get the police" and one car leaving. Almost immediately after Susan Blythe drove away, however, three shots were fired at Blythe and Thulin at their car, killing Thulin instantly and wounding Blythe. Blythe fled towards the farmhouse front yard and the killer followed. Blythe was shot four times and fatally wounded as he tried to reach the road. He apparently died within a few minutes.
Steven and his father fled the farm immediately after the shootings. Paul Bartz, passing by the old Jenkins farm on County Road 7 at about 9:00 a.m., turned his truck around to investigate a flash of yellow, which turned out to be Blythe's jacket, in the ditch beside the road. He saw a white Chevy pick-up with a rear Texas license plate "screaming down the driveway." After leaving the farm, Steven and his father drove to Luverne, bought more ammunition, gasoline and a flashlight, and started for their home in Hardwick. On the road they encountered a Rock County deputy sheriff, Ronnal McClure, who turned around and began following them closely. *74 Steven said his father told him to get out and shoot at the policeman. They turned the truck onto a gravel road, Steven got out with the M-1 rifle and shot three times at McClure's car as it passed the intersection. McClure lay down in the seat, accelerated past the intersection and was not hit.[3] Without returning home, Steven and his father drove into South Dakota and on to Texas, driving at night to avoid police detection. They arrived at Paducah, Texas on Saturday, October 1, 1983. On Sunday, October 2, Steven left his father at the abandoned farm where they were hiding and surrendered to Paducah police, saying he was wanted in connection with some murders in Minnesota. Sometime Sunday night James Jenkins shot himself in the head and died on a county road leading to the abandoned farm.
Steven was brought back to Minnesota in custody. After consulting with his attorney, and being fully advised of his rights by the state's attorney, he gave his version of the shooting and surrounding events to the grand jury. The grand jury returned a six count indictment, charging Steven with:
Count 1: the intentional, premeditated death of Rudolph Blythe, Minn.Stat. § 609.185(1) (Murder in First Degree);
Count 2: the intentional death of Rudolph Blythe while committing or attempting to commit aggravated robbery, Minn. Stat. § 609.185(3) (Murder in First Degree);
Count 3: the intentional death of Rudolph Blythe, Minn.Stat. § 609.19(1) (Murder in Second Degree);
Count 4: the intentional death of Deems Thulin, Minn.Stat. § 609.19(1) (Murder in Second Degree);
Count 5: aiding, advising and conspiring with another in causing the death of Rudolph Blythe while committing or attempting to commit a felony offense against Blythe, where that death was a reasonably foreseeable consequence of the attempted felony, Minn.Stat. § 609.19(2), and 609.05(1)(2) (Murder in Second Degree);
Count 6: aiding, advising and conspiring with another in causing the death of Deems Thulin while committing or attempting to commit a felony offense against Thulin when that death was a reasonably foreseeable consequence of the attempted felony, Minn.Stat. §§ 609.19(2) and 609.05(1)(2) (Murder in Second Degree).
Steven was tried in Ivanhoe before a Lincoln County jury. He had requested, in two separate pre-trial pleadings, "that all hearings, trials [and] pre-trials be without exception held in Lincoln County in the Ivanhoe Courthouse and nowhere else." The jury found Steven guilty of Count 1, the intentional, premeditated murder of Rudolph Blythe and of Count 4, the intentional murder of Deems Thulin.
This appeal raises the following issues:
(1) Whether the evidence was sufficient to identify defendant as the person who killed Rudolph Blythe and Deems Thulin;
(2) Whether there was sufficient evidence of premeditation in the killing of Rudolph Blythe;
(3) Whether the trial court improperly excluded expert psychiatric testimony, polygraph test results, a graphological personality assessment and certain evidence of James Jenkins' character from evidence;
(4) Whether the trial court erred in denying a defense motion for a Schwartz hearing based on allegations of jury influence, in violation of defendant's right to a fair trial by an impartial jury; and
(5) Whether the trial court's failure to sequester the jury during its deliberations denied defendant a fair trial by an impartial jury.
1. Steven first challenges the sufficiency of the evidence, arguing that the state did not prove beyond a reasonable doubt that he was the person who killed Rudy Blythe and Toby Thulin. Throughout the murder investigation and trial, he maintained *75 his father, not he, was the killer. No other witness to the shootings lived to testify. The state's evidence identifying Steven as the killer was circumstantial.
A conviction may be based on circumstantial evidence and will be upheld if the "reasonable inferences from such evidence are consistent only with defendant's guilt and inconsistent with any rational hypothesis except that of his guilt." State v. Threinen, 328 N.W.2d 154, 156 (Minn.1983) citing State v. Kotka, 277 Minn. 331, 334, 152 N.W.2d 445, 448 (1967), cert. denied 389 U.S. 1056, 88 S. Ct. 806, 19 L. Ed. 2d 853 (1968). A conviction based on circumstantial evidence may stand "only where the facts and circumstances disclosed by the circumstantial evidence form a complete chain which, in the light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt." State v. Wahlberg, 296 N.W.2d 408, 411 (Minn.1980). Despite the stricter standard of review raised by a murder conviction based on circumstantial evidence, a jury is in the best position to evaluate the circumstantial evidence surrounding a murder and the jury verdict must be given due deference. State v. Linder, 304 N.W.2d 902, 906 (Minn.1981).
It is not disputed that two people were murdered at the old Jenkins' farm and that Steven and his father were at the farm when the murders occurred. Steven himself told the grand jury he went to the farm, armed and prepared for some violent encounter with Blythe and admitted fleeing with his father after the murders and shooting at a deputy sheriff to aid their escape. When he surrendered to Texas authorities, he acknowledged he was wanted in connection with some murders in Minnesota.
The state presented extensive physical evidence at trial describing the features of the farm and the evidence left from the murders. This evidence enabled the jury to reconstruct the sequence of events and determine the credibility of Steven's version of the incident. This presentation included video tapes and slide photographs of the farm, the location and position of the bodies and the shell casings at each shooting site; laboratory analysis of bullets recovered from the bodies and the Blythe car; a reconstruction of the observations of witness Susan Blythe; a reconstruction of shots being fired from the first shooting site into the Blythe car with the murder weapon; autopsy reports and laboratory analyses of the victims' clothing; and the murder weapon and analyses of test firings.
The physical evidence indicates that almost immediately after Susan Blythe drove away from the farm to fetch the police, a gunman stepped from behind the chicken house and fired three shots from the M-1 semi-automatic rifle at Blythe and Thulin, who had returned to the station wagon, quickly, it would appear, because they were heading away from the car in opposite directions as Susan left. One bullet entered the front passenger side window vent and hit Thulin in the neck, severing his spinal cord and killing him instantly. A second bullet lodged in the car door on Thulin's side. The third went through the front windshield, through the open driver's side window and hit Blythe in the lower back as he crouched beside the driver's-side door. This wound was not fatal nor did it seriously impair Blythe's ability to run or walk for he appears to have moved 90 yards west from the car after these first shots. Blythe's path led through the farmyard, along a sidewalk south of the farm house and across the front yard. The second set of four shots hit him as he went into a shallow ditch that separates the front yard from County Road 7. He was hit by all four bullets, shot from approximately 90 feet away, where four shell casings were found. The marksman had also moved 90 yards from the first shooting site. Two bullets hit Blythe in the side, very close together, causing fatal wounds. Another bullet hit Blythe's arm, the fourth passed through his jacket. Blythe apparently died within minutes.
*76 The state at trial extensively explored the physical evidence of the murders in light of the respective marksmanship and physical capabilities of Steven and his father to determine which of the two could have committed the murders. There was evidence of how the murder weapon operated and malfunctioned; evidence of the interest, experience, training and skill of both men in handling and shooting guns, particularly the murder weapon; and evidence of the physical condition of both, including eyesight and ability to run.
The murder weapon was an M-1 series semi-automatic rifle. There was evidence the gun often failed to operate semi-automatically; after firing, the used shell would not eject, but would "jam" the chamber, blocking the new shell. This jamming problem had been corrected the previous winter but the gunsmith testified the problem was a recurring one because of a manufacturing defect. According to a hunting friend of Steven's, the gun was jamming in the summer of 1984 and Steven himself stated that the gun jammed on the day of the murders when he shot at Officer McClure's squad car. BCA agents, testing the gun after the murders, found that it persistently jammed in test firing. A semi-automatic that jams can still be operated by manually clearing the chamber after firing. This manual operation is slower than semi-automatic function. Because manual operation is slower, the killer's demonstrated ability to shoot quickly and accurately indicated both expert ability and familiarity with the operation of this particular weapon.
Steven owned the murder weapon and had been trained to shoot it by a 31-year Army veteran, Charles Snow, Steven's boss in Texas. Snow, who had once seen Steven dance a tin can across a pond with the weapon, testified that Steven was a "superb" marksman. Snow also taught Steven the military skill of shooting accurately after running a distance, a skill Steven worked at perfecting by frequent practice. In the months before the murder, after his return to Minnesota, Steven had shot at least 500 rounds in target practice with the gun, indicating familiarity with the M-1's malfunction as well as its usual operation. He was attached to the murder weapon and kept it near him at all times. He was also deeply interested in the military and habitually wore military fatigues and a military-style haircut. He owned several weapons and other military equipment, such as defused hand grenades, etc. and often asked older men in his acquaintance about weaponry, explosives and military experiences. Steven was an 18-year-old in good physical condition at the time of the murders.
James Jenkins, on the other hand, was 46 years old and physically limited by impaired eyesight and a resulting slowness and hesitancy in his movement. The father suffered from retinitis pigmentosa, a progressive disease causing "tunnel vision," night blindness and, eventually, complete blindness. His corrected vision was 20% of normal in his right eye (the eye with which he would aim a weapon) and 63% of normal in his left eye. While Jenkins could see well enough to work, hold a driver's license and drive during the day, there was evidence his poor vision limited his mobility and made sighting and shooting a gun difficult. Recent associates described him as walking "oddly," as if he had to feel his way along the ground with his feet. There was testimony his eyesight had recently prevented him from being able to use a mechanical gunsight like that on the murder weapon. In addition, Jenkins had not owned or shot a gun with any frequency for several years, although he may have received training to shoot an M-1 rifle while in the National Guard twenty years earlier. Steven said his father had practiced target shooting only a few times in the last 2-3 years and did not share his son's interest in guns. Jenkins' friend in Texas said he once saw him try to sight a shotgun, but he couldn't focus, and said, "I can't see anything through it." Jenkins refused a deer hunting invitation from this friend, claiming poor eyesight. Jenkins borrowed a shotgun for use in guard duty at his job in Texas, but returned it the next day, saying "I don't want to carry it because *77 if I used it I would get myself killed."
Physical evidence of the murders indicated the killer shot quickly and with great accuracy. Thulin was killed by one bullet through the neck. Then the killer chased Rudolph Blythe for 90 yards and shot again, hitting his target with all four bullets and placing two of those bullets, the fatal shots, within 1 to 1-½ inches of each other. There was evidence running and shooting diminishes the accuracy of marksmanship and the less fit the shooter, the greater the impact of this strenuous maneuver. Faced with this evidence, the jury could well have been forced to conclude, even against their natural sympathies, that Steven, who was young, agile, skilled at running then shooting, and an expert marksman with the M-1, had shot Blythe and Thulin rather than his father, who had limited mobility, a serious visual handicap and rarely handled guns.
The jury was also confronted with the contradictions between Steven's version of events at the farm and Susan Blythe's testimony. Steven claimed he hid behind the garage throughout the shootings and did not see the victims or his father until the murders were over. Susan Blythe, in her testimony, described her husband as walking past the end of the garage, where Steven said he was hiding. The BCA reconstruction of Susan's description confirms that Rudy, in looking for trespassers, could have been seen along the north end of the garage where Steven claimed to be hiding. Steven also said he did not hear the metallic noise described by Susan Blythe, even though his position behind the garage was closer to its source, the pile of rain gutters behind the chicken coop, than was hers. The conflicts between their testimony are significant. If Steven was behind the garage, he would have seen Rudy walk past the building and into the grove. If he did not, it seems likely Susan Blythe's "metallic noise" was made by his stepping on the rain gutters as he ran from behind the garage around the chicken coop to avoid being seen by Rudy as he investigated. The first set of shots was fired from the corner of the chicken coop.
Susan Blythe's testimony conflicted with Steven's in another way. As she drove away from the farm to contact the sheriff, she testified her husband and Toby were walking away from the station wagon, in different directions. Steven's testimony was that the shooting began 15-20 seconds after he heard Susan Blythe's car leave the farm. In the time period after her departure and before the shooting, he said he heard no sounds that would explain why the victims suddenly, quickly and quietly returned to their car. The jury could reasonably have concluded that some confrontation or warning event happened during that time, causing the victims to run back to their car.
In State v. Lloyd, 345 N.W.2d 240, 245 (Minn.1984), this court held that resolving conflicting testimony is the exclusive function of the jury because it has had the opportunity to observe the demeanor of witnesses and to weigh their credibility. It is for the jury to determine the weight and credibility of the testimony of the individual witnesses. State v. Engholm, 290 N.W.2d 780, 784 (Minn.1980). On review, we will "assume that the jury believed the State's witnesses and disbelieved everything which contradicted their testimony." State v. Wahlberg, 296 N.W.2d 408, 411 (Minn.1980). The jury verdict in this case indicates that the jury did not believe Steven's version of events.
Steven argues strongly that he had no motive to kill Blythe, whereas his father did. Proof of motive is not required to prove guilt of murder. However, motive helps form inferences from a pattern of circumstantial evidence. James Jenkins had the more apparent motive to harm Rudy Blythe. There was evidence that he lost his farm to Blythe in 1980, that he believed Blythe was a cause of his inability to get the credit necessary to begin farming again and that he expressed some sexual jealousy of the banker. Although there was no evidence that Steven and Rudy knew one another, the jury could have concluded *78 that any motive Steven might have had derived from his father's and grew out of their closeness and common purpose to begin a new life farming together.
We have reviewed the record in great detail, ascertaining, as did the jury, the pattern of circumstantial evidence. Under the Threinen standard of review, the reasonable inferences from this pattern of circumstantial evidence must be "inconsistent with any rational hypothesis except that of [defendant's] guilt." Threinen, 328 N.W.2d at 156. The evidence as a whole need not exclude all possibility that the father, not the son, was the killer. It must, however, make that theory seem unreasonable. We hold that the evidence, taken as a whole, meets this strict standard and identifies Steven, beyond a reasonable doubt, as the person who killed Rudy Blythe and Toby Thulin.
2. Steven next argues that even if he is identified as the killer, there is not sufficient evidence to prove he killed Rudy Blythe with premeditation. Blythe's murderer clearly intended to kill him. Premeditation is more than intent to kill, however. State v. Ulm, 326 N.W.2d 159, 162 (Minn. 1982). Premeditation, according to Minn. Stat. section 609.18, means "to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission." Premeditation is inferred from words and actions in light of the totality of surrounding circumstances. State v. Hardimon, 310 N.W.2d 564, 566 (Minn.1981). As a state of mind, premeditation can usually only be proved circumstantially, and the jury is considered best able to weigh the evidence. State v. Linder, 304 N.W.2d 902, 906 (Minn.1981).
Key evidence of premeditation in this case was that Blythe's killer shot repeatedly and chased his victim from the first shooting site to the second shooting site to fire the fatal shots. Also, Steven admitted he went to the farm with a violent plan to "rob and scare" Rudy Blythe. He and his father arrived at the farm with numerous weapons and Steven admitted he took 3 of those weapons out of the truck, indicating intent to use them.
These circumstances resemble those in State v. Amos, where a defendant who deliberately armed himself and ran across the street to shoot his victim was found to have acted with premeditation. 347 N.W.2d 498, 501 (Minn.1984). Premeditation may be formed almost instantaneously. State v. Neumann, 262 N.W.2d 426, 430 (Minn.1978). Though Steven was not charged with the premeditated killing of Thulin, it is consistent with this court's rulings to find he formed the requisite "plan" in the interim between the two murders as he chased Blythe. We hold the evidence sufficient to prove the element of premeditation in the death of Rudy Blythe.
3. Steven contends the trial court improperly excluded certain evidence offered at trial to prove a duress defense or to prove that his father, not he, killed Blythe and Thulin. The evidence he offered included: expert psychiatric testimony that his father was mentally unstable or insane; character evidence and evidence of specific incidents of bad conduct to show his father was angry, belligerent, cruel to animals, suicidal and had threatened to harm and kill others; and, a graphological assessment of his father's personality. Steven also offered his own polygraph test results. The trial court excluded certain portions of this evidence and ruled other portions could be offered at trial.
At the conclusion of the trial, defense counsel stated Steven was abandoning the duress defense. The trial court agreed insufficient evidence pertaining to duress had been offered to submit the issue to the jury. In his post-trial motion for new trial or to vacate judgment, Steven argued the trial court exclusion of certain evidence destroyed his duress defense and violated his constitutional rights under the sixth and fourteenth amendments. These motions were denied by the trial court judge.
The proffered expert psychiatric testimony consisted of an assessment of his father's personality and of Steven's relationship with his father. The assessment was *79 based on interviews with Steven and with his family, all conducted after the murders and his father's suicide. The trial court excluded this evidence on two grounds. First, that the psychiatric evaluation was entirely based on hearsay as regards its conclusions about James Jenkins and, therefore, was too speculative and unreliable an opinion to be competent. The trial court also ruled that the duress evidence offered related to the influence of the father over his son and this was a matter within the common experience of a jury so as to preclude the necessity for expert testimony. Expert testimony is admitted under Minn.R.Evid. 702 if it will assist the trier of fact to understand the evidence or to determine a fact in issue. Even if relevant, evidence may be excluded under Minn.R.Evid. 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. We hold the trial court properly excluded this evidence.
Steven offered into evidence his own polygraph test results. He also offered a graphological personality assessment of his father, an analysis of handwriting, to show that his father was a violent, threatening man. The trial court excluded both as too unreliable to have probative value. The scientific technique on which expert testimony is based must be scientifically reliable and broadly accepted in its field. Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). State v. Mack, 292 N.W.2d 764, 768 (Minn.1980). Polygraph test results are not admitted in Minnesota civil or criminal actions because there is insufficient evidence of their reliability. State v. Michaeloff, 324 N.W.2d 926, 927 (Minn.1982). We affirm that judgment of unreliability here. The polygraph test results were properly excluded.
The admissability of a graphological personality assessment is a matter of first impression in this state. "Graphology" is defined in Webster's New Collegiate Dictionary (1977) as "the study of handwriting especially for the purpose of character analysis." Thus, graphological analysis is distinct from handwriting analysis, widely accepted by this court and others as a means to identify a signature as that of a particular signer. Most other jurisdictions that have considered the admissability of expert graphological personality assessment have excluded it as too scientifically unreliable. See, People v. Hester, 39 Ill. 2d 489, 237 N.E.2d 466, 480 (1968) (handwriting analysis of note victim was writing at moment she was attacked to show her state of mind excluded) cert. denied 397 U.S. 660, 90 S. Ct. 1408, 25 L. Ed. 2d 642 (1970); Daniels v. Cummins, 66 Misc. 2d 575, 580-82, 321 N.Y.S.2d 1009, 1014-16 (N.Y.Sup.1971) (handwriting expert may give opinion of genuineness of signature, but may not testify as to signer's mental state or capacity). Our review of the scientific literature indicates that the technique of graphology is accorded a low measure of scientific reliability in predicting character or state of mind and is not generally accepted in the scientific fields of psychology and psychiatry. For these reasons, a graphological personality assessment does not meet the standard required for admission of expert testimony under Frye and its Minnesota progeny. We hold the exclusion of a graphological personality assessment of James Jenkins was proper.
Steven also offered evidence of his father's general reputation and specific acts of past bad conduct to prove his duress defense and that his father, acting in conformity with that reputation or behavioral history, was the killer of Blythe and Thulin. The trial court ruled such evidence admissible only to the extent it would be admitted against James Jenkins himself under Minn. R.Evid. 404(a) and (b) were he a defendant. All exceptions to the general bar on bad character evidence would apply, allowing in evidence showing "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Minn. R.Evid. 404(b). Thus, any evidence that James threatened or behaved threateningly towards the victims would be admitted. Further, the trial court ruled admissible any evidence of James' character or bad *80 conduct relevant to Steven's proposed duress defense. The court was willing to consider any evidence with "some bearing on the general issue of intent," including conduct or statements by the father that occurred in Steven's presence or within his awareness, or evidence demonstrating "the nature of the relationship" between father and son.
The trial court's general ruling on character evidence conforms to the guidelines we set out in State v. Hawkins, 260 N.W.2d 150, 158-59 (Minn.1977) which require a proper foundation of facts connecting a third person to the crime before otherwise-excluded character evidence of that person may be introduced to raise a reasonable doubt that the accused committed the crime. James Jenkins was connected to the crimes by his past dealings with Blythe, by his telephone call luring Blythe to the farm and by his presence at the scene. We hold the trial court properly determined the admissibility of evidence of James Jenkins' character offered either to prove Steven acted under duress or that his father was the killer.
4. Following return of the jury verdict, defense counsel moved the trial court to conduct a Schwartz hearing to investigate alleged incidents of jury misconduct. See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960). A Schwartz hearing is not mandated until a defendant establishes a prima facie case of jury misconduct. State v. Larson, 281 N.W.2d 481, 484 (Minn.1979) cert. denied, 444 U.S. 973, 100 S. Ct. 467, 62 L. Ed. 2d 388 (1979). To establish a prima facie case, sufficient evidence "which, standing alone and unchallenged would warrant the conclusion of jury misconduct" must be submitted. Id. Generally, such hearings are to be liberally granted. Olberg v. Minneapolis Gas Co., 291 Minn. 334, 343, 191 N.W.2d 418, 424-25 (1971). The trial court denied the motion because Steven presented no evidence which, to the court, reasonably suggested jury misconduct.
Steven's counsel submitted three affidavits to establish a prima facie case. One relayed the comments of a juror, reported through a chain of conversations, that she felt she was "exposed to tremendous pressure in the Jenkins trial." A second affidavit, from Steven's mother, stated she had seen female jurors using the courthouse public bathrooms during the trial and described "much commingling between Jury, Press and audience." She also stated she heard jurors say they were going to watch themselves on television. A final affidavit by defense counsel described a conversation during the trial between a newspaper reporter and the jury foreperson. This last incident was brought to the court's attention during the trial, whereupon the court held a hearing in chambers and found the subject of the conversation to be a prescription medicine for an ailing back. The court then delivered an additional admonition to the jury about their duty to avoid outside contacts.
A prima facie case for a Schwartz hearing may be based on hearsay, as was much of the evidence submitted in these affidavits, but the case alleged may not be "wholly speculative." See also, State v. Mings, 289 N.W.2d 497, 498 (Minn.1980); Olberg, 291 Minn. at 342, 191 N.W.2d at 424. In the affidavits before the trial court, the alleged jury behavior is only vaguely described and the credibility of the statements ascribed to certain jury members is doubtful because their alleged remarks are reported through multiple levels of hearsay. Such allegations are insufficient to establish a prima facie case. We hold the trial court did not err in denying the motion for a Schwartz hearing based on speculative and doubtful allegations of jury misconduct.
5. The final issue is whether the trial court's failure to sequester the jury during its deliberation denied Steven a fair trial by an impartial jury. The court recessed the jury overnight during its deliberations. Steven neither consented nor objected to *81 this separation, nor had he previously requested sequestration. The next morning when the jurors returned to complete their deliberations, Steven did not request that the trial court question them about any outside influences they may have encountered, nor did the trial court, on its own, conduct such an inquiry.
Steven correctly notes that Minn.R.Crim.P. 26.03, subd. 5(1) requires the jury to be sequestered if they recess overnight during deliberations unless the defendant consents to the separation. We have recently held, however, that mere separation of the jury in violation of Minn.R. Crim.P. 26.03, subd. 5, without more, does not raise a presumption of prejudice. State v. Sanders, 376 N.W.2d 196 (Minn. 1985). Prejudice in such a case will be presumed only upon a showing of any private communication or contact or any other circumstance suggestive of improper influence or jury tampering, direct or indirect. The State will then bear the burden of overcoming the presumption. Id. The record before us contains no showing of any such private communication or contact or any other circumstance such as pervasive, unfavorable publicity suggestive of improper influence or jury tampering, direct or indirect. Nor do the circumstances of the separation justify an inference of prejudice. We hold that lack of sequestration of the jury during its deliberation, on this record, did not deny Steven a fair trial by an impartial jury.
Because we find no error in the trial court's rulings or actions, and because the evidence is sufficient to prove beyond a reasonable doubt that Steven, not his father, killed Rudolph Blythe and Deems Thulin and that the killing of Rudolph Blythe was premeditated, we affirm the convictions and sentences in this case.
Affirmed.
KELLEY J., took no part in the decision or consideration of this case.
NOTES
[1] Minn.Stat. § 609.185(1)
[2] Minn.Stat. § 609.19(1)
[3] Steven pled guilty in Rock County to a charge of second degree assault, Minn.Stat. § 609.222, in connection with this incident. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602290/ | 786 N.W.2d 880 (2010)
Susan L. NORDIN, the Personal Representative of the Estate of Lester L. Nordin, Respondent,
v.
Roland RETZLAFF, Appellant.
No. A09-1854.
Court of Appeals of Minnesota.
July 27, 2010.
Thomas P. Klecker, Thornton, Reif, Dolan, Bowen & Klecker P.A., Alexandria, MN, for respondent.
Michael M. Fluegel, Jason G. Lina, Fluegel, Anderson, McLaughlin & Brutlag Chtd., Morris, MN, for appellant.
Considered and decided by SCHELLHAS, Presiding Judge; CONNOLLY, Judge; and WILLIS, Judge.[*]
*881 OPINION
SCHELLHAS, Judge.
Appellant challenges the district court's grant of summary judgment to respondent, arguing that his mother's third-party partial payment on a promissory note did not toll the statute of limitations under Minn.Stat. § 336.3-118(b) (2008). Respondent challenges the district court's denial of attorney fees and costs.
FACTS
Appellant Roland Retzlaff and respondent Susan Nordin were previously married to one another. During their marriage, respondent's parents, Lester and Eleanor Nordin, advanced money to the parties. Neither Lester nor Eleanor Nordin demanded repayment of principal or interest until late 1997, when appellant and respondent were in the process of dissolving their marriage. On or about December 31, 1997, Lester Nordin presented appellant with a promissory note for $38,775 in favor of "Lester or Eleanor Nordin or Order," and appellant signed the note. Under the terms of the note, interest accrued on the unpaid balance at 7% per annum; no due date was stated; and appellant agreed "to pay the cost of collection..., including a reasonable attorney fee." In 1998, appellant and respondent's marriage was dissolved; in 1999, Lester Nordin, whose wife Eleanor had died, married appellant's mother, Edna.
Lester Nordin made no demand for payment and appellant made no payments of principal or interest on the note. But, on June 10, 2003, appellant's mother, Edna Nordin, made a $10,000 payment on the note to Lester Nordin. Upon payment, Lester Nordin made the following notation on the back of the note: "Received June 10, [2003] payment on note 10,000. No interest to be paidjust balance of Note. LLN." Lester Nordin died on August 19, 2008. Appellant made no payment of principal or interest on the note after his mother made the $10,000 payment.
On December 23, 2008, respondent, in her capacity as personal representative of the estate of Lester Nordin, demanded that appellant pay the principal balance due on the note in the amount of $28,775. Appellant made no payment, and respondent sued appellant on the note in 2009.
Appellant and respondent brought cross-motions for summary judgment and stipulated that there were no genuine issues of material fact. Appellant argued that the 10-year statute of limitations in Minn.Stat. § 336.3-118(b) barred respondent's action to enforce the note. Respondent argued that the action was not barred by the statute of limitations because Edna Nordin's $10,000 payment on June 10, 2003, prevented the statute from running. The district court granted summary judgment to respondent, denied summary judgment to appellant, and denied respondent's request for attorney fees and costs. This appeal follows.
ISSUES
I. Did the district court err by concluding that the third-party partial payment on the promissory note tolled the statute of limitations under Minn.Stat. § 336.3-118(b)?
II. Did the district court abuse its discretion by denying respondent attorney fees and costs?
ANALYSIS
A district court shall grant summary judgment if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, *882 show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law." Minn. R. Civ. P. 56.03. "On appeal from summary judgment, we review de novo whether a genuine issue of material fact exists, and whether the district court erred in its application of the law." Peterka v. Dennis, 764 N.W.2d 829, 832 (Minn.2009) (quotation omitted). "We view the evidence in the light most favorable to the one against whom summary judgment was granted." Id.
I
A promissory note is payable on demand if the note does not state any time of payment, Minn.Stat. 336.3-108(a) (2008), and the parties here agree that the promissory note was payable on demand. The parties also agree that the statute of limitations applicable to enforcement of the note is set forth in Minn.Stat. § 336.3-118(b). But the parties disagree about whether the partial payment on the note made by appellant's mother in June 2003 tolled the statute of limitations.
Appellant challenges the district courts conclusion that his mothers $10,000 payment in June 2003 tolled the statute of limitations, arguing that enforcement of the promissory note is barred under Minn. Stat. 336.3-118(b), because he paid neither principal nor interest on the note for a continuous period of ten yearsDecember 31, 1997 through December 31, 2007.
Section 336.3-118(b) provides that "[i]f no demand for payment is made to the maker [of a note payable on demand], an action to enforce the note is barred if neither principal nor interest on the note has been paid for a continuous period of ten years." (Emphasis added.) The district court determined that appellants mothers $10,000 payment was made on appellants behalf and that the payment therefore tolled the statute of limitations. To determine whether the $10,000 qualified as a payment for purposes of section 336.3-118(b), the district court relied on Minn.Stat. 336.3-602(a) (2008), which provides that "an instrument is paid to the extent payment is made by or on behalf of a party obliged to pay the instrument, and to a person entitled to enforce the instrument." (Emphasis added.) In determining that appellants mothers June 2003 payment tolled the statute of limitations under section 336.3-118(b), the district court did not analyze whether appellant authorized or ratified his mothers third-party partial payment. The district court omitted this analysis after concluding that the principles of law and equity applicable to the issue were displaced by Minn.Stat. 336.3-602(a). We must first address whether the district court's omission of this analysis was correct.
Section 336.1-103(b) provides that principles of law and equity supplement the provisions of the Uniform Commercial Code unless a particular provision of the code displaces them. The district court viewed section 336.3-602(a) as being a particular provision that displaced principles of law and equity. We disagree. Because section 336.3-602(a) provides only that an instrument "is paid to the extent payment is made by or on behalf of a party obliged to pay the instrument," but does not state how to determine when such a payment is made, section 336.3-602(a) does not displace principles of law and equity.
Next, regarding whether the $10,000 payment was made on behalf of appellant, because no particular provision of the code states how to make the determination, principles of law and equity apply to this analysis. Under Minnesota law, "[p]art payment before the statute of limitations has run tolls the running of the statute upon the theory that it amounts to *883 a voluntary acknowledgment of the existence of the debt from which a promise to pay the balance is implied." Bernloehr v. Fredrickson, 213 Minn. 505, 507, 7 N.W.2d 328, 329 (1942). But the partial payment "must be made by the debtor himself, or by his authority, or, if not made by him personally or by his authority, it must be ratified by him." Id. In Bernloehr, a case appealed after a jury trial, the supreme court explained that
a part payment upon a promissory note by one of two joint makers before the statute of limitations has run will not prevent the running of the statute of limitations as to the other maker, except where the part payment is made pursuant to the latter's authority, or where, if he did not authorize such payment, he subsequently ratified it.
Id. The court also noted that the lack of direct evidence of an express communication by one comaker to another to make payments did not preclude a finding that a comaker procured and caused another comaker to make payments. Id. at 508, 7 N.W.2d at 329. The court held:
Where the evidence shows that, before the statute of limitations has run, defendant, one of two comakers of a promissory note, assured the payee that he would receive his interest from the other comaker, and shortly thereafter the interest was paid as promised by such comaker, it permits an inference that the payment was made at defendant's direction and by his procurement so as to interrupt the running of the statute of limitations as to him.
Id. Citing Erickson v. Husemoller, 191 Minn. 177, 253 N.W. 361 (1934) and other cases, the supreme court noted that "[t]he authorities seem to hold that part payment by one comaker with the consent of another suspends the running of the statute of limitations as to the latter." Bernloehr, 213 Minn. at 508-09, 7 N.W.2d at 330.
Erickson involved a question of whether one comaker was bound by payments made by the other, so as to toll the statute of limitations as to both comakers. 191 Minn. at 181-82, 253 N.W. at 363-64. The supreme court noted that the defendant-comaker had gone "to his comaker and directed and induced him to make the payments," that he "thereby paid his own indebtedness as well as the indebtedness of his son-in-law," and that "[i]t was to his interest to have the payments made, and he induced the making thereof." Id. at 183, 253 N.W. at 363. Distinguishing the case from Atwood v. Lammers, 97 Minn. 214, 106 N.W. 310 (1906), which the court noted "was decided on the ground that there was no evidence to show that payment in question was authorized, consented to, or known of, by the defendant, or ever ratified by him," the Erickson court said, "we have evidence that defendant requested, consented to, and procured the payments to be made." Erickson, 191 Minn. at 185, 253 N.W. at 364.
Mere knowledge of payments made by a comaker is not sufficient to show ratification of the payments. Pfenninger v. Kokesch, 68 Minn. 81, 82, 70 N.W. 867, 867 (1897); see also Woodcock v. Putnam, 101 Minn. 1, 2-3, 111 N.W. 639, 639 (1907) (citing Pfenninger and holding that "[i]n order to prevent the running of the statute of limitations, a payment must be made by the debtor in person, or for him by his authority, or for him and in his name without authority, and subsequently ratified by him"). In Pfenninger, the supreme court stated that "[t]he mere fact that after defendant knew that his father had made these payments he verbally promised to pay the balance would not amount to a ratification of the payments as *884 having been made for him or in his behalf." 68 Minn. at 82, 70 N.W. at 867.
In summary, applying principles of law and equity, these cases require proof that appellant authorized or ratified his mother's third-party partial payment on the promissory note to constitute a payment that tolls the statute of limitations applicable to an action to enforce the note. We now apply these principles of law and equity to the undisputed facts of this case.
Appellant stated in an affidavit that:
7. No demand for repayment of the loan amount was ever made by Lester Nordin after I signed the note on December 31, 1997 until the Estate of Lester Nordin made its demand on December 23, 2008.
8. Some time after June 10, 2003, my mother, Edna Nordin, informed me that she had given Lester Nordin some money for the debt owed Lester Nordin. I do not remember how long after June 10, 2003 we had this conversation but believe it was no less than two months and no more than two years after June 10, 2003. This was the extent of our conversation regarding the matter.
9. I did not know how much my mother had paid Lester Nordin until I received the December 23, 2008 demand.
10. My mother, Edna Nordin[,] currently suffers from advanced Alzheimer's and is unable to provide evidence or testimony.
11. I did not authorize my mother to make any payments to Lester Nordin on my behalf, nor did I ever indicate or communicate to my mother, to Lester Nordin, nor to anyone else, my approval of said payment.
Appellant argues that because the only evidence before the district court supports his position that he did not authorize or ratify his mother's third-party payment on the note, the district court erred by concluding that the payment tolled the statute of limitations under Minn.Stat. § 336.3-118(b).
Respondent argues that the focus of our analysis should be on Lester Nordin's purported intent that the debt be repaid and cites several cases in support of this proposition. But none of the cases cited by respondent actually supports this proposition, and all of them were decided well before the 1992 enactment of the applicable statute of limitations. See 1992 Minn. Laws ch. 565, § 20, at 1832 (enacting section 336.3-118); see also Andrews v. Andrews, 170 Minn. 175, 183, 212 N.W. 408, 411 (1927) (noting the common-law rule limiting the time for making a demand for payment, but allowing for longer period when the parties contemplated an indefinite delay in making a demand); Fallon v. Fallon, 110 Minn. 213, 217, 124 N.W. 994, 996 (1910) (noting that when parties contemplated an indefinite delay in making the demand, the statutory period for bringing the action was not controlling as the question of reasonable time for making a demand under the common-law rule); Portner v. Wilfahrt, 85 Minn. 73, 75, 88 N.W. 418, 419 (1901) (holding that when it appears that money was to be paid upon demand, the statute of limitations did not begin to run until demand for payment was made). In addition, parties intentions are a question of fact, and here the parties stipulated before the district court that there were no genuine issues of material fact. We therefore reject respondents argument that we should focus our analysis on Lester Nordin's intent.
We agree with appellant that the record contains no evidence that appellant's mother made the $10,000 payment to Lester Nordin in June 2003 with appellant's authorization or ratification. The mere fact that appellant became aware of his mother's *885 payment some time after June 10, 2003, did not amount to ratification of the payment. Based on the caselaw that supplements the Uniform Commercial Code, we conclude that appellant did not authorize or ratify his mothers third-party partial payment on the note. We therefore also conclude that the district court erred when it concluded that the third-party payment by appellant's mother tolled the statute of limitations.
II
Respondent argues that the district court abused its discretion by denying her claim for attorney fees and costs incurred in connection with her successful action to enforce the note. Because this court is reversing the district court's grant of summary judgment to respondent and denial of summary judgment to appellant, we do not reach the issue of attorney fees and costs.
DECISION
No particular provision of the Uniform Commercial Code displaces the principles of law and equity applicable to a determination of whether a third-party's partial payment on a promissory note is made with the maker's authorization or ratification. Absent authorization or ratification by the maker, a third-party's partial payment on a note does not toll the 10-year statute of limitations applicable to an action to enforce the promissory note under Minn.Stat. § 336.3-118(b). Because appellant paid neither principal nor interest on the promissory note for a continuous period of ten years, the action to enforce the note is barred under Minn.Stat. § 336.3-118(b). Judgment for respondent is reversed.
Reversed.
NOTES
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601105/ | 379 N.W.2d 772 (1986)
221 Neb. 639
STATE of Nebraska, Appellee,
v.
Gerald E. JACOBSON, Appellant.
No. 85-392.
Supreme Court of Nebraska.
January 17, 1986.
John C. Kinney of Ryan & Scoville Law Office, for appellant.
Robert M. Spire, Atty. Gen., and Timothy E. Divis, for appellee.
KRIVOSHA, C.J., BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN and GRANT, JJ., and COLWELL, District Judge, Retired.
HASTINGS, Justice.
This appeal questions which law applies to a criminal sentencing following revocation of probation: the penal statute in effect *773 at the time of the original sentence to a term of probation, or that which is effective at the time of sentencing following the revocation.
On November 18, 1980, following a plea of guilty, defendant was convicted of driving while intoxicated, third offense, a violation of Neb.Rev.Stat. § 39-669.07 (Reissue 1978). The penalty then prescribed for that felony offense was up to 5 years' imprisonment, a 1-year suspension of driving privileges, and a fine of up to $10,000. On January 7, 1981, defendant was sentenced to a term of probation for 60 months.
In November of 1984 defendant was convicted in Iowa and sentenced for a driving while intoxicated offense. On the basis of that violation, the district court for Dakota County, following a plea of guilty, revoked defendant's probation.
Defendant was sentenced on May 7, 1985, to a term of imprisonment of from 18 months to 5 years. He was given no credit for time served in jail prior to sentencing. He had been arrested and held in jail by Nebraska authorities from March 21, 1985, until the date of sentencing.
At the time of the present sentencing, § 39-669.07 (Reissue 1984) had been amended, effective in 1982. It now provides that driving while intoxicated is a Class W misdemeanor, with penalties for third offense of 3 to 6 months in jail, a $500 fine, and a lifetime suspension of driving privileges.
Defendant assigns as error: (1) Sentencing under the 1978 statute, which was greatly in excess of that permitted by the 1982 amendment; (2) The failure of the court to give him credit for presentencing jail time; and (3) The failure of the State to meet its burden on enhancement for sentencing purposes.
Although we find no merit to either the first or third assignment of error, the record discloses, and the State concedes, that defendant must be given credit for jail time. Therefore, we affirm the judgment and sentence of the district court, but modify the sentence to provide for credit of 48 days previously served in jail.
The defendant argues that under the doctrine laid down by State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (1971), cert. denied 403 U.S. 909, 91 S. Ct. 2217, 29 L. Ed. 2d 686, and the provisions of Neb.Rev.Stat. § 29-2204.01 (Reissue 1979), he should have been sentenced under the amended law, with the maximum term of imprisonment limited to 6 months.
Randolph provides that whenever a criminal statute is amended by mitigating the punishment after the commission of a prohibited act but before final judgment, the punishment shall be that provided by the amendatory act. Section 29-2204.01 requires the discharge from confinement of any person who has served the maximum period of confinement provided for that crime by any later statutory amendment.
Although recognizing the factual distinction between that section and the facts of this case, the defendant argues his conclusion by analogy. However, we rejected the same arguments in State v. Peiffer, 212 Neb. 864, 326 N.W.2d 844 (1982), and concluded that a defendant convicted and sentenced before the law was amended, but whose appeal was pending at the time of such amendment, was not entitled to have Randolph or § 29-2204.01 apply so as to become the beneficiary of the alleged ameliorating provisions of § 39-669.07, as amended.
The fact that the act which furnished the basis for probation revocation, as well as the actual order of revocation and sentencing thereof, occurred after the law was amended is of no consequence. Upon revocation of probation the court may then impose on the offender such punishment as might have been imposed originally for the crime of which such defendant was convicted. Neb.Rev.Stat. § 29-2268(1) *774 (Reissue 1979). The district court was correct in sentencing defendant under the 1978 law.
There is no merit to defendant's third assignment of error relating to enhancement. The finding of the district court that this was in fact a third offense was made at the time of the original sentence to a term of probation in 1981. A sentence of probation is a final and appealable order from which an appeal must be taken within 1 month. State v. Osterman, 197 Neb. 727, 250 N.W.2d 654 (1977). The defendant cannot now base an appeal on any error alleged to have occurred more than 4 years ago.
The judgment and sentence of the district court were correct, except as modified herein, and they are affirmed.
AFFIRMED AS MODIFIED.
CAPORALE, Justice, dissenting.
I dissent for the reasons set forth in my dissenting opinion in State v. Peiffer, 212 Neb. 864, 326 N.W.2d 844 (1982).
KRIVOSHA, C.J., joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1551370/ | 908 A.2d 1168 (2006)
Patrick McATEER, Appellant,
v.
William E. LAUTERBACH, et al., Appellees.
No. 06-CV-976.
District of Columbia Court of Appeals.
Decided October 12, 2006.
Lawrence J. Gebhardt and Ramsay M. Whitworth, Baltimore, MD, filed a memorandum for appellant.
*1169 Dennis M. Hart, Washington, Joanne Early, Steven C. Lockhart, and Connor Sheehan filed a memorandum for appellee.
Before FARRELL and KRAMER, Associate Judges, and NEWMAN, Senior Judge.
PER CURIAM:
This is an appeal from the Superior Court's grant of a motion by the defendants-appellees to cancel and release notices of lis pendens (or pendency of an action) which had been filed with the Recorder of Deeds by the plaintiff-appellant pursuant to D.C.Code § 42-1207 (2001). The plaintiff had filed the notices in connection with his suit in Superior Court alleging fraud (common law and securities) and breaches of fiduciary duty or contract by the defendants. Essentially, the suit alleged that the defendants had bilked the plaintiff of more than one and a half million dollars by promising him an interest in certain business ventures, then conveying him a nearly worthless interest, and using his money as part payment for certain real properties they purchased. Besides monetary damages, the plaintiff asked for the imposition of a constructive trust or equitable lien on those real properties. He simultaneously filed notices of lis pendens under § 42-1207 to evidence the interest he claimed in the real estate.
The sole issue before this motions division is whether the order granting the motion to cancel and release these notices is appealable, even though it is not "final." See D.C.Code § 11-721(a)(1) (2001).[1] We hold that it is appealable under the collateral order doctrine. See generally Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949).
Under the collateral order doctrine, interlocutory orders are appealable if they (1) conclusively determine a disputed question of law; (2) resolve an important issue separate from the merits of the case; and (3) are effectively unreviewable on appeal from a final judgment.
In re Ti.B., 762 A.2d 20, 25 (D.C.2000); see also, e.g., Bible Way Church v. Beards, 680 A.2d 419, 425-26 (D.C.1996).
First, in moving to cancel the lis pendens notices, the defendants contended that a mere request for imposition of a constructive trust or equitable lien on property as part of the relief requested in a suit is not enough to justify filing a notice of lis pendens. The trial court agreed with that position and granted their motion, thereby "conclusively determin[ing]" that legal issue for purposes of this case. Further, the issue resolved by the judge's order is separate from the merits of the plaintiff's underlying suit for fraud and breach of contract or fiduciary duty. In granting the motion to cancel, the judge reasoned as follows:
First, McAteer is seeking legal remedies in addition to equitable relief, and he does not claim that either money damages (to make him whole), or restitution (to prevent unjust enrichment) will not be an adequate remedy. [Citation omitted.] And without a showing that a money recovery is inadequate, McAteer is not entitled to a constructive trust or equitable lien on the land. Therefore, under these conditions, the court considers the paralyzing result of a notice of lis pendens overly harsh to Global Anacostia.
Second, even if the court eventually reaches the question of whether a constructive *1170 trust or equitable lien on the land at issue is warranted, to get that relief, McAteer must then prove that the acquisition of the land is "traceable to the wrongful behavior." [Citation omitted.] At this stage in the proceedings, McAteer's theory that the defendants purchased the [property in question] with his funds is based on information and belief, not proof. Therefore, the court considers the mere allegation of a right to a constructive trust or equitable lien insufficient to place a cloud on the title to that land.
The correctness of this analysis is not before us, but what is apparent is that deciding that question will not involve this court in consideration of the merits of the plaintiff's underlying suit. Although the trial judge, in cancelling the notices, considered the nature of the relief the plaintiff was seeking, that had nothing to do withand, if reviewed on appeal, would have nothing to do withwhether the allegations of fraud and breach of contract or fiduciary duty alleged in the complaint are true.
Further, the operative language of the District's lis pendens statuteproviding for notice to be given of the pendency of an action "affecting the title to or asserting a mortgage, lien, . . . or other interest in real property," § 42-1207(a)has not been interpreted by this court thus far,[2] so that a decision in this case discussing the conditions necessary to justify a lis pendens may give helpful (i.e., "important") guidance to the trial court and to parties beyond those involved in this case.
Finally, if the order cancelling the lis pendens notice is not reviewable at this time, it may be effectively unreviewable at all. The plaintiff contends, and the defendants do not dispute for present purposes, that efforts have been made to transfer or encumber the real properties in question efforts the lis pendens may have had some role in preventing. The risk that property will be transferred before litigation affecting an interest in it is concluded is part of the raison d'etre of the lis pendens statute.
For these reasons, we agree with other jurisdictions that have found orders cancelling or expunging a notice of lis pendens to be appealable. As the Supreme Court of Hawaii explained:
An order expunging a lis pendens meets the three criteria [of the collateral order doctrine]. The order conclusively resolves whether the lis pendens should or should not be cancelled because nothing further in the suit can affect the validity of the notice. The order cancelling the lis pendens does not address the merits of the underlying claim. And if the movant had to wait until final judgment on the underlying claim, the realty could be sold before the issue was resolved, thereby rendering the order unreviewable.
Knauer v. Foote, 101 Hawai`i 81, 63 P.3d 389, 393 (2003). See also Scroggins v. Edmondson, 250 Ga. 430, 297 S.E.2d 469, 472 (1982); Keith v. Bratton, 738 F.2d 314, 316 (8th Cir.1984); Chrysler Corp. v. Fedders Corp., 670 F.2d 1316, 1318 n. 2 (3d Cir.1982); Suess v. Stapp, 407 F.2d 662, 663 (7th Cir.1969).[3]
*1171 Accordingly, because we have jurisdiction under the collateral order doctrine, this appeal may proceed.
So ordered.
NOTES
[1] An order is final for appeal purposes only if it disposes of the entire case as to all parties and all claims on the merits. See In re Estate of Tran Van Chuong, 623 A.2d 1154, 1157 (D.C.1993). As the plaintiff's underlying suit is ongoing, the disputed order is not final, a point on which the parties agree.
[2] The statute was enacted in 2001. In our lone published decision construing the statute, Trustee 1245 13th St., NW # 608 Trust v. Anderson, 905 A.2d 181 (2006), we held that the mere filing of a foreclosure action, rather than the notice required by § 42-1207(a), is insufficient to invoke lis pendens in the District of Columbia.
[3] In two distinguishable decisions, courts have held that cancellation of a notice of lis pendens was not appealable. Orange County v. Hongkong & Shanghai Banking Corp., 52 F.3d 821 (9th Cir.1995); Demenus v. Tinton 35, Inc., 873 F.2d 50 (3d Cir.1989). The lis pendens statutes in those cases required the filer of the lis pendens notice to establish probable cause or "probable validity" as to success on the merits in the underlying action. The District of Columbia statute does not have that requirement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601043/ | 391 So.2d 1024 (1980)
Gus N. JEBELES
v.
Gus V. COSTELLOS.
Gus V. COSTELLOS.
v.
Gus N. JEBELES.
79-552, 79-589.
Supreme Court of Alabama.
December 19, 1980.
Douglas Corretti and Samuel Maples of Corretti, Newsom & Rogers, Birmingham, for appellant Gus N. Jebeles-79-552 and for appellee Gus N. Jebeles-79-589.
Tommy Yearout of Lorant, Harris & Yearout, Birmingham, for appellee Gus V. Costellos-79-552 and for appellant Gus V. Costellos-79-589.
SHORES, Justice.
This is an appeal and a cross-appeal by two business partners from a final decree *1025 rendered in a case brought by one of the partners seeking an accounting and dissolution of the partnership. The court ordered an accounting, but refused to dissolve the partnership. The court made the following findings of fact:
Plaintiff and Defendant, brothers-in-law (up to the time of a divorce between Plaintiff and his wife, the sister of Defendant) entered into an oral partnership agreement on or about September 2, 1977 under the business name of "Dino's Hot Dogs" at a location on Montgomery Highway in Jefferson County, Alabama, which said location is highly advantageous and valuable to this going business. The lease to the premises was procured, largely, through the efforts of Plaintiff. Plaintiff has been, for a number of years, the owner of other establishments of like nature and has developed an expertise in the conducting of this type of business enterprise. Also Plaintiff has furnished to the partnership a logo which is utilized by the partnership. The Plaintiff is senior, by number of years, to Defendant. The partnership was created at a time when a happy family relationship existed between the members of the separate families of Plaintiff and Defendant and this condition existed until a time when marital difficulties began between Plaintiff and his wife, the sister of Defendant. When these difficulties began to develop a rift was created between Plaintiff and Defendant. At about the time of the divorce proceedings, the Defendant [in January, 1979] ceased to remit any sums to Plaintiff as his share of the profits of the partnership, changed the locks on the doors to the establishment and has failed or refused to furnish Plaintiff with an accounting of the partnership business. It is clear to the Court from the evidence that the Defendant devoted nearly all of his time to the operation of the business and that the Plaintiff devoted relatively little time thereto. At a time when the partnership was first instituted and the parties and their families were happy with one another, a loose arrangement was made between Plaintiff and Defendant relative to the work hours which each of them would devote to the business and there has never been (according to the evidence) any fixed arrangement, either orally or in writing, as to how many hours and on what days each partner should work at the business location....
The business, continually and up to the present time, is operating six days a week under the management of Defendant and is operating profitably....
Because of the unhappy and hostile attitude that exists between Plaintiff and Defendant, and their respective families, it is evident that these two men cannot engage in a business undertaking in a manner which would occasion the contacts that normally exist between partners in an active business....
The partnership business premises are leased, under a joint written lease, for an extended period of time, with a right and option to renew. Both parties are, of course, subject to the benefits and the liabilities of that lease and this situation will continue during the life of the lease, which, very probably, is the most valuable asset of the partnership and is not transferable without the written consent of the lessor.
On November 19, 1979, Jebeles filed his complaint seeking a dissolution of the partnership and a full and complete accounting by Costellos for all profits received since December 3, 1978. Costellos counterclaimed that there was no partnership agreement, but that, if there was one, Jebeles breached it.
The court did not dissolve the partnership. Instead, in order to retain the business's future profits and the valuable lease, the court continued the partnership "with Defendant as the sole active partner and the Plaintiff as a silent partner." The court deemed it "just and fair that in this partnership the work hours of the respective parties should be entirely, or very nearly, identical," but found that under the circumstances
such an arrangement is not feasible, nor is it to the best interest of either party.
*1026 The Plaintiff is entitled to a continuing share in the partnership profits, but only to the extent set forth hereinafter. These benefits accrue to him by virtue of the contributions made by him to the partnership as stated hereinbefore.... However, it is the business of this Court, in the exercise of the powers and duties of a Chancellor in Equity, to settle the issues between the parties in a manner which would be most beneficial to the parties and would most fairly deal with the past and future profits of the partnership business.... [The parties'] respective interests are equal, that is, fifty-fifty (50-50).
Thus, the court ordered:
ONE: The partnership shall continue and is not dissolved and, from the date of this decree forward, the partners shall share in the net profits, after payment of all expenses, as follows: Twenty percent (20%) to the Plaintiff (without salary) and eighty percent (80%) to the Defendant (without salary).
TWO: All of the assets of the partnership, whether real, personal or mixed in nature, including the goodwill of the partnership shall be the property of the parties in the manner following: One-half (½) thereof to Plaintiff and one-half (½) thereof to Defendant; and nothing which is contained in the other portions of this order shall derogate from these interests.
THREE: There is a necessity that an accounting be had between the partners and the cause is referred to ... [a] Special Master to conduct an accounting between the parties on the basis of a fifty-fifty (50-50) partnership arrangement up to the date of this decree. From the date of this decree the arrangement as set forth in paragraph ONE, above, shall obtain and continue for the life of a contract of partnership. From the date of this decree, under the new distributive arrangement, the Defendant shall render to Plaintiff a monthly statement of profits and losses along with payment to Plaintiff of any distributive share which may be due to him.
FOUR: The aforementioned Special Master shall render his report to the Court, upon completion, and no transcript of the proceedings before the Special Master shall be made by the Special Master unless requested, in writing, by either party. The costs of the services of the Special Master shall be taxed as a part of the costs of court in this cause....
FIVE: The costs which have accrued to date and which shall accrue hereafter are taxed as follows: One-half (½) to Plaintiff and one-half (½) to Defendant.
Both parties appealed from the court's decree. We hold that the court erred by refusing to dissolve the partnership and order a termination and accounting. We reverse the decree and remand the cause for proceedings consistent with this decision.
The court here has exceeded its discretion by fashioning a remedy which is at odds with the Alabama law of partnerships, as codified in Ala. Code 1975, § 10-8-1 et seq., and the express will of the parties. An equity court cannot ignore established law in shaping its remedy, 27 Am.Jur.2d Equity § 123 (1966).
As no definite term was specified in the oral partnership agreement, the partnership may be dissolved at the will of either party. Ala. Code 1975, § 10-8-91(1)b:
Dissolution is caused:
(1) ...
b. By the express will of any partner when no definite term or particular undertaking is specified....
On application by either party, the court is required to order a dissolution under the provisions of § 10-8-92. Several of the grounds set out in that section are applicable to this situation in view of the court's findings.
A partner's right to an accounting of his interest accrues at the date of dissolution, Ala. Code 1975, § 10-8-98. There can be no partnership settlement or accounting until there is a dissolution. See Hunter v. *1027 Parkman, 259 Ala. 596, 67 So.2d 797 (1953); Tanner v. Easter, 290 Ala. 208, 275 So.2d 640 (1973). The court erred to reversal in ordering an accounting without dissolving the partnership and in establishing and imposing a new partnership agreement on the parties.
On remand the court should follow the procedure for dissolution of the partnership as set out in § 10-8-97.
REVERSED AND REMANDED.
TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601060/ | 379 N.W.2d 524 (1986)
STATE of Minnesota, Appellant,
v.
Stanley Paul OLSON, Respondent.
No. C5-84-1105.
Supreme Court of Minnesota.
January 3, 1986.
*525 Hubert H. Humphrey, III, Atty. Gen., St. Paul, Robert M.A. Johnson, Anoka Co. Atty., Marcy C. Crain, Asst. Co. Atty., Anoka, for appellant.
C. Paul Jones, State Public Defender, Mark F. Anderson, Asst. State Public Defender, Minneapolis, for respondent.
Considered and decided by the court en banc without oral argument.
COYNE, Justice.
This is a sentencing appeal by the state, with our permission, from that part of the decision of the court of appeals in State v. Olson, 361 N.W.2d 899 (Minn.App.1985), reducing defendant's sentence from 73 months to 61 months.[1] We reinstate the original sentence.
A district court jury convicted defendant of receiving stolen property valued at $1,000 or more, a violation of Minn.Stat. § 609.53, subd. 1 (1984):
Subdivision 1. Penalty. Any person who receives, possesses, transfers, buys or conceals any stolen property or property obtained by robbery, knowing or having reason to know the property was stolen or obtained by robbery, may be sentenced as follows:
(1) If the value of the property is $1,000 or more, to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both;
(2) If the value of the property is less than $1,000, but more than $300, to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both;
(3) If the value of the property is $300 or less, to imprisonment for not more than 90 days or to payment of a fine of not less than $700, or both;
*526 (4) Notwithstanding the value of the property, if the property is a firearm, to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.
For sentencing purposes, the Sentencing Guidelines deal with violations of section 609.53, subd. 1(1) at two different severity levels: if the value of the property was more than $2,500 at the time of the crime, the offense is classified as a severity level VI offense; if the stolen property was worth at least $1,000 but not more than $2,500, the offense is listed at severity level V. In this case the maximum presumptive sentence to which the defendant, who had a criminal history score of more than six and also a custody status point, was subject was either 73 months or 61 months, depending on whether sentence was imposed according to offense severity level VI or V.[2] At the time of sentencing defendant's counsel argued that it was unfair to penalize the defendant more severely on the ground that the value of the stolen property exceeded $2,500 because the jury found only that he was guilty of receiving stolen property valued at $1,000 or more. There had been no request for a special interrogatory requiring the jury to determine whether or not the value of the stolen car was more than $2,500. Defendant's counsel had, however, declined the offer of a sentencing hearing on the value of the stolen car, conceding that a hearing was pointless because the evidence would be that the value of the car was well over $2,500. The trial court determined that the value of the stolen property exceeded $2,500 and imposed the 73-month sentence.
Stating that a defendant has no duty to request an additional interrogatory that might result in the imposition of a longer sentence, the court of appeals reduced the sentence from 73 to 61 months because of the trial court's failure to submit to the jury, sua sponte, the question whether or not the property was worth more than $2,500. The court of appeals declared that it was the state's duty to request such an interrogatory and that in the absence of a jury determination that the value of the stolen property exceeded $2,500, the trial court's determination of value for sentencing purposes constituted a violation of constitutional guarantees against double jeopardy.
There is, however, no double jeopardy issue involved here. We start with the general rule that it is the jury's function to decide whether the defendant is guilty or not guilty of the crime charged and that it is the trial court's function to make any findings of fact bearing on the sentence to be imposed for the offense of which the defendant is found guilty. The statute, not the sentencing guidelines, describes the crime. Section 609.53, the statute making the receipt of stolen property a crime, divides the offense into three categories based on the value of the stolen property and sets out the maximum sentence applicable to each category. The legislature clearly contemplated that the jury would determine the value of the property within this classification scheme[3], and so it did. The jury found the defendant guilty of receiving stolen property having a value of $1,000 or more.
The statutory sentence provided for the offense determined by the jury reposes broad discretion in the trial court imprisonment for not more than ten years or a fine of not more than $20,000, or both. It is no doubt fair to say that the length of the sentence meted out in the exercise of that discretion has traditionally depended, at least in part, on the value of the stolen property. The discretion accorded the trial court by the statute has, however, been greatly circumscribed by the sentencing *527 guidelines. Embodying the principle that a rational and consistent sentencing policy requires that the severity of sanctions increase in direct proportion to increases in the severity of criminal offenses and the severity of criminal histories of convicted felons, the sentencing guidelines incorporate a recognition that the seriousness of the conduct underlying theft, forgery, and related crimes depends on the value of the property involved ranking receiving stolen property as a severity level VI offense if the property value exceeds $2,500 and as a severity level V offense if the property is worth from $1,000 to $2,500.
Consistent with the rule that it is the trial court's function to make any findings of fact bearing on sentencing, we have held that it is for the trial court to resolve factual disputes bearing on the exercise of its discretion to depart from the presumptive sentence in appropriate cases. State v. Winchell, 363 N.W.2d 747 (Minn.1985).[4] Also consistent with the general rule, we have held that it is the trial court's role to resolve any factual dispute bearing on the defendant's criminal history score. State v. McAdoo, 330 N.W.2d 104 (Minn.1983). When the trial court sentenced the defendant pursuant to severity level VI, it did not in effect try the defendant a second time and find him guilty of a more serious offense. The trial court simply took cognizance of a fact bearing on the ranking of the offense of conviction for sentencing purposes. Defendant still stands convicted only of the offense of receiving stolen property valued at $1,000 or more.
Neither can we perceive any reason to depart from application of the customary principles of waiver and forfeiture. The argument that one can never waive the right to challenge excessive punishment is misplaced. We are not dealing here with the right to challenge excessive punishment but with the opportunity to have the jury rather than the trial court decide certain facts bearing only on the sentence.[5] Furthermore, the evidence in this case was such that the defendant could not have been prejudiced by the failure to ask the jury whether or not the stolen car was worth more than $2,500. The owner of the car testified that when it was stolen on June 22, 1983, his 1982 model Pontiac was worth $5,500 the N.A.D.A. book value and the amount his insurer would pay. The defendant made no attempt to dispute this valuation and, in rejecting a sentencing hearing on value, tacitly conceded its correctness.
It may be that in an appropriate case involving an offense under section 609.53 the trial court should, on the request of either the defendant or the state, submit a special interrogatory inquiring whether or not the value of the stolen property exceeded $2,500.[6] This, however, is not *528 such a case. By failing to request a special interrogatory, the defendant has waived his right to complain that such an interrogatory was not submitted to the jury, and in any event nothing in the evidence required its submission. Accordingly, we reverse the reduction of defendant's sentence by the court of appeals and reinstate the original sentence imposed by the trial court.
Reversed in part; original sentence reinstated.
AMDAHL, C.J., and SCOTT and YETKA, JJ., concur.
SCOTT, Justice (concurring in the judgment only).
Although I agree with the majority's final disposition of this case, I disagree with its assertion that "in an appropriate case * * * the trial court should * * * submit a special interrogatory inquiring whether or not the value of the stolen property exceeded $2,500." Majority, at 527. The courts of this state have never adopted the use of special interrogatories in criminal cases and I believe that, for the reasons set out below, it would be improper for this court to adopt such a rule in this case.
A special interrogatory is improper in this particular case because the factual determination here involves a question of sentencing. It is the law of this state, which the majority recognizes, that "it is the jury's function to decide whether the defendant is guilty or not guilty of the crime charged and that it is the trial court's function to make any findings of fact bearing on the sentence to be imposed for the offense of which the defendant is found guilty." Majority, at 526-527. This rule has been recognized by the American Bar Association in promulgating its Standards for Criminal Justice:
Sentencing involves a judicial function, and the jury's role should not therefore extend to the determination of the appropriate sentence.
III ABA Standards for Criminal Justice, Standard 18-1.1 (1980). I find it inconsistent that the majority would recognize this rule and yet still be willing to allow special interrogatories to be submitted on sentencing questions "in appropriate cases." To establish such a rule impedes the trial court's function of "mak[ing] any findings of fact bearing on the sentence to be imposed," and significantly alters the law of this state.
A more compelling reason for not allowing special interrogatories to be submitted in criminal cases is that such a rule would be a radical departure from the established practice in criminal cases in this state. It is the sole function of the jury to determine guilt or innocence on the specific counts submitted to it. Allowing special interrogatories to be submitted in criminal cases would cause problems that are faced in civil jury verdicts to arise in criminal cases. One such problem is an inconsistent verdict, where the jury's answers to the special *529 interrogatories cannot be reconciled with its final verdict. While such inconsistencies can be tolerated in civil cases, they cannot be tolerated in a criminal case dealing with the guilt or innocence of an individual. This state has avoided such problems by not allowing special interrogatories to be submitted in a criminal trial.
Even if special verdicts were allowed in criminal cases, it would be unwise for this court to establish such a practice in a judicial opinion where the precise boundaries of their use cannot be adequately prescribed. The majority attempts to bound the use of special interrogatories by allowing them to be used only in the "appropriate case" and under a certain procedure. Such boundaries, however, are in essence "boundless" because they give inadequate guidance to courts and counsel concerning the use of special interrogatories. The "appropriate case" is undefined and is therefore an inadequate standard for criminal cases. It also conflicts with the intentional specificity of the Rules of Criminal Procedure adopted in Minnesota.
A more prudent approach for this court to adopt would be to defer judgment on the use of special interrogatories in this case and refer the issue to the Supreme Court Advisory Committee on Rules of Criminal Procedure. The committee can then fully consider the issue, determine whether special interrogatories should be used in criminal cases, and establish more precise guidelines for their use. In this way, the court can keep the rules of criminal procedure precise and specific and thereby protect both the accused and the community in a criminal trial.
AMDAHL, Chief Justice.
I join in the special concurrence of Justice Scott.
YETKA, Justice.
I join in the special concurrence of Justice Scott.
NOTES
[1] We denied the petition of defendant for review of that part of the decision affirming his conviction.
[2] These durations are 3 months more than the maximum durations shown on the grid because Minnesota Sentencing Guidelines and Commentary II.B.2. (1984) increases the presumptive sentence duration by 3 months when the defendant has a custody status point and the criminal history score without that point is six or more. Defendant's criminal history score without the custody status point was fourteen.
[3] See Advisory Committee Comment to Minn. Stat.Ann. § 609.52, subd. 3 (West 1964).
[4] Specifically, we held that, when deciding whether or not to depart from the presumptive sentence, a trial court is not bound to accept the defendant's version of the crime according to the defendant's testimony at his guilty plea hearing.
More recently, in State v. Montjoy, 366 N.W.2d 103 (Minn.1985), we held that even though the defendant was charged with two counts of aggravated robbery one involving the use of a dangerous weapon and the other the infliction of bodily harm the trial court did not err in refusing to submit a special verdict form asking whether or not a dangerous weapon was used, and was correct in applying the longer minimum sentence provisions of Minn. Stat. § 609.11, subd. 5 (1984) based on the evidence that a firearm was used.
[5] The situation must be distinguished from that presented by State v. Cromey, 348 N.W.2d 759 (Minn.1984). Cromey was tried on separate counts of second degree intentional murder and second degree felony murder. Because both offenses were then ranked as severity level X offenses, the trial court submitted only a general verdict and the jury found the defendant guilty simply of second degree murder. Later, when felony murder was retroactively reclassified as a level IX offense, we reduced the sentence because it was impossible to tell from the verdict which of the two crimes the jury found the defendant had committed and the defendant's failure to object to the submission of the general verdict was excusable because the basis for conviction of second degree murder made no difference in the sentence.
[6] Ordinarily, in criminal cases a jury returns only a general verdict of guilty or not guilty of the crime charged, and the use of special interrogatories or special verdicts would, as the dissent points out, "be a radical departure from the established practice in criminal cases in this state." By its terms, however, Minn.Stat. § 609.53 (1984) forces the jury to answer questions on the value of the stolen property. The section first sets out the definition of the crime and then requires a value determination in order to set the maximum sentence. The jury is the finder of fact with regard to this value. See Minn.Stat.Ann. § 609.52 comment on subd. 3 (West 1964). The verdict form used in this case followed this format. First, the jury was to decide guilt or innocence and then, if the verdict was guilty, the jury was instructed to answer "yes" to one of three questions: Was the value of the property $1,000 or more? Less than $1,000 but more than $300? $300 or less? Inasmuch as the jury was required to make this determination, the addition of a fourth question, or a subpart to the first question, asking whether or not the value of the stolen property exceeded $2,500 would not seem a "radical departure" from established practice when the charge is receiving stolen property. In such a case, any attempt to instruct the jury to apply the beyond-a-reasonable-doubt standard in determining whether or not the defendant was guilty of receiving stolen property valued at $1,000 or more and a different standard in determining if the property was worth more than $2,500 could only confuse the jury. Thus, although technically the fair-preponderance-of-the-evidence standard should apply to the latter determination, the trial court should not so instruct the jury. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602242/ | 476 N.W.2d 172 (1991)
GN DANAVOX, INC., a Minnesota corporation, Respondent,
v.
STARKEY LABORATORIES, INC., a Minnesota corporation, Appellant.
No. C9-91-87.
Court of Appeals of Minnesota.
October 8, 1991.
Review Denied December 13, 1991.
*174 Sandra F. Gilbert, John D. Kosanda, Courey, Schwinn, Kodadek & Albers, P.A., Minneapolis, for respondent.
Lawrence T. Hofmann, Terese S. Wallschlaeger, Zelle & Larson, Minneapolis, for appellant.
Considered and decided by PARKER, P.J., and FORSBERG and AMUNDSON, JJ.
OPINION
AMUNDSON, Judge.
Starkey appeals from the trial court's order denying its post-trial motions for judgment notwithstanding the verdict (JNOV), remittitur, or a new trial. We affirm.
FACTS
Danavox and Starkey compete in the manufacture and sale of hearing aids. In early 1987 Danavox claims it received reports Starkey's telemarketers had informed customers Danavox was going out of business. About the same time, Starkey purchased a small number of used hearing aids from Danavox. The parties' correspondence shows Starkey intended to use the hearing aids as parts in its all-make repair facility.
In July, Starkey circulated a flyer to over 10,000 of the parties' mutual customers. Entitled "Danavox Liquidation," the flyer claimed Starkey had received "large quantities" of Danavox hearing aids "[d]irect from Denmark." At trial, Danavox introduced three dictionary definitions indicating the word "liquidation" means "going out of business." Danavox also stressed that only 365 hearing aids had been purchased by Starkey, a relatively small amount in the hearing aid industry, and that the phrase "direct from Denmark" implied Danavox no longer existed in the United States.
Following distribution of the flyer, Danavox received approximately 100 telephone calls from customers questioning whether it was still in business. Many of the calls reflected concerns whether Danavox could service or warrant its hearing aids. J. Stephen West, Danavox's president at the time, testified that if a customer begins to question whether a manufacturer will be able to fulfill a warranty, that customer will purchase from another company. Larry Griffith, Danavox's national sales manager, testified he received between 10 to 20 telephone calls from customers wanting to know what was happening to Danavox. Griffith further estimated that for every *175 customer who responds, 10 to 15 with similar concerns will not respond.
Gerald Gitles, the president of a competitor hearing aid company, testified he received about 20 inquiries from customers as a result of the flyer, asking if Danavox was going out of business. Steve Chargo, one of Starkey's telemarketing managers, testified customers had called him or people in his department asking whether Starkey had purchased Danavox or whether Danavox was going out of business. Customer Gregory Wales testified when he received the flyer he thought Starkey had bought Danavox and they were dumping the products.
Within a week after West learned of the flyer, he began to interview public relations firms because he had concerns that customers no longer believed in Danavox's long-term viability. West eventually hired Wallace Public Relations, Inc. West's testimony suggests it was during these interviews that Wallace recommended Danavox keep track of customer calls.
West prepared a log form sheet and directed his employees to record customer calls. He testified "I'm not sure whether [keeping the logs] was [Wallace's] idea or mine." The logs were kept for only one and one-half to two months, until the volume of calls decreased. West testified the logs were kept in the regular course of business, and were not made with the intention of preserving customer complaints for litigation.
After the flyer was distributed on July 18, 1987, West testified Danavox experienced a significant drop in sales in its total product base. Although Danavox had budgeted higher sales for July than June because the company was entering its historically highest sales period of the year, July sales dropped by 30 percent. West and current Danavox president William Herzog testified there was no reason for the drop in sales other than the Starkey flyer. West further testified Danavox had been operating profitably in the months preceding the flyer and fully expected that trend to continue.
Starkey's telemarketing manager Chargo testified he believed there was nothing wrong with sending out a flyer with the word "liquidation" next to a competitor's trademark and logo even with the certain knowledge it makes customers think the competitor is going out of business. Chargo indicated he would not hesitate to send out such a flyer in the future. William Austin, Starkey's president and sole shareholder, authorized release of the flyer. Austin's testimony also indicated he believed there was nothing wrong with the flyer.
Respondent GN Danavox, Inc. sued appellant Starkey Laboratories, Inc., alleging deceptive trade practices, defamation, intentional interference with business relations, false advertising, and consumer fraud. Danavox later amended its original complaint to include trademark infringement, breach of contract, and punitive damages claims.
During the trial, the court directed verdicts in Starkey's favor on the trademark infringement, interference with business relations, consumer fraud, and false advertising claims. By special verdict the jury awarded Danavox $4,729.20 on its breach of contract claim and $517,752 on its defamation claim. In addition, the jury found Starkey liable for deceptive trade practices. Accordingly, the trial court awarded Danavox $31,846 in attorney fees and $13,325.20 in costs, and permanently enjoined Starkey from engaging in further deceptive trade practices against Danavox. Finally, the jury found Starkey's defamatory conduct was in deliberate disregard of Danavox's rights and awarded Danavox $1.5 million in punitive damages.
ISSUES
1. Did the trial court err in admitting into evidence the logs kept by Danavox employees?
2. Did the trial court err in submitting the punitive damages issue to the jury or abuse its discretion in denying Starkey's motion for remittitur of the punitive damages award?
*176 3. Did the punitive damages award violate Starkey's right to due process guaranteed under the United States or Minnesota Constitutions?
ANALYSIS
I
1. Danavox initially argues Starkey failed to preserve the evidentiary issue it now raises because its notice of motion and motion for post-trial relief alleged no specific grounds under Minn.R.Civ.P. 59.01. However, Starkey objected at trial to admission of the logs and addressed the issue in its memorandum supporting the new trial motion. Consequently, Danavox was given an opportunity to respond, and the trial court could address the issue in its order and memorandum denying Starkey's new trial motion. Under these circumstances, Starkey preserved the issue for appeal. See Sauter v. Wasemiller, 389 N.W.2d 200, 201-02 (Minn.1986).
In addition, Danavox's argument that Starkey's memorandum in support of its new trial motion was untimely served is unpersuasive. Starkey met the time limit of Minn.R.Civ.P. 59.03, which merely requires notice of the new trial motion be served within 15 days of a general verdict.
2. Starkey contends the statements contained in the logs kept by employees were inadmissible hearsay. We disagree. The logs and the statements are not hearsay because they were not offered by Danavox to prove the truth of the matters asserted. See Minn.R.Evid. 801(c) ("hearsay" is defined as a statement offered to prove the truth of the matter asserted). Danavox offered the logs to show its customers were concerned it was going out of business, and to show why Danavox took steps to curb the flyer's negative effects, including hiring a public relations firm.
In addition, Starkey's argument that the trial court erred by failing to give the jury a limiting instruction lacks merit. Starkey neither objected to the trial court's hearsay instruction at the close of trial nor requested a more specific instruction. In fact, the court incorporated Starkey's proposed hearsay instruction into its own. Under these circumstances, the trial court did not err.
Even if the log's admission was erroneous, Starkey was not prejudiced. See Thurman v. Pepsi-Cola Bottling Co., 289 N.W.2d 141, 145 (Minn.1980) (party complaining of discretionary ruling must show prejudice). The logs and the statements therein were not crucial to Danavox's defamation claim; instead they were merely cumulative of other evidence showing that after the flyer's release, Danavox's sales dropped off, customers inquired about Danavox's stability, and a public relations firm had to be hired. Accordingly, the trial court did not err.
II
Starkey argues that the trial court improperly submitted the punitive damages issue to the jury. Punitive damages are allowed in civil actions "only upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others." Minn. Stat. § 549.20, subd. 1(a) (1990). Starkey advances three arguments to reverse or remit the punitive damages award, each of which we find unpersuasive.
Starkey first claims it never intended to imply Danavox was going out of business or to otherwise deceive the public. Its claim, however, is largely negated by the flyer itself, which contained so many misrepresentations it is difficult, if not impossible, to conclude they were unintended. Further, Starkey's other actions, such as having its telemarketers reporting Danavox was going out of business, suggest Starkey intended to injure Danavox. In short, the evidence showed that Starkey knew circulation of the flyer created a high probability of injury to Danavox's business, yet it acted with disregard for Danavox's probable injury. See Minn.Stat. § 549.20, subd. 1(b). Thus the trial court properly submitted the issue of punitive damages to the jury.
*177 Second, Starkey contends the punitive damages award was founded upon compensatory damages which were based on inadmissible evidence and irrelevant testimony. This argument is related to Starkey's previously rejected argument that the logs were inadmissible. As we have already concluded, the logs were corroborated by other evidence which tended to show the flyer negatively affected Danavox's business and reputation. We also find unpersuasive Starkey's argument that the $517,752 compensatory damage award is inflated and operates as a punitive damages award. While high, the jury's estimate of damages is supported by the evidence which showed Danavox suffered losses in sales, reputation, opportunity, and service business.
Third, Starkey argues the $1.5 million punitive damages award was based upon passion and prejudice. Starkey insists it was wrongly portrayed throughout trial as a large, rich company trying to eliminate its competition at any cost. This characterization, however, was supported by the conduct of Starkey employees and of its president at trial and during depositions. Accordingly, we accord deference to the trial court's decision and uphold the award. See Hake v. Soo Line Ry., 258 N.W.2d 576, 582 (Minn.1977).
III
Starkey finally argues the punitive damage award violated its right to due process. While Starkey failed to notify the attorney general as required by Minn. R.Civ.P. 24.04, the issue is important enough to warrant our consideration, and has been adequately briefed by the parties in the trial court and this court. See Elwell v. County of Hennepin, 301 Minn. 63, 73, 221 N.W.2d 538, 545 (1974).
In Pacific Mut. Life Ins. Co. v. Haslip, ___ U.S. ___, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991), the Supreme Court held that punitive damages awarded by an Alabama jury did not violate the fourteenth amendment's due process clause. In doing so, the Court stressed that the defendant was accorded procedural protections by adequate jury instructions, by post-trial procedure for scrutinizing the punitive damages award, and by the state's supreme court review. Id. at ___, 111 S.Ct. at 1046. The Court did note, however, that the $840,000 punitive damage award, which was more than four times the compensatory award, "may be close to the line" of constitutional impropriety. Id.
Starkey argues Minn.Stat. § 549.20, subd. 3 violates due process by permitting a jury to consider the financial condition of a defendant. In Haslip, the jury was not permitted, as a matter of state law, to consider or receive evidence of the defendant's wealth when it awarded punitive damages. Id. at ___, 111 S.Ct. at 1044. Financial position was, however, a factor which the trial court in Haslip considered when reviewing the propriety of the jury's award. Minn.Stat. § 549.20, subd. 5 similarly requires the trial and appellate courts to consider a defendant's financial condition when reviewing an award of punitive damages.
Starkey insists consideration of the defendant's financial condition does not advance the purpose of punitive damages, and breeds arbitrary and irrational deprivation of a defendant's property. We disagree. By having such financial information, a jury is better able to determine the amount necessary to punish or deter a defendant for its wrongful conduct. Cf. Johnson v. Ramsey County, 424 N.W.2d 800, 806-08 (Minn.App.1988) (trial court's remittitur of $300,000 punitive damage award to $50,000 upheld where jury was provided no specific information on defendant's ability to pay), pet. for rev. denied (Minn. Aug. 24, 1988).
Starkey also argues its due process rights were impaired by the trial court's failure to make specific findings when reviewing the punitive damages award. Minn.Stat. § 549.20, subd. 5. The trial court's memorandum and order denying Starkey's post-trial motions, however, incorporated a large portion of Danavox's post-trial memorandum, which addressed the necessary factors. This incorporation *178 and the remainder of the trial court's memorandum satisfy the findings requirement of the punitive damages statute.
DECISION
The order denying Starkey's motions for JNOV, remittitur, or a new trial is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602249/ | 476 N.W.2d 267 (1991)
The FIRST NATIONAL BANK OF EDEN, a corporation; Stanley Boe; and Jeannie R. Anderson, Plaintiffs and Appellants,
v.
Herman MEYER, (also known as Herman C. Meyer); Gladys F. Meyer; Gordon Phillips, doing business as Phillips Oil Co.; St. Luke's Midland Regional Medical Center, formerly St. Luke's Hospital, a corporation, doing business as Marshall County Medical Clinic, formerly Britton Medical Center; South Dakota Farmers Oil Co., Inc., a corporation; Suther Oil Co., Inc., a corporation; and Marshall County, a political subdivision of the State of South Dakota, Defendants and Appellees.
No. 17345.
Supreme Court of South Dakota.
Argued May 22, 1991.
Decided October 9, 1991.
*268 Carlyle E. Richards of Carlyle E. Richards, P.C., Aberdeen, for plaintiffs and appellants.
Danny R. Smeins, Britton, for defendants and appellees South Dakota Farmers Oil Co. and Suther Oil Co.
MILLER, Chief Justice.
This is an intermediate appeal by First National Bank of Eden (Bank) from the trial court's denial of its motion for summary judgment. The summary judgment motion was in a quiet title action wherein Bank sought to quiet title to real property it acquired as a result of a tax deed proceeding. The trial court held that the tax deed notice statute was unconstitutional. We affirm.
FACTS
This legal controversy centers around three quarter sections of land in Marshall County, South Dakota, previously owned by Herman and Gladys Meyer.
In the spring of 1982, appellees South Dakota Farmers Oil Company and Suther Oil Company obtained money judgments against Herman Meyer and the same were appropriately docketed with the Marshall County Clerk of Courts. Under the provisions of SDCL 15-6-7, these judgments became a lien on all of Meyers' real estate, except their homestead (homestead rights are not at issue in this action).
In November, 1982, Bank loaned money to Meyers who executed a mortgage on the three quarter sections. This mortgage was properly filed and recorded.
Meyers did not pay the real estate taxes on said property for the years 19801985. Under the provisions of SDCL ch. 10-23, all property for which the taxes are delinquent is sold at an annual public auction. When there are no bidders on the property, the county treasurer bids off the property in the name of the county in the amount of the taxes, penalty, interest, etc. (SDCL 10-23-24) and issues a certificate to the county (SDCL 10-23-25). Apparently, there were no bidders on Meyers' property for the years in question, since the county held the tax certificate for those years.[1]
When Meyers' mortgage went into default, Bank started a foreclosure action and then discovered that it was not the first lienholder (even though it had constructive notice of the prior judgments by virtue of their docketing). Apparently, they were junior to eight prior judgments, including appellees. When it realized this, it "backed off" its foreclosure. The President of Bank then contacted Mr. Richards to see if there was anything they could do about recouping the loan through tax process, or a tax deed.[2]
On January 15, 1986, Bank obtained an assignment of the county treasurer's certificate covering delinquent real estate taxes assessed against Meyers' land, and paid the taxes.[3] On January 26, 1986, Bank commenced *269 proceedings to procure a tax deed on Meyers' real property. Pursuant to statute, Bank served written notice of its intent to take a tax deed on Meyers, Duane Johnson (the person in possession of the land), Marshall County, and itself. However, no notice, actual or constructive, was made upon judgment lienholders.[4] Ultimately, the Marshall County Treasurer issued Bank a tax deed which was duly recorded.
Bank, which ultimately sold the property under a contract for deed, commenced a quiet title action and named as defendants the Meyers and various judgment lienholders. This was the first notice that appellees received of the tax deed proceedings. Appellees answered the quiet title complaint, asserted the priority of their judgment liens and alleged that the tax deed proceeding was constitutionally deficient because of failure of Bank to give them notice.[5] Bank moved for summary judgment against appellees (the only answering defendants). The trial court, in denying said motion, held that South Dakota's statutory scheme for taking tax deeds was constitutionally deficient because it failed to provide notice to judgment lienholders.[6] We agree and thus affirm.
DECISION
Appellees' claims would normally be time-barred from challenging the validity of these tax deed proceedings under SDCL 10-25-44.[7] However, they received no notice until they were joined in the quiet title action, long after the statute of limitations would have barred their claim. For reasons stated herein, appellees were entitled to notice of the tax deed proceedings. We have held that failure to give notice of tax deed proceedings to those entitled thereto is a jurisdictional defect which tolls the statute of limitations until the notice is received. McQuown v. Field, 74 S.D. 200, 50 N.W.2d 358 (1951); Cain v. Ehrler, 36 S.D. 127, 153 N.W. 941 (1915). Therefore, we reach the merits.
1. Notice:
In Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, 70 S.Ct. 652, *270 94 L.Ed. 865 (1950), the United States Supreme Court, in determining what notice is constitutionally adequate to satisfy due process, stated:
The fundamental requisite of due process of law is the opportunity to be heard. This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.
. . . . .
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.
339 U.S. at 314, 70 S.Ct. at 657, 94 L.Ed. at 873 (citations omitted).
In Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the Court held that an Indiana statute which required the county auditor to post notice in the county courthouse of the sale of real property for nonpayment of property taxes, and to publish notice once each week for three consecutive weeks, was violative of the due process clause of the Fourteenth Amendment where there was no provision for notice by mail or personal service to mortgagees of the property. The Court determined that constructive notice to a mortgagee who is identified in the public records does not satisfy the due process requirement of Mullane, supra.
We hold that known or readily ascertainable judgment lienholders are entitled to the same notice as a mortgagee. Mennonite, supra; Verba v. Ohio Cas. Ins. Co., 851 F.2d 811 (6th Cir.1988).
2. SDCL ch. 10-25:
SDCL 10-25-3, at times salient to this appeal, provided:
The notice of intention to take tax deed shall be served upon the owner of record of the real property so sold, upon the person in possession thereof, and also upon the person in whose name the same is taxed and upon the mortgagee named in any unsatisfied mortgage then in force upon such real property of record in the office of the register of deeds of the county in which the same is located, and if any such mortgage shall have been assigned and the assignment thereof placed upon record in the office of the register of deeds, then upon such assignee in lieu of the mortgagee named in the mortgage. (Emphasis added.)
SDCL 10-25-3 did not require that notice be sent to all known or reasonably ascertainable judgment creditors.[8] It did not even provide for notice by publication. (And remember, notice by publication was held to be insufficient in Mennonite, supra, and Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988)).
Therefore, under the clear holdings by the United States Supreme Court, this statute (SDCL 10-25-3), in its prior form, was unconstitutional.
3. Prospective Application: We direct that the foregoing holding be applied prospectively only.
When determining whether a case holding should be applied prospectively, the *271 court considers the following factors: (1) the decision to be applied prospectively must establish a new principle of law by either, overruling clear past precedent on which litigants have relied, or, by deciding an issue of first impression whose resolution was not clearly foreseen; (2) the court must weigh the merits and demerits of each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation; and (3) the court must determine whether the decision would produce substantial inequitable results if applied retroactively. Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971); Fisher v. Sears, Roebuck & Company, 88 S.D. 1, 214 N.W.2d 85 (1974).
In Fisher, we noted that "[i]n Great Northern R. Co. v. Sunburst Oil & Ref. Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 [(1932) ], the United States Supreme Court declared that it was within the inherent authority of the highest court of any state to give prospective application to its decisions without offending any constitutional principles." Fisher, 88 S.D. at 4, 214 N.W.2d at 87. Therefore, it is within the inherent power of this court to declare, at the time of a decision, whether a case will achieve only prospective application. Id.
Considering the factors set forth in Chevron, supra, and recognizing that over the past many years several thousand acres of land have been acquired in this state through a good faith compliance with, and reliance upon, tax deed notice procedures, which we now find to be unconstitutional, substantial detriment could occur
were this holding to be given retroactive application.
Affirmed.
SABERS and AMUNDSON, JJ., concur.
HENDERSON, J., concurs specially.
WUEST, J., dissents.
HENDERSON, Justice (special concurrence).
Genius may be described as a deep capacity for taking pains with the subject at hand. Out of a great respect for lawyers, whose industry often knows no bounds, and often attains genius, I write this special concurrence, trusting that it will, somehow, someway, allay any efforts to circumvent in the future this decision concerning tax deeds. It is hoped by this writer that our decision, announced today, shall not spawn an eruption, either now, or in the future, of litigation and/or quiet title actions generally attacking title acquired by tax deeds or tax deed proceedings by my fellow South Dakotans.
Perhaps I should not fear so. Having been raised in the "Dirty 30's," and witnessed a mass exodus off the farms in Hand County, with many of our friends in the county having lost their land by taxes they could not pay, and later reacquired this land by and through tax sale proceedings and tax deeds, I confess a fear.[*] Franklin Delano Roosevelt in his First Inaugural Address on March 4, 1933, tried to quell the sadness and fear of this drought stricken and broke Nation with these words: "The only thing we have to fear is fear itself." Valiantly he tried to save the family farms which were being lost to taxesby the millionsand then placed in government ownership. He then aided us, as our leader, by the WPA, CCC, relief and many public work projects.
Mr. Chief Justice has obtained the necessary votes to give this decision prospective application. It is apparent that it is the considered judgment of this august body, by this decision declaring prospective application, that lawyers in South Dakota should not reach back, to find a boogeyman, i.e., a technical flaw, in tax sale proceedings and tax deeds to create "substantial inequitable results if applied retroactively," as expressed by this Court. (Citing Chevron and Fisher). In Beitelspacher v. Winther, 447 N.W.2d 347, 353 (S.D.1989) written as a majority opinion by this special writer, this Court approved the Fisher case *272 and cited a case therein, Vogt v. Billion, 405 N.W.2d 635 (S.D.1987) for this holding: "The Constitution neither prohibits nor requires retrospective effect of judicial decisions."
Very salient facts concerning this appeal: The Bank's tax deed was recorded on April 16, 1986; bank contends that neither the former owner, or anyone claiming through him, could interpose any defense to a quiet title action, after two years, namely April 16, 1988; the bank brought a quiet title action on May 9, 1990, just four years after it obtained a tax deed. There were 240 acres of agricultural land in question. Bank paid $4,680.98 in delinquent real estate taxes and statutory costs. Bank paid to the State of South Dakota the sum of $2,318.76 for its vendor's lien on the real estate. Total outlay by the Bank: $6,999.74 investment. Less than four months later, on August 1, 1986, Bank sold this property on a Contract for Deed for $60,000.00. On August 4, 1986, the Contract for Deed was recorded. Bank stands to make approximately $53,000.26 in profit, if it prevails in this appeal, for holding the tax deed for 107 days, from the date of acquiring title. No notice was given to the appellee lienholders, who had judgments. These judgments constitute a lien under SDCL 15-16-7 "... for ten years from the time of docketing the same where it was rendered, and no judgment shall become a lien on real property as herein provided unless it be docketed in the county where the land is situated." There is no question that appellee lienholders had liens perfected. South Dakota Farmer's Oil had a judgment for $85.50 and Suther Oil Co., Inc. had a judgment docketed for $3,525.07.
In the History of South Dakota, Third Edition Revised, June, 1975, by Dr. Herbert S. Schell, a renowned historian and esteemed professor at the University of South Dakota, who was one of my professors at that school, expressed in his textbook:
A concomitant of the hard times was a high incidence of tax delinquency. In 1935 nearly 19 per cent of the land was tax delinquent. By the time the depression had run its course the tax delinquency rate was ranging from 25 to 50 per cent in a number of counties, and title to large acreages had changed hands through tax deeds. In 1938 four counties in the northwestern section of the state had possession of over a million acres, title to which was acquired through county tax deeds.
From the archives of the South Dakota Historical Society, now located at the Cultural Heritage Center, in Pierre, I located a study by the South Dakota State Planning Board, Published by the Central Office of said Board at Brookings (site of one of our state colleges). This is denominated Tax Delinquency Status of Farm Land in South Dakota as of January 1, 1935; however, the date of the publication is July 1, 1937. General tenor of this article is to reflect, factually, upon the tremendous number of acres of tax delinquency in this state, and on page 7 thereof, we find:
Tax delinquency increased rapidly from 1928 to 1932 in this state. An indication of this trend is apparent in the following. Properties delinquent in 40 counties in South Dakota increased from 13,688 in 1928 to 45,122 in 1932 an increase of 230 per cent. Acreage involved in this delinquency increased 247 per cent and the amount of money involved increased 158 per cent. The reason the amount of delinquency did not increase to the degree the number and acreage increased was that the tax rate per acre had decreased very rapidly from 45 cents in 1928 to 32 cents in 1932.
One of the charts herein reveals that, of all the taxable lands in South Dakota, as of January 1, 1935, 26% thereof was subject to tax deed. It is instructive that the tax delinquencies for one year or more on January 1, 1935, contains as an example, 411,753 acres in Hughes County, county of our State Capital. Brown County had delinquencies of over 1 million acres, to wit: 1,047,033 acres. Three other counties had over 1 million acres in tax peril, through tax delinquencies. There were millions of acres in this state which were tax delinquent; and there were millions of acres taken by tax deed.
*273 Can we not conclude that, to this very day, there are millions of acres of land in this State which were acquired by tax deed? The answer is: A resounding yes.
So, now that the Supreme Court has declared unconstitutional the Notice of Intention to Take Tax Deed statute, i.e., SDCL 10-25-3, what effect does this have upon the millions of acres of land obtained by tax deed in the 1930's, 1940's, 1950's, 1960's, 1970's, and 1980's? First of all, the 1991 Legislative assembly has cured the notice defect. Thenceforth, all ascertainable creditors, via an amendment, must be notified (such as these appellees). By making the application of this decision prospective, a legal mind would believe that this ends it: The unconstitutional statute, hereafter, cannot be asserted as a weapon against a tax deed. However, the genius of lawyers, which I first alluded to, might well surface from the legal catacombs of cases decided in the early days of this Court. A case of antiquity is cited by the majority writer, namely, Cain, decided over 75 years ago, and McQuown, decided in 1951. Such decisions, tied in with our present decision, could trigger the genius to try to upset the applecart on tax deed titles throughout the state, taken over decades. "Out of this nettle, danger, we pluck this flower, safety." William Shakespeare: 1 Henry IV, II.iii. This is what I am trying to do; to pluck out of the laws of this state and its decisions, some safety from the nettle of danger. Safety, in land titles, is a must; for without it, the underpinning is so shaky, no peace of mind can exist, and calamity can befall those who have long believed that their title was perfectly sound.
With the above background, I first call to the attention of the Bar and Bench, SDCL 15-3-15, the subject of which is the "Vesting of title and payment of taxes for ten years under color of title." It expresses:
Every person in the actual possession of lands or tenements under claim and color of title made in good faith, and who shall have continued for ten successive years in such possession, and shall also during said time have paid all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements to the extent and according to the purport of his paper title. All persons holding under such possession by purchase, devise, or descent before said ten years shall have expired, and who shall have continued such possession and payment of taxes as aforesaid so as to complete said term of ten years of such possession and payment of taxes, shall be entitled to the benefit of this section. (emphasis supplied mine).
A careful reader will detect that this statute has two parts to it and I shall not unduly elaborate upon them. The key elements are color of title, possession for ten years, and payment of taxes for ten years. A tax deed held in good faith constitutes color of title. Murphy v. Pierce, 17 S.D. 207, 95 N.W. 925 (1903). Bad faith is never presumed; one who alleges that possession was under claim and color of title has the burden to prove bad faith. Andree v. Andree, 291 N.W.2d 788 (S.D.1980).
Conceded that the Supreme Court of this state has declared SDCL 10-25-3 unconstitutional in its prior form, certainly SDCL 15-3-15 has not been so declared. It is a viable statute, still on the books, and a haven for thousands of South Dakotans who own farms, ranches, or homes via SDCL 15-3-15. I likewise point out that SDCL 10-25-44 has not been struck down by this decision. Note that the language in the majority opinion, in its first two sentences under DECISION, indicates: "Appellee's claims would normally be time-barred from challenging the validity of these tax proceedings under SDCL 10-25-44." Immediately it follows with the sentence: "However, they (the creditors) received no notice until they were joined in the quiet title action, long after the statute of limitations would have barred their claim." Some notice is different than no notice. Certainly, the Bank in this case did not fulfill the ten year successive years in possession nor did it ever pay taxes on this land for ten years. See, salient facts, supra, this writing.
*274 Concerning the constitutionality of SDCL 15-3-15 and SDCL 10-25-44, a few cases are worthy of note:
Sedlacek v. S.D. Teener Baseball Program, 437 N.W.2d 866 (S.D.1989).
Quote: Strong presumption that laws enacted by legislature are constitutional is rebutted only when it clearly, palpably, and plainly appears that statute violates constitutional provision.
Quote: Party challenging constitutionality of statute bears burden of proving beyond a reasonable doubt that statute violates state or federal constitutional provision.
Homestake Min. Co. v. Johnson, 374 N.W.2d 357 (S.D.1985).
Quote: When considering a statute's constitutionality, it is presumed valid, and should be upheld unless clearly and unmistakably unconstitutional.
Simpson v. Tobin, 367 N.W.2d 757 (S.D.1985).
Quote: There is strong presumption in favor of constitutionality of statute, and such presumption is only rebutted when it appears clearly, palpably and plainly that statute violates provision of State Constitution.
Meierhenry v. City of Huron, 354 N.W.2d 171 (S.D.1984).
Quote: Legislative enactment is accorded a presumption in favor of validity and propriety and should not be held unconstitutional by judiciary unless its infringement of constitutional restrictions is so plain and palpable as to admit of no reasonable doubt.
I now cite 38 A.L.R.2d 986, 992 for the general proposition that:
It is a general rule that where a tax deed follows the ordinary form for such deeds, is executed by an official having general authority to make such deeds, and purports by apt words to convey land either described accurately, or so referred to as to permit its accurate identification, it will be color of title to such land under a general statute of limitations, although such deed is absolutely void, for any reason whatever, and although the cause of such invalidity appears upon the face of the deed.
There are two exceptions, however:
The exceptions to this rule are, first, where the tax purchaser is attempting to avail himself of the deed and statute and the evidence is such as to charge him with actual notice, as distinguished from constructive notice, that the deed was bad, and, second, where the statute the operation of which is relied upon gives a special definition of "color of title" stricter than its ordinary meaning and requiring at least prima facie title.
At 993 thereof, it is expressed:
In Colorado, Illinois, South Dakota, and Washington there are statutes which permit rights to be founded upon "color of title" or "claim and color of title" made in "good faith."
In California, Florida, South Dakota, and Wisconsin there are statutes of limitation based upon an entry upon land under "claim" of title, "exclusive" of other right, founding such claim upon a "written instrument," as being a "conveyance" of the property in question, with continuous possession under such "claim" for various periods. Under these statutes the rule seems to be that any invalid tax deed will constitute color of title without reference to the nature of the invalidity, or whether it appears on the face of the deed or by proof aliunde, unless the purchaser received it or took possession in actual bad faith.
The majority opinion has cited Cain, a 1914 case in this Court, which is the subject, with many other South Dakota cases on this subject, at 1051 of 38 A.L.R.2d. Tying in SDCL 15-3-15 concerning the "Vesting of title and payment of taxes for ten years under color of title," I submit said A.L.R. discussion of South Dakota law, in its entirety.
The South Dakota cases support the rule that, irrespective of whether a tax deed may be void on its face or through evidence dehors the record, it may be "color of title" if made in "good faith," in support of prescriptive title, under a statute permitting acquirement thereof if the *275 conditions quoted are present. Murphy v. Pierce (1903) 17 SD 207, 95 NW 925; Jackson v. Bailey (1905) 19 SD 594, 104 NW 268; Joy v. Midland State Bank (1910) 26 SD 244, 128 NW 147, mod on other grounds 28 SD 262, 133 NW 276; Cain v. Ehrler (1914) 33 SD 536, 146 NW 694.
The proposition that a void tax deed may constitute color of title in support of prescriptive title, under the statutory provision requiring "color of title" in "good faith," was apparently applied in Murphy v. Pierce (1903) 17 SD 207, 95 NW 925, although the land attempted to be conveyed was not subject to taxation by reason of ownership by an Indian, where the court said that the instrument "purported to convey title, and that is sufficient to constitute color of title."
In Cain v. Ehrler (1914) 33 SD 536, 146 NW 694, it was considered that a tax deed which upon its face appeared to be fair, but which actually was void in the sense that it did not divest the owner of the property of title because of failure of the holder of the tax sale certificate to give the statutory notice of the expiration of the period of redemption and to make and file a proper return thereof, may nevertheless constitute color of title in good faith as a basis for the founding of legal title under a ten-year statute of limitations defining title by adverse possession.
A tax deed which is void on its face because it shows that the grantor was a county which purchased it at public auction may nevertheless constitute color of title in support of title by adverse possession, and entitle the possessor of land thereunder to succeed in an action to quiet title if he shows that the requirements of adverse possession are fulfilled and that the former title has been extinguished. Joy v. Midland State Bank (1910) 26 SD 244, 128 NW 147, mod on other grounds, 28 SD 262, 133 NW 276.
In Jackson v. Bailey (1905) 19 SD 594, 104 NW 268, an action to quiet title based on a tax deed regular on its face and recorded for three years, although there was a jurisdictional defect consisting of an inadequate description of the property on the assessment roll (the recording act not curing jurisdictional defects), the court recognized that the acquirement of rights, if there had been possession for the statutory period under the statute conferring title upon one having "color of title" and paying the taxes in "good faith" for ten successive years, might not have been impossible had there been available sufficient information or admissible evidence to locate and identify the property. (emphasis supplied mine) (footnotes omitted).
My legal thesis is: A compliance under either of the two parts to SDCL 15-3-15, by meeting the three key elements which I have set forth above, permits every owner of real estate in South Dakota, holding title by tax deed, to indulge in the safe belief that, in the terms of the statute, he, she, or they "... shall be held and adjudged to be the legal owner of said lands...."
Peace, brother. Let there be peace in the valley and peace in the land.
WUEST, Justice (dissenting).
I respectfully dissent. I would overrule McQuown v. Field, 74 S.D. 200, 50 N.W.2d 358 (1951); Cain v. Ehrler, 36 S.D. 127, 153 N.W. 941 (1915) and cases cited therein. Cain was a 3-2 decision decided by this court on rehearing. Since that time, this court has followed it as precedent. In my opinion, the dissent is more rational than the majority opinion. The recording of a tax deed is notice to the world including any interested persons. Two years after the recording of a tax deed is adequate time for any interested persons to pursue any rights they may have. In providing stability to real estate titles and aiding tax collection, the Legislature did not violate anyone's due process rights when they enacted SDCL 10-25-44. These are different days and different times. It is time to dump the old line of cases spawned by Cain and its progeny.
Although I would not reach the other issues in this case, I do not disagree with the majority's treatment of them. Further, I share the concerns of Justice Henderson *276 regarding the stability of real estate titles as a result of the majority opinion.
NOTES
[1] As part of the annual tax sale proceedings, the Marshall County Treasurer published and posted notice of the pending sale and sent timely notice by mail to Meyers.
[2] Mr. Richards was not Bank's attorney when the Bank entered into the mortgage with Mr. Meyer.
[3] This was done pursuant to SDCL 10-23-28, which provides:
If any person is desirous of purchasing the interest of the county in the real property acquired by reason of the county treasurer buying the same for the county, he may do so by paying to the treasurer the amount of the taxes, penalty, interest, and costs of sale and transfer and all unpaid or subsequent taxes as specified in § 10-23-27, up to the date he so pays, and thereupon the treasurer shall issue a tax receipt and duplicate for such taxes, penalty, interest, and costs, which shall be entered upon his cashbook as other tax receipts; and he shall assign and deliver to such purchaser the certificate of purchase held by the county for such real property, which assignment and transfer shall convey unto such purchaser all the rights of the county, both legal and equitable, in and to such real property as much so as if he had been the original purchaser at the tax sale.
[4] As will be noted later, there was no statutory requirement for them to give notice to judgment creditors.
[5] The South Dakota Attorney General was notified of the challenge of the constitutionality of the notice statute but declined to appear in the action. SDCL 15-6-24(c) and Sharp v. Sharp, 422 N.W.2d 443 (S.D.1988).
[6] It should be noted that South Dakota has a "request notice" provision. (It was enacted in 1984, one year after Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), possibly in reaction thereto.) SDCL 10-23-2.2 provides, in pertinent part:
If any of the following persons has annually, on or before November fifteenth, on a form prescribed by the department of revenue:
(1) Requested that a notice of sale of the real property be sent to him; and
(2) Paid a three dollar fee to the county treasurer to cover the cost of sending the notice, the county treasurer shall, in addition to the notice required by § 10-23-2, send the notice of sale ... to any other person who has or claims an interest in the real estate. (Emphasis added.)
In Mennonite, 462 U.S. at 793 n. 2, 103 S.Ct. at 2708 n. 2, with reference to a similar statute, the Court stated:
Indian Code § 6-1.1-24-4.2 (1982), added in 1980, provides for notice by certified mail to any mortgagee of real property which is subject to tax sale proceedings, if the mortgagee has annually requested such notice and has agreed to pay a fee, not to exceed $10, to cover the cost of sending notice. Because the events in question in this case occurred before the 1980 amendment, the constitutionality of the amendment is not before us. (Emphasis added.)
[7] SDCL 10-25-44 provides:
No action may be commenced by the former owner or by any person claiming under him, to recover possession of any real property which has been sold and conveyed by deed for nonpayment of taxes or to avoid such deed, unless such action is commenced within two years after the recording of such [tax] deed; and no defense may be interposed or maintained by the former owner, or by any person claiming under him, in any action brought to quiet the title in the grantee in any tax deed, or by any person claiming under such grantee, in any tax deed issued and delivered by any county treasurer of any county in this state, unless such defense is interposed within two years after the recording of such tax deed in the office of the register of deeds of the county in which the real estate described in such tax deed is located. (Emphasis added.)
[8] In 1991 the legislature appropriately determined to amend this provision. SDCL 10-25-3 now provides:
The notice of intention to take a tax deed shall be served upon the owner of record of the real property so sold, upon the person in possession thereof, upon the person in whose name the property is taxed, upon the mortgagee named in any unsatisfied mortgage in force upon the real property of record in the office of the register of deeds of the county in which the property is located, and if the mortgage has been assigned and the assignment thereof placed upon record in the office of the register of deeds, then upon the assignee in lieu of the mortgagee named in the mortgage. The notice of intention to take a tax deed shall also be served upon any lienholder and other interested person as may appear from the records in the office of the register of deeds, the county treasurer or the clerk of courts. The county treasurer may obtain any title information necessary to identify persons who appear from the records to be interested in such real property as owners, mortgagees, lienholders or otherwise. (Emphasis added.)
[*] Many counties reinvested title to the landowners if the landowner would simply pay the taxes. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2480511/ | 936 N.E.2d 1226 (2007)
371 Ill. App. 3d 1201
PEOPLE
v.
GABB.
No. 1-05-0716.
Appellate Court of Illinois, First District.
February 23, 2007.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1551414/ | 6 F.2d 188 (1925)
VANDELL et al.
v.
UNITED STATES.
No. 100.
Circuit Court of Appeals, Second Circuit.
March 2, 1925.
James H. Vahey, of Boston, Mass., Ernest W. McIntyre, of Buffalo, N. Y., and Phillip Mansfield, of Boston, Mass., for plaintiffs in error.
William J. Donovan, Asst. Atty. Gen., for the United States.
*189 Before HOUGH, MANTON, and HAND, Circuit Judges.
MANTON, Circuit Judge.
The indictment charged that the International Railway Company was engaged in interstate commerce in its operation of an electric railway between the city of Buffalo, state of New York and the city of Niagara Falls, in the province of Ontario, Dominion of Canada, and that it was engaged in carrying freight and passengers in such interstate and foreign commerce. It set forth that the plaintiffs in error, with others, in violation of the act to protect trade and commerce against unlawful restraints and monopolies (26 Stat. 209 [Comp. St. § 8820 et seq.]) did willfully and feloniously engage in a conspiracy in restraint of trade and commerce among the several states and with foreign nations, to unreasonably obstruct, retard, restrain and impede, and interfere with and stop transportation in interstate and foreign commerce of such freight and passenger service. It alleges that it was part of the conspiracy to, on the 17th of August, 1922, obstruct, wreck, and destroy the track, roadbed, and roadway of the said International Railway Company at the village of Elwood, county of Erie, N. Y., by means of exploding dynamite, whereby the electric trains thus employed in transporting passengers and baggage traveling from states of the United States to the province of Ontario, Dominion of Canada, was interfered with, because the tracks were damaged and demolished. It was further alleged that it was part of the conspiracy to intimidate employees of the said International Railway Company, so that by intimidation and coercion they would not continue working for the railway company, and thereby prevent them from performing their duties to this common carrier so engaged in interstate and foreign commerce.
Six overt acts were set forth, the principal among them being the theft of dynamite from an arsenal in the city of Lockport; the storing and keeping of it in the city of Buffalo; placing it upon the tracks of the railway company in the village of Elwood and causing the explosion. In support of the indictment, there was evidence sufficient for the jury's consideration and supporting the verdict of guilty, showing that in the months of June, July, and August, 1922, excursionists from various states of New York, New Jersey, Pennsylvania, Delaware, Virginia, Washington, and Maryland passed over this railway, going to Niagara Falls, N. Y., and into the Dominion of Canada, upon through tickets. At this time there was a strike of the railroad employees. In August, 1922, 20 boxes of dynamite, of 50 pounds each, were stolen by a defendant (who was not on trial) and transported by Reilley from the city of Lockport to the city of Buffalo, N. Y., and Reilley and Breese placed the dynamite upon the tracks in the village of Elwood. On August 17, 1922, passengers boarded the cars of the International Railway Company at Buffalo on their way to Niagara Falls, and when passing through Elwood, N. Y., the cars were derailed by reason of an explosion of the dynamite, which had taken place on the tracks on which the cars were running. The evidence shows that Reilley, Smith, Vandell, and others were parties to the theft of this dynamite; that it was transported in automobiles by them and other defendants named in the indictment, who were not on trial, to the scene of this explosion. After the dynamiting, Reilley, in the presence of Breese, stated to witnesses that they had just dynamited the High Speed Line, saying: "We pulled off a job and we pretty near got caught. The motorcycle cop got after us."
There is evidence that an officer did pursue the plaintiffs in error, who were in an automobile, after leaving the scene of this explosion, having placed the dynamite on the tracks. Breese admitted to a witness that he took part in this dynamiting, and said that the strikers could win if the people were kept from riding on the cars and they had "a few more blow-ups like the one on the High Speed Line." When told that people were hurt on the night of the explosion, he replied: "Yes; there were. They were warned before they got on those cars, and if they had all been killed it would have served them right." It appears that, at the time some of the passengers boarded the cars, unidentified persons passed among the passengers and warned them against riding on the cars. There was testimony that in July, 1923, Reilley and Breese were passing the scene of the explosion in an automobile, and when one of the passengers remarked that "there is where the accident happened," Reilley replied, "Yes," and the speaker said, "What was your idea for doing it?" to which Reilley replied, "They had no proof that I done it;" and further, "Why, didn't you realize that human bodies was on that car? Did you figure your own folks being on it, your own mother?" to which Reilley replied, "I didn't give a God damn." There was sufficient to circumstantially establish a conspiracy as charged and the overt acts in carrving *190 out its purposes. The theft of the dynamite, its transportation to Buffalo, its concealment, the explosion, flight on the part of the defendants from the scene of the explosion, and the various admissions referred to, fully warranted the trial court in submitting this question to the jury. Each of the defendants who stand convicted are sufficiently connected by the proofs with the commission of the crime.
Various errors are assigned. We shall note those which have been argued. The International Railway Company is a common carrier and engaged in interstate commerce. International R. Co. v. Davidson, 257 U. S. 506, 42 S. Ct. 179, 66 L. Ed. 341; International R. Co. v. United States, 238 F. 317, 151 C. C. A. 333. It is argued, however, that the indictment sets forth a substantive offense, which, by the laws of the state of New York, is a felony, and that the lesser offense of conspiracy is merged in the greater, and it is submitted that therefore the indictment is bad, because the offense of conspiracy is merged in the felony as set forth in the overt acts of the indictment, and that there may be no prosecution in the national courts. This argument may not prevail. The defense of conspiracy to violate the federal statute is in no way affected by the fact that what was done in furtherance of that conspiracy was an offense against the state sovereignty. Conspiracy may be a crime in one jurisdiction and a complete offense in another. The District Court of the United States is not ousted of jurisdiction because the defendants may also have violated a law of the state of New York. It often happens that a defendant can be punished in both the United States and the state courts, and a conviction in one not a bar to prosecution in another. United States v. Lanza, 260 U. S. 377, 43 S. Ct. 141, 67 L. Ed. 314.
It is next argued that there is not sufficient set forth in the indictment to constitute a violation of the statute. But the provisions of the Act of July 2, 1890, c. 647, 26 Stat. 209, apply to all classes without exception. It is intended to punish alike monopolies of capital and acts of labor, whenever interstate trade is thereby directly restrained. A conspiracy under the act remains a conspiracy punishable under the laws of the United States, without regard to the position or status of the offenders. Gompers v. Buck's Stove Co., 221 U. S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874; Duplex Printing Co. v. Deering, 254 U. S. 443, 41 S. Ct. 172, 65 L. Ed. 349, 16 A. L. R. 196; United States v. Railway Employees' etc. (D. C.) 283 F. 479. A conspiracy by striking employees becomes a federal offense under the law, whenever that conspiracy necessarily and directly impedes the channels of interstate commerce. In re Debs, 158 U. S. 564, 15 S. Ct. 900, 39 L. Ed. 1092; United States v. Cassidy (D. C.) 67 F. 698; United States v. Elliott (C. C.) 64 F. 27. Indeed, the Sherman Act makes the conspiracy an offense against the national law. Knauer v. United States, 237 F. 8, 150 C. C. A. 210; Ryan v. United States, 216 F. 13, 132 C. C. A. 257.
Two witnesses testified that, before the train started, they saw a man walking around among the passengers, and heard him say something would happen to the train, and warned passengers not to board the cars. This testimony was admitted, subject to connection. It was subsequently connected sufficiently by the testimony of a witness who said that the plaintiff in error Breese stated: "They were warned before they got on those cars, and if they had all been killed it would have served them right." It thus appears that this plaintiff in error had knowledge of the giving of the warning, and that made the circumstance of its having been given competent evidence in the establishing of the conspiracy. The order of proof was discretionary with the trial court. Spencer v. Read, 217 F. 508, 133 C. C. A. 360.
Complaint is made of the latitude given to counsel for the government in his examination. One of the witnesses was permitted to testify on his cross-examination whether he had ever heard the union officials advise violence, and on redirect examination he was asked if he had ever heard the same officials condemn this explosion after it had taken place. In view of the question asked on cross-examination, it was proper to permit this question on redirect. Mahoning Ore Co. v. Blomfelt, 163 F. 827, 91 C. C. A. 390.
A careful examination of this record satisfies us that, of all the errors assigned, there is none warranting our reversing the judgment of conviction.
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601062/ | 391 So.2d 813 (1980)
STATE of Louisiana
v.
Jerry L. DEVITO.
No. 67261.
Supreme Court of Louisiana.
July 8, 1980.
On Rehearing December 15, 1980.
Joseph J. Tosh, Gretna, for defendant-relator.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-respondent.
BLANCHE, Justice.
We granted writs on defendant/relator's application to consider whether, during his *814 incarceration in a New Jersey prison, prescription ran on the state's prosecution against him for armed robbery.
On October 3, 1976, a warrant was issued for relator's arrest charging that he had committed a robbery in Jefferson Parish on October 1, 1976. A telegram dated February 12, 1977 from Monmouth County, New Jersey law enforcement authorities advised the Jefferson Parish Sheriff's Office of relator's whereabouts, namely, that he was being detained in the Monmouth County Jail. On February 16, 1977, some four days later, prosecution was instituted against relator by the filing of a bill of information by the District Attorney of Jefferson Parish. Relator bases his claim of prescription on La.C.Cr.P. art. 578, which provides:
"Except as otherwise provided in this Chapter, no trial shall be commenced: (1) In capital cases after three years from the date of institution of the prosecution; (2) In other felony cases after two years from the date of institution of the prosecution; and (3) In misdemeanor cases after one year from the date of institution of the prosecution. The offense charged shall determine the applicable limitation."
Thus, it appears that in this non-capital felony case, since the prosecution was instituted by filing a bill of information on February 16, 1977, no trial of petitioner would be permitted after February 16, 1979 unless some fact operated to interrupt that prescriptive period under the provisions of La.C.Cr.P. art. 579. That article provides:
"The period of limitation established by Article 578 shall be interrupted if: (1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or (2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.
"The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists."
The state suggests that indeed, prescription was interrupted because defendant's presence at trial could not be obtained for reasons beyond the control of the state. The state submits that relator would not waive extradition and that the state made a good faith effort to extradite him. While we do not impune the good faith of the state, the record reveals that relator was not extradited to Louisiana and his trial commenced within the prescriptive period of two years from the date of the filing of the charges against him because of the state's fault.
From the documentary evidence which appears in the record, we are of the opinion that the lengthy delay in obtaining an order of extradition was caused by neglect. The first attempt at extradition failed because the documents sent to the State of New Jersey were incomplete; there appeared to have been no re-extradition agreement included among them. Furthermore, there is a time gap in the state's efforts to pursue extradition from September 1, 1977 to some time in the fall of 1979, no clear 1979 date being shown in the record. The New Jersey court did not hold a hearing on the matter until October, 1979, and no judgment was rendered until November 8, 1979. In our opinion, the State of Louisiana failed to show that it had been unable to obtain defendant's presence because of any "cause beyond the control of the state", and now that the time limit of Art. 578 has run, the state will be barred from continuing the prosecution.
Prior jurisprudence in this area has been inconsistent. State v. Shushan, 206 La. 415, 10 So.2d 185 (1944), which applied a similar but earlier statute, contains reasoning consistent with that expressed in the instant case. In Shushan, supra, the state knew at all times of the whereabouts of the defendants, and we held that incarceration did not act as an interruption of the running of prescription and that where the state did not pursue the legal means available to it to return the defendant to the jurisdiction of the court then prescription would operate as a bar to prosecution.
*815 However, State v. Dupree, 256 La. 146, 235 So.2d 408 (1970) appears to be an incorrect application of the present statute. There, the defendant fled this state and his whereabouts were unknown. The state later learned of the defendant's incarceration in Mississippi, and after serving four years in prison there, he was returned to Louisiana for trial. We held that prescription was interrupted while the defendant's whereabouts were unknown, and that when they did become known, prescription did not begin to run anew when neither the state nor defendant did anything to bring the prosecution to trial. We read Art. 578 as mandating trial within two years after institution of this prosecution unless the state can show a valid and continuing interruption under Art. 579. To the extent that Dupree would permit the state to delay commencement of trial without bearing the burden of showing valid reasons therefor under the exceptions set out in Art. 579, that case is overruled.
For the reasons assigned herein, the ruling of the court below is reversed and the case remanded with the order that defendant's motion to quash be granted and further proceedings below be dismissed.
REVERSED AND REMANDED with orders.
DIXON, C. J., dissents with reasons.
MARCUS, J., dissents and assigns reasons.
LEMMON, J., dissents and assigns reasons.
DIXON, Chief Justice (dissenting).
I respectfully dissent.
Unless there is a constitutional infirmity in C.Cr.P. 579, we ought to apply it. If the defendant at any time flees and is out of the state, the prescription against prosecution is interrupted.
MARCUS, Justice (dissenting).
I respectfully dissent for reasons assigned by Chief Justice Dixon.
LEMMON, Justice, dissenting.
C.Cr.P. art. 575 and 579(1) represent an application of the fundamental principle of prescription that time should not run against the party required to act when the opposing party prevents him from acting. Official Revision Comment (a), C.Cr.P. art. 575. Here, not only did defendant flee from Louisiana, and not only was he out of the state during the period between the state's institution of prosecution and defendant's motion to quash the charge, but also he refused to waive extradition, thereby remaining out of the state for the purpose of avoiding prosecution. We should hold prescription interrupted at least as long as the defendant is resisting extradition.[1]
ON REHEARING
DENNIS, Justice.
The result we reached on original hearing is correct.
This case hinges on whether prescription was interrupted on the period of limitation for bringing defendant's case to trial. Article 579 of the Code of Criminal Procedure provides that the period of limitation shall be interrupted if:
"(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
"(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state." *816 Clause (1) of Article 579 simply restates the fugitive from justice rule contained in Article 575. See Comment (b) under Article 579. This rule is an expression of the fundamental principle of any system of limitations that time should not run against the person required to act, when he is unable to act and particularly if the opposing party prevents him from acting. See Comment (a) under Article 575.
Clause (2) of Article 579 was suggested by State v. Shushan, 206 La. 415, 19 So.2d 185 (1944), in which this Court rejected the state's argument that the time limitations should not run because of defendant's out of state incarceration on the ground that the presence for trial of the accused could have been obtained by legal process. See Article 579, Comment (d). The case of State v. Dupree, 256 La. 146, 235 So.2d 408 (1970), which disregarded the words and the intention of the legislature in Article 579(2) and this Court's holding in Shushan, is expressly disapproved.
The state bears the heavy burden of showing that it is excused from trying an accused on a charge later than the period mandated by Article 578. State v. Driever, 347 So.2d 1132 (La.1977). We conclude that the state has not met its burden and that the prosecution must be dismissed.
Although one might surmise that the defendant departed Louisiana with the purpose to avoid apprehension, there was no evidence from which the trial judge could so find, unless it was the alleged incriminating facts set forth in the arrest warrant affidavit. We need not consider, however, whether these facts were properly in evidence or sufficient to support the judge's finding.
Interstate extradition of persons charged with crime in one state and found in another state is provided for by the federal constitution. U.S.Const. Art. IV, § 2. Implementing state legislation has been universally adopted. See La.C.Cr.P. Title VI, Extradition, Preliminary Statement. Louisiana and New Jersey are among the forty-eight states which have adopted the Uniform Extradition Act. La.C.Cr.P. arts. 261 et seq.; N.J.S.A. 2A:160-6 to 2A:160-35.
After receiving notice of the defendant's whereabouts, the state was no longer unable to act in apprehending the defendant or unable to obtain his presence for trial by legal process. Accordingly, it necessarily follows that any interruption of the period of limitation which existed under Article 579(1) or (2) ceased when the state regained its capacity to act. The period of limitation began anew at this time and expired without any further interruption.
The state has failed to carry its heavy burden of showing that it was unable to act or prevented from acting to obtain defendant's presence for trial after it received notice that defendant was incarcerated in New Jersey and susceptible to extradition. The delays and problems encountered by the state in extradition, or those caused by its own mismanagement, cannot be charged to the defendant. The court system cannot excuse itself from affording an accused a trial within the delay required by law, simply by relying on internal operating procedures which result in non-compliance with the statutory mandate. See State v. Driever, supra, 347 So.2d at 1134. Furthermore, the defendant's refusal to consent to his delivery to Louisiana authorities without extradition did not render the state helpless or deprive it of legal process by which it could have obtained the presence for trial of the accused. It merely required the state to resort to its constitutional and statutory powers of extradition.
For the foregoing reasons, the decision reached by the majority on original hearing is reinstated. The ruling of the court below is reversed and the case remanded with the order that defendant's motion to quash be granted and further proceedings below be dismissed.
REVERSED AND REMANDED WITH ORDERS.
DIXON, C. J., and LEMMON, and MARCUS, JJ., dissent.
NOTES
[1] Defendant did change his position in December, 1978 (after being sentenced to serve eight to twelve years in New Jersey) by asserting his right to a speedy trial, an action which arguably began the running of prescription. However, within a few months thereafter the state obtained the signatures of both governors to re-extradition papers and set the case for trial, all prior to the filing of the motion to quash. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601201/ | 391 So. 2d 762 (1980)
DEPARTMENT OF REVENUE of the State of Florida and Gerald A. Lewis, As Comptroller of the State of Florida, Appellants,
v.
PARKER BANANA COMPANY, a Florida Corporation, Appellee.
No. 79-581.
District Court of Appeal of Florida, Second District.
December 24, 1980.
Jim Smith, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, for appellants.
J. Rex Farrior, Jr., Stephen A. Crane, and Charles P. Schropp of Shackleford, Farrior, Stallings & Evans, Tampa, for appellee.
DANAHY, Judge.
For purposes of the tax imposed on corporations and other artificial entities by the Florida Income Tax Code,[1] tax base net income is determined in accordance with an apportionment formula which reflects the legislative view of how much of the net income of a domestic or foreign corporation should fairly be taxed by Florida. Among other things, the formula requires a determination of the total sales of the taxpayer in this state during the taxable year or period. That determination is the subject of the dispute in this case.
Appellee Parker Banana Company (Parker Banana) is a domestic corporation which imports bananas to Tampa in refrigerated ships and sells them to wholesalers, some of whom are from out of state. Bananas sold to purchasers from out of state are transported to points outside Florida. All of Parker Banana's purchasers arrange their own pickup and transportation. Parker Banana conveys the boxes of bananas by conveyer belt from the ship's hold directly into refrigerated trucks sent by or on behalf of the purchasers. Some purchasers send trucks owned or rented by them. Others use common carriers or contract carriers.
The Florida apportionment statute[2] provides that "sales of tangible personal property are in this state if the property is delivered or shipped to a purchaser within this state, regardless of the f.o.b. point or other conditions of the sale" (emphasis ours). In computing its Florida corporate income tax, Parker Banana treated all sales to purchasers from outside Florida as sales not in this state. Appellants (herein collectively *763 called "the Department") took the position that only those sales to out-of-state purchasers who used common carriers to pick up their bananas could properly be characterized as sales not in this state for purposes of the apportionment formula. The Department assessed a deficiency against Parker Banana accordingly, which Parker Banana paid under protest. In this suit for refund, the trial judge ruled that the Department's position was incorrect and entered a final summary judgment for Parker Banana. We affirm.
In the phrase "property delivered or shipped to a purchaser within this state," to what do the words "within this state" refer? That is the simple question which confronts us, and neither party has cited to us any authority which specifically addresses that question. Our own extensive research has produced none.
The Department reaches its position in this case by applying the words "within this state" to the word "delivered." The Department contends that those out-of-state purchasers from Parker Banana who arrange to pick up their bananas other than by common carrier take delivery as a matter of law at dockside in Tampa. Therefore, says the Department, in each such case there is a delivery within this state and the sale is within this state.
We disagree with the Department's construction of the statute. In our view, the words "within this state" must refer to the word "purchaser" if the legislative intent is observed. Under our construction of the apportionment statute, a sale is in this state if the sale is to a Florida purchaser and that, in turn, depends on the destination of the goods sold. It matters not whether delivery or shipment occurs in Florida or out of Florida. Our interpretation of the statute accords with the legislative intent to assign to Florida for tax purposes a portion of net income attributable to sales by the taxpayer in the Florida market as determined by the destination of the goods. A. England, Florida Corporate Income Taxation: Background, Scope and Analysis, in An Introduction to Florida Corporate Income Taxation 4, 14 (1972).
The Department's interpretation of the apportionment statute ignores basic rules of sentence construction and would have the effect of undermining the legislative intent. Surprisingly, the Department argues that the words "within this state" apply to the word "delivered" but not to the word "shipped." It does not treat as sales in Florida those sales by Parker Banana to out-of-state purchasers who arrange for shipment by common carrier. We appreciate the probable reason why the Department insists on such a tortured construction of the statute. Since the statute applies to out-of-state sellers as well as to domestic sellers, applying the words "within this state" to both the word "delivered" and the word "shipped" would result in excluding from Florida taxing jurisdiction a huge portion of sales by otherwise taxable out-of-state sellers to Florida purchasers. Only those in which either delivery or shipment occurs in Florida would be includable. But the Department cannot have its cake and eat it too; we see no way in the world that the statute can logically or grammatically be construed so that the words "within this state" apply only to the word "delivered".
Examples come readily to mind as well of situations in which there can be a sale by a Florida seller to a Florida purchaser with Florida the destination of the goods, yet neither delivery nor shipment occurs in this state. If, for example, Parker Banana imported bananas to New York by refrigerated ships and sold those bananas to Florida purchasers who took delivery at dockside in New York for transportation to Florida, those sales should be considered as sales in this state for purposes of the apportionment statute.
Our position is supported by the Department's own regulations, which refer to the term "purchaser within this state." Fla. Adm.Code Rule 12C-1.15(4)(d)4. The examples in the regulations demonstrate that if the destination of goods sold is Florida, then Florida is considered the consumer state-the market in which the sale is made-and the purchaser, regardless of business *764 location or residence, is the equivalent of a Florida purchaser.
Thus under the destination test, a purchaser from outside this state does not become a "purchaser within this state" merely by sending a representative to pick up the goods in Florida; if, however, the destination of the goods is a point within Florida, then the purchaser is within this state.
The Department has cited to us, in support of its position, the decision in Coulter Electronics, Inc. v. Department of Revenue, 365 So. 2d 806 (Fla. 1st DCA 1978). In that case our sister court held that certain inter-company sales were not sales. In reaching that conclusion, the court said that "the inter-company transactions also lack `delivery,' the factor under Florida Statute Section 214.71 which determines whether a sale of tangible personal property has occurred in Florida." The facts in the Coulter case are clearly distinguishable from the facts here involved, and the court's remark concerning place of delivery was unnecessary to its holding. Therefore, we do not consider the Coulter decision as authority for the proposition urged by the Department in this case.
In fact, the language adopted by Florida in the sales portion of the apportionment statute was chosen specifically because it establishes the "destination" test for determining whether sales are in this state for corporate income tax purposes. England, supra, at 14. The language of the statute is taken from Section 16(a) of the Uniform Division of Income for Tax Purposes Act (UDITPA). Florida did not, however, adopt all the provisions of UDITPA and so we are struggling with language taken out of context. Under UDITPA a corporation apportions net income to a state for income tax purposes only if it has income from business activity which is taxable both within and without the state. UDITPA Sec. 2. That may not be the case with Parker Banana, but Florida law mandates apportionment whether or not a corporation is engaged in a truly multistate business. § 220.15, Fla. Stat. (1979).
UDITPA also contains a "throwback rule" which apportions sales to the state of origin notwithstanding that they are made to an out-of-state purchaser if the taxpayer is not taxable in the state of the purchaser. UDITPA Sec. 16(b). A taxpayer in Florida which follows the practice of delivering goods in this state to representatives of out-of-state purchasers for transportation out of state might not be subject to income taxation in the purchasers' states by reason of those sales because of the jurisdictional barrier.[3] Had Florida adopted the throwback rule, the Department might not have felt constrained to take the contorted position it has taken in this case in order to capture Parker Banana's sales to out-of-state purchasers.
Our failure to find any case interpreting the meaning of "within this state" as used in the Florida statute probably results from the fact that the issue simply does not arise where apportionment is permitted only to a truly multistate business or the throwback rule is adopted. The statutory language barrier faced by the Department in this case may very well be unique to Florida and perhaps is a problem that should be addressed by the legislature. We have no choice but to rule that the apportionment statute does not support the Department's position.
AFFIRMED.
RYDER, J., concurs.
OTT, Acting C.J., dissents with opinion.
OTT, Acting Chief Judge, dissenting.
I dissent.
Appellee, a corporation subject to Florida income tax, imported bananas into Florida and sold them as they were unloaded from *765 the boat. All purchasers, regardless of where they were from, were required to take delivery at the dock. This case primarily involves some of the out-of-state buyers who took delivery in either their own vehicles or those of commercial carriers with which they had contracted. What happened to those bananas after that is not clearly established, but as I see it that is not really material. We are dealing with nonresident purchasers, and I know of no way in which the final destination of the bananas could ever be reliably established. Appellee convinced the trial court that such sales were not subject to Florida's corporate income tax, and the majority opinion affirms that result.
The controlling statute seems to me to clearly subject such sales to taxation. In essence, the legislature has declared that sales made in Florida by a corporate seller are taxable and, conversely, sales made outside Florida are not taxable. The critical question in each case, then, is whether a particular sale was made in or out of the state. The pertinent sections of the Florida Corporate Income Tax Law are sections 220.11(1), 220.12(1), 220.15 and 214.71(3), Florida Statutes. The latter section reads, in part, as amended retroactively in 1979, as follows:
(3) The sales factor is a fraction the numerator of which is the total sales of the taxpayer in this state during the taxable year or period and the denominator of which is the total sales of the taxpayer everywhere during the taxable year or period.
(a) 1. Sales of tangible personal property are in this state if the property is delivered or shipped to a purchaser within this state, regardless of the f.o.b. point or other conditions of the sale. (Emphasis supplied.)
First, it should be noted that the statute very clearly directs that each sale be viewed from the position of the Florida taxpayer, not the purchaser. All "sales of the taxpayer in this state" obviously means all sales the taxpayer has accomplished, finished, terminated, or completed in this state. I agree that Florida chose a "destination test" for determining whether a sale is made within or outside this state, but we must bear in mind that the state is interested in sales only insofar as the income of the seller is concerned. Once goods reach the hands of the buyer, what the buyer does or plans to do with them thereafter is of no consequence. So far as the seller was concerned in the instant case, the bananas had one and only one destination-the buyer's truck on the Tampa wharf.
In dealing with the issue to be resolved here, it is essential that we also keep in mind that Florida imposes a tax on the income of not just Florida-based corporations, but upon all corporations "conducting business, deriving income or existing within the state." Section 220.02, Florida Statutes (1971). The statute under review, section 214.71, merely implements that general intent by specifying the criteria for ascertaining the amount of income a corporation derives from business conducted in Florida. In my opinion, the simple, easy-to-understand-and-apply test selected by the legislature is that a seller will be deemed to derive income from the state in which the buyer takes physical possession of the goods. That is the destination, the point at which the goods pass from the seller to the buyer.
The majority applies the destination test from the standpoint of the buyer. In their view, the delivery of goods to the purchaser at some point within this state is not a Florida sale unless the goods are to enter the "Florida market." In other words, the majority looks to the ultimate destination intended by the purchaser. Thus, they assert that it makes no difference whether a Florida corporate seller ships the goods to an out-of-state buyer; or an out-of-state buyer comes into Florida, purchases merchandise, takes physical possession of it and personally removes it from the state; or an out-of-state seller ships goods into Florida to a Florida purchaser who then resells or reships the goods to an out-of-state destination; in each instance, according to the majority theory, it would be an out-of-state sale not subject to the Florida tax.
*766 That result is said to be compelled by the statutory definition of an in-state sale as one in which the goods are "delivered or shipped to a purchaser in this state." That language doesn't mean, says the majority, a delivery or shipment to a purchaser then present within the physical boundaries of this state, but instead means a purchaser who intends to retain those goods in Florida. In my opinion, the statute is in no way susceptible to such a strained construction.
It is Hornbook law that in construing a statute each part of it must be given effect, and words used in the statute should be given their ordinary, commonly understood meaning. 30 Fla.Jur. 241, 281. It seems to me that the reasoning of the majority cannot be reconciled with those rules.
The statute clearly contemplates two distinctly separate situations, (1) where any corporate seller delivers goods to any purchaser who is then in this state and (2) where any seller ships goods to any purchaser at a location within this state. There surely can be no mistaking the plain, unambiguous meaning of the first situation. The use of the indefinite article "a" before the word "purchaser," in preference to the definite "the," was undoubtedly purely fortuitous. I read no significance whatsoever into that choice, and therefore cannot accept the majority's theory that "a purchaser within this state" refers to something other than the geographical location of the purchaser when the goods are delivered to him.
I do, however, attach significant meaning to the words "or shipped." To give effect to that language, we must first recognize that whenever a seller delivers goods to the buyer at any point in Florida, that sale is expressly covered by the statute. By adding the words "or shipped," the legislature obviously intended to expand the category of Florida sales. It is equally obvious that the shipments referred to are not those shipments which are made by the seller in its own or hired private conveyance, because (as just noted) goods delivered by the seller to a purchaser within this state are already covered by the statute. Nor could they be shipments made by the purchaser in its own or hired private conveyance, because such goods would have been delivered to the purchaser already and thus could not qualify as "property ... shipped to a purchaser within this state." By the process of elimination, then, the shipments specifically mentioned in the statute must be those in which goods have been delivered by the seller to a public (common) carrier for transport and delivery to the purchaser at some point in Florida.
Under the statutory scheme, then, the location of the goods being sold is immaterial, and so is the location of the seller. It is the location of the buyer when he takes possession of the goods that is of prime importance. If that occurs in Florida, the seller must pay the Florida tax on profits accruing from that sale, assuming the seller is a corporation and otherwise subject to Florida's taxing jurisdiction.[1]
The majority finds fatal inconsistency in the fact that, under the agreed statement of facts, the Department does not regard as in-state those sales in which appellant delivers goods in Florida to a common carrier for shipment and delivery to the purchaser at some out-of-state location. The Department has not advised us in so many words why it treats shipments by common carrier differently from shipments by a purchaser's private, contract carrier. However, I think it would be totally inconsistent for the Department to adopt any other policy. If my interpretation of the statute is sound, shipments of goods into this state by common carrier are classified as Florida sales, subjecting the selling corporation to Florida income tax. It necessarily follows that shipments by common carrier to a destination outside this state would not be Florida sales. But the short answer to this feature *767 of Department policy is that it is not before us, and merely clouds the real issue presented by the facts of this case. The majority opinion is bottomed on a sweeping theory that even if an out-of-state buyer personally enters this state and purchases merchandise which he personally then exports outside Florida, that is not a sale in this state for the purpose of taxing the seller. It is with that theory that I find fault, and not with what the Department might or might not do in other situations.
Under the majority's theory, classifying each sale according to the subjective intentions of the purchaser, I think we face an entirely unmanageable situation. As a practical matter, Florida probably does not have and could not afford the massive manpower necessary to ascertain the "ultimate destination" of all goods first sold in Florida and later sold and resold or shipped and reshipped elsewhere in today's complex marketplaces.
The rule established by the majority opens a veritable "Pandora's box" of games for corporate taxpayers to play-games in which the State of Florida will consistently be the big loser. For instance, there is absolutely nothing in the Florida Income Tax Code (Florida Statutes 220.01 et seq.) which would warrant disparate treatment of wholesale and retail merchants, or sanction any distinction between those non-residents who enter this state for the primary purpose of purchasing large quantities of goods and those tourists who buy here only incidentally. Under the rule of the majority opinion, no corporate retailer doing business in Florida can be taxed on income derived from sales to non-residents who intend to take their purchases back home with them. The entire corporate income tax program will devolve into an honor system, with no possibility of strict enforcement by the Department. I question the feasibility of such a program, and I doubt that the legislature ever intended such an anomalous result. Policing and enforcement should be largely-if not totally-accomplished by an audit and examination of the seller's (taxpayer's) books and records.
I would reverse the judgment of the trial court and deny the refund to appellee.
NOTES
[1] Ch. 220, Fla. Stat. (1979).
[2] § 214.71, Fla. Stat. (1979).
[3] The jurisdictional barrier is the nexus required by the federal constitution and federal law for state taxation of the income of a corporation conducting only an interstate business within the state. Without a "throwback rule" such as that provided in UDITPA, the jurisdictional barrier can produce "nowhere income." Corrigan, Interstate Corporate Income Taxation-Recent Revolutions and a Modern Response, 29 Vand.L.Rev. 423, 429 (1976).
[1] It would seem that the tax law, like so many other laws governing multi-state operators, requires a reasonable nexus between the seller and the taxing state. Mere presence of the seller in that state, however, does not per se supply the necessary contact. A policy that sales will be allocated to the state in which the goods are actually delivered into the possession of the buyer seems simple, reasonable and enforceable. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601270/ | 379 N.W.2d 247 (1986)
STATE of Minnesota, Respondent,
v.
William Paul PENDZIMAS, Appellant.
No. C4-85-1414.
Court of Appeals of Minnesota.
January 7, 1986.
Review Denied March 14, 1986.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, Thomas L. Johnson, Hennepin Co. Atty., Vernon E. Bergstrom, Chief, Appellate Section, Beverly J. Wolfe, Asst. Co. Atty., Minneapolis, for respondent.
C. Paul Jones, State Public Defender, Anne Lewis, Asst. Public Defender, Minneapolis, for appellant.
Considered and decided by POPOVICH, C.J., and PARKER and FOLEY, JJ., with oral argument waived.
OPINION
PARKER, Judge.
Appellant William Paul Pendzimas pleaded guilty to attempted murder in the first degree in violation of Minn.Stat. §§ 609.185(3), 609.17, and 609.11 (1984). On appeal Pendzimas contends the trial court failed to provide departure reasons on the record at the time of sentencing. We remand.
FACTS
On January 19, 1985, Minneapolis police officers responded to a shooting report. The victim told the officers that a man, later identified as Pendzimas, knocked on her door and asked to use the telephone because his car had stalled. Pendzimas walked to the kitchen telephone, removed his gloves, and then pulled out a small gun and demanded that the victim give him everything. The victim was forced to remove her wedding rings and then pushed into the bathroom, where Pendzimas attempted to tie her up with a cord. When she resisted, he said, "I'll shoot you * * *," and then fired five shots. The victim was hit three times once in the abdomen, once in the shoulder, and once in the face.
Fingerprints on various objects in the home were positively identified as Pendzimas' prints, and the victim positively identified Pendzimas as her assailant. Pendzimas was arrested two days later; some of the items taken from the victim's home *248 were found in his possession. Pendzimas later admitted to police that he went to an unknown address to use the telephone and shot the victim inside her home. Pendzimas was charged with several counts of attempted murder as well as burglary and aggravated robbery. He pleaded guilty to one count of attempted first-degree murder and agreed that his sentence would be no more than 120 months. The presumptive sentence was 92 to 103 months, based on a criminal history score of 2. Minnesota Sentencing Guideline II.G. The trial court sentenced Pendzimas to 120 months; however, no reasons for the departure were stated at the May 13, 1985, sentencing. A departure report, apparently dated the same day as sentencing, was filed September 26, 1985, with the Sentencing Guidelines Commission. The trial court stated:
The upward departure was justified by the defendant's particular cruelty to the victim, a sixty-three-year-old woman. The victim had let the defendant into her home because it was 40 degrees below and he said he needed to use the phone. During the course of his attack on the victim, the defendant shot five shots, three of which hit the victim. One of the three shots that struck the victim was fired point blank in her face. After taking several items from the house, the defendant left the victim for dead.
ISSUE
May this court consider an untimely departure report in reviewing a sentencing departure when no reasons for departure were stated on the record at the time of sentencing?
DISCUSSION
Pendzimas notes correctly that the trial court cannot rely upon a plea agreement as justification for a sentencing departure. State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981); State v. Pince, 358 N.W.2d 435, 438 (Minn.Ct.App.1984), pet. for rev. denied, (Minn. March 6, 1985).
In Williams v. State, 361 N.W.2d 840 (Minn.1985), the supreme court stated:
In the past this court has been lenient in enforcing the literal requirements for a departure report. * * *
In order to ensure future compliance, however, with the sentencing guidelines requirements, we prospectively adopt, effective the date this opinion is filed, the following general rules:
1. If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed.
2. If reasons supporting the departure are stated, this court will examine the record to determine if the reasons given justify the departure.
3. If the reasons given justify the departure, the departure will be allowed.
4. If the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify departure, the departure will be affirmed.
5. If the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.
Williams, 361 N.W.2d at 844. The supreme court suggested that departure reports be filed within 60 days of sentencing. Id. at 843-44 n. 1.
Here the trial court did not provide any reasons for departure on the record at sentencing and instead submitted a departure report over four months after sentencing. It was not filed until September 26, 1985, two days after Pendzimas filed his brief in this matter.
While we have no doubt the evidence fully supports a departure based on particular cruelty to the victim and invasion of her zone of privacy, the departure report was untimely. There is good reason why the supreme court in Williams specifically required reasons to be stated on the record at sentencing. Without reasons given, a defendant is handicapped in evaluating and preparing an appeal.
*249 We must remand to the trial court for resentencing within the range provided by the Guidelines to give the trial judge an opportunity to exercise discretion within that range. State v. Pickett, 358 N.W.2d 38 (Minn.1984), affirmed as modified, 375 N.W.2d 105 (Minn.Ct.App.1985).
DECISION
No departure is allowed when the trial court fails to provide reasons justifying departure on the record at the time of sentencing and instead files a departure report over four months later. We remand for resentencing within the range of the presumptive sentence under the Guidelines.
Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601279/ | 379 N.W.2d 711 (1986)
Jerome O. BENSON, Appellant,
v.
CITY OF LITTLE FALLS, Respondent.
No. C7-85-1312.
Court of Appeals of Minnesota.
January 21, 1986.
Michael O. Burns, Michael O. Burns & Assoc., St. Cloud, Paul Widick, Van Drake & Van Drake, Ltd., Brainerd, for appellant.
*712 Robert J. Phillips, Phillips Law Office, Little Falls, for respondent.
Heard, considered and decided by PARKER, P.J., and FORSBERG, and NIERENGARTEN, JJ.
PARKER, Judge.
This is an appeal from a judgment denying appellant Jerome Benson's claim to additional severance pay. Benson contends the trial court erred in construing an ambiguous contract term in favor of the drafting party. Respondent City of Little Falls disagrees, arguing the trial court correctly interpreted the contract when it held Benson had been fully compensated. We affirm.
FACTS
After working as a full-time firefighter for 27 years, Benson retired in 1984. He applied for severance pay under a Little Falls city ordinance which entitles all permanent city employees to severance pay equal to "100 working days." The city paid Benson for 100 eight-hour days ($8,544); Benson claims he was entitled to a payment equal to 100 24-hour days ($25,632) because as a firefighter his work day consisted of a 24-hour shift. At the court trial, the dispute involved the interpretation of the term "working days."[1]
The evidence is undisputed. The city employed three full-time firefighters who worked 24-hour shifts followed by 48 hours off. In 1973 or 1974, prior to passage of the ordinance, Benson and other members of the fire department met with the city council to discuss whether the firefighters should work a normal eight-hour day. The firefighters expressed a preference for 24-hour shifts. The subjects of benefits or severance pay were not discussed.
Benson was the first firefighter to retire, but he was not the first to receive severance pay. In 1977 firefighter Roland Heurung was asked to resign after he was found intoxicated on the job. A 1977 payroll voucher signed by Benson, who was fire chief at the time, shows Heurung received "[s]ev. pay 800 hrs (100 days @ 8 hours)." The city contends this precedent establishes that a "working day" is an eight-hour day.
Benson contends his case is different from Heurung's; the city was not legally obligated to pay Heurung because he was not 60 years old when he resigned and thus had not met the retirement criteria under the ordinance. The evidence indicates the city may have paid Heurung for two reasons. Heurung may have been entitled to severance pay because he had applied for disability benefits under the Public Employees Retirement Act (PERA). Under the city ordinance, an employee is entitled to severance pay before reaching age 60 if qualifying for early retirement benefits under PERA. Heurung's payment may also have been made in settlement of any dispute Heurung might have had with the city over his resignation.
Benson also asserts that the city's interpretation of other sections of the ordinance supports his position. Benson was ill for almost a year between June 1980 and May 1981. Under the terms of the 1977 ordinance relating to sick leave,[2] he was paid sick leave based on a 24-hour day.
In 1982 the city amended the sick leave provisions and the vacation and holiday pay provisions for full-time firefighters. Thomas Manninen, the city administrator, testified those sections were changed so firefighters would receive the same sick leave and vacation benefits as other eight-hour employees. However, the section relating to severance pay was not amended because the city believed the meaning of the term "working days" was clear and because past practice had established it meant an eight-hour *713 day. Fire chief Nieman testified that he expected his severance pay to equal 100 eight-hour days "as with Mr. Heurung." Benson implies the city chose not to change the provision in 1982 because it did not want to affect his entitlement to severance, which had vested in 1977 after 20 years of service, and because such an amendment would amount to an admission that the 1977 ordinance was intended to mean 100 24-hour days.
ISSUE
Did the trial court err in construing an ambiguous contract term in favor of the drafting party?
DISCUSSION
This is an appeal from a judgment only; no post-trial motions were made. The only questions for review are whether the evidence sustains the findings of fact and whether such findings of fact sustain the conclusions of law and judgment. Gruenhagen v. Larson, 310 Minn. 454, 246 N.W.2d 565 (1976).
Benson asserts the trial court erred in refusing to interpret this ambiguous contract term strictly against the drafting party. When a contract bears more than one reasonable interpretation, any ambiguity should generally be resolved against the party who drew the contract. Deutz &. Crow Co., Inc. v. Anderson, 354 N.W.2d 482, 486 (Minn.Ct.App.1984) (citing Telex Corp. v. Balch, 382 F.2d 211 (8th Cir. 1967)). However, this rule of construction does not give rise to a presumption that the non-drafting party is entitled to a favorable interpretation of the contract; nor does it imply that the burden of proof is on the drafting party, especially in this case where the drafting party prevailed below. See, e.g., Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 67 (Minn.1979) (rule that ambiguous terms be construed against the drafter does not "ineluctably lead to the conclusion that the drafter is to lose;" other rules of construction, such as that requiring language to be given its plain and ordinary meaning, may compel a different result).
When a contract is ambiguous, courts look to the intent of the parties. Cherne Industrial, Inc. v. Grounds & Associates, 278 N.W.2d 81, 88 (Minn.1979). In this case the evidence shows that the firefighters themselves preferred to work 24-hour shifts instead of eight-hour days and that the present fire chief expects to receive severance pay equal to 100 eight-hour days when he retires. Most importantly, the evidence establishes a prior interpretation of the section of the ordinance in dispute here. While there is conflicting evidence as to whether the city was obligated to pay Heurung severance or whether it did so gratuitously, the payment was still labeled severance, equal to 800 hours (100 "working days"), and approved by Benson himself. Benson's analogy of the severance pay section with the other sections of the ordinance relating to sick leave and vacation pay is not persuasive given this prior interpretation.
Equity also compels finding Benson entitled to severance pay equal to only 100 eight-hour days. Acceptance of his interpretation would entitle him to triple the severance pay available to other city employees. Such a result would be unfair to those who receive severance pay based only on an eight-hour work day. It would also be patently unfair to allow Benson, who approved Heurung's pay of 100 eight-hour days, to construe the same city ordinance in a different way and collect three times the amount Heurung was paid.
DECISION
The trial court correctly construed an ambiguous term in a section of a city ordinance based upon a prior interpretation of the same section.
Affirmed.
NOTES
[1] Benson had also sought additional vacation pay, which was granted by the trial court. This appeal involves only severance pay.
[2] The section of the ordinance relating to sick leave provides benefits at the rate of one day per month up to a total of 120 days; it does not limit such days to eight hours of regular salary. The section relating to vacations provides that "each vacation day [is] not to exceed eight (8) hours of regular salary" and "[a] work day is defined as a day upon which an employee would work if he was not on vacation." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601309/ | 445 F.Supp. 1171 (1977)
Ejner J. JOHNSON, Motor Vehicle Administrator
v.
ALEXANDRIA SCRAP CORPORATION.
Civ. No. K-77-66.
United States District Court, D. Maryland.
December 19, 1977.
Francis B. Burch, Atty. Gen. of Md., William M. Huddles, Glenn E. Bushel, Thomas C. Lederman, Asst. Attys. Gen., Baltimore, Md., for plaintiff.
Norman P. Ramsey, H. Thomas Howell and Semmes, Bowen & Semmes, Baltimore, Md., for defendant.
*1172 FRANK A. KAUFMAN, District Judge.
On March 12, 1975, in Alexandria Scrap Corporation v. Hughes, 391 F.Supp. 46 (D.Md.1975), sometimes referred to herein as the 1974 case, a three-judge court enjoined defendants therein. Those defendants were officials of the State of Maryland, one of whom is the Administrator of the Motor Vehicle Administration of the State of Maryland, plaintiff herein. The defendants in the 1974 case were enjoined from enforcing certain provisions of a Maryland statute which would otherwise have rendered plaintiff in that case, Alexandria Scrap Corporation (Alexandria), defendant herein, ineligible to receive certain payments from the State of Maryland. The state officials successfully appealed from that injunction, in the 1974 case, to the Supreme Court of the United States, which, on July 21, 1976, issued its mandate reversing the said March 12, 1975 judgment and remanding the 1974 case "for further proceedings in conformity with the opinion of this Court."[1] Thereafter, a dispute arose regarding the rights of the State of Maryland to recover payments made by it, in accordance with this Court's erroneous decree, to Alexandria during the period between March 12, 1975 and July 21, 1976. The three-judge Court, on July 22, 1977, dissolved itself and assigned those issues to the undersigned Judge of this Court, sitting as a single District Judge, holding, inter alia:
The question of the constitutionality of the Maryland statutory provisions originally challenged by plaintiff has been settled by the Supreme Court, and there remain for decision only damage-type issues, none of which would give rise to injunctive relief against the enforcement of a state statute. Thus, the final disposition of the remaining issues which this case presents does not require the continued existence of a three-judge court.
Meanwhile, on December 23, 1976, plaintiff Johnson, in his official capacity as the Motor Vehicle Administrator of the State of Maryland, instituted the within new case against Alexandria in the Circuit Court for Anne Arundel County, Maryland, alleging that "Plaintiff, on behalf of the Motor Vehicle Administration, is entitled to restitution from the Defendant [Alexandria] in the amount of $130,624.00, which sum represents monies paid to the defendant by the Motor Vehicle Administration pursuant to an injunction which was determined by the Supreme Court of the United States to have been wrongfully issued by the United States District Court" and contending that "[i]n light of the Supreme Court's reversal of the District Court's decision, the Defendant must, in equity and good conscience, restore the Motor Vehicle Administration to everything of value which was obtained as a result of the District Court's erroneous judgment."
On January 7, 1977, defendant, relying upon 28 U.S.C. § 1441, removed the within case to this Court. Subsequently, plaintiff timely moved to remand to the Circuit Court for Anne Arundel County. Alexandria opposes that motion to remand, asserting that the removal is proper.[2]
28 U.S.C. § 1441 provides:
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the *1173 district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.
Alexandria is a Virginia corporation. Seemingly, its principal place of business is not in Maryland. In this instance, however, it is not necessary to determine whether removal is authorized by the second sentence of section 1441(b) since herein this Court holds that the first sentence of section 1441(b) is applicable.
Plaintiff in this case seeks restitution of monies paid pursuant to this Court's prior erroneous injunction. That claim in and of itself states a federal question which brings into existence subject matter jurisdiction under 28 U.S.C. § 1331. Simply stated, a federal district court has jurisdiction in the same case or in a subsequent case to correct its own errors, particularly when it is directed so to do by the Supreme Court of the United States. That direction, originally issued to the three-judge Court, now is imposed, following the self-dissolution of that Court, on this single-judge District Court. See Public Service Commission of Missouri v. Brashear Freight Lines, Inc., 312 U.S. 621, 61 S.Ct. 784, 85 L.Ed. 1083 (1941).[3]
In Arkadelphia Milling Co. v. St. Louis Southwestern Railway Co., 249 U.S. 134, 39 S.Ct. 237, 63 L.Ed. 517 (1919), a federal district court, in two suits filed by two railway companies, enjoined enforcement of certain railroad rates set by a state regulatory commission. The Supreme Court reversed the injunctions and remanded the case to the district court with directions "to dismiss the bill" and to conduct such further proceedings as "`ought to be had.'" 249 U.S. supra at 139, 39 S.Ct. 237. The district court conducted such proceedings and subsequently ordered the railroad companies to make certain refunds to customers. The parties aggrieved by that order sought to appeal directly to the Supreme Court. In permitting that direct appeal the Supreme Court wrote (at 142, 39 S.Ct. at 240):
The present appeals relate to a decree made in a subordinate action ancillary to the main causes, in which, as has been stated, the federal jurisdiction was invoked solely upon the ground that the cases arose under the Constitution of the United States. It has been held repeatedly that jurisdiction of subordinate actions is to be attributed to the jurisdiction upon which the main suit rested, and hence that where jurisdiction of the main cause is predicated solely on diversity of citizenship and the decree therein is for this reason made final in the circuit court of appeals, the judgments and decrees in the ancillary litigation also are final. * * [citations omitted]
The proceeding out of which the decree now in question arose was not merely ancillary but was in effect a part of the main causes, taken for the purpose of carrying into effect the decrees of this court reversing the final decrees in the *1174 main causes and, at the same time, for the purpose of giving effect to a reservation of jurisdiction by the court below as contained in those final decrees. The supplementary decree that is now before us, since it simply brings to a conclusion those former suits pursuant to our decrees therein, must be treated as involving the construction and application of the Constitution of the United States and as being made in a case in which a state law was claimed to be in contravention of the Federal Constitution, within the meaning of § 238, Judicial Code.
In the course of discussing the merits of the case, Mr. Justice Pitney further held (at 145-46, 39 S.Ct. at 242) that the refund claims were:
allowable against the railway companies themselves upon the principle, long established and of general application, that a party against whom an erroneous judgment or decree has been carried into effect is entitled, in the event of a reversal, to be restored by his adversary to that which he has lost thereby. This right, so well founded in equity, has been recognized in the practice of the courts of common law from an early period. Where plaintiff had judgment and execution and defendant afterwards sued out a writ of error, it was regularly a part of a judgment of reversal that the plaintiff in error "be restored to all things which he hath lost by occasion of the said judgment"; and thereupon, in a plain case, a writ of restitution issued at once; but if a question of fact was in doubt, a writ of scire facias was first issued. Anonymous, Salk. 588; citing Goodyere v. Ince, Cro. Jac. 246; Sympson v. Juxon, Cro. Jac. 698; Vesey v. Harris, Cro. Car. 328; see also Lil. Ent. 641, 650; Arch. Append. 195, 200. The doctrine has been most fully recognized in the decisions of this court. Bank of the United States v. Bank of Washington, 6 Pet. 8, 17, [8 L.Ed. 299]; Erwin v. Lowry, 7 How. 172, 184, [12 L.Ed. 655]; Northwestern Fuel Co. v. Brock, 139 U.S. 216, [11 S.Ct. 523, 35 L.Ed. 151];
That a course of action so clearly consistent with the principles of equity is one proper to be adopted in an equitable proceeding goes without saying. It is one of the equitable powers, inherent in every court of justice so long as it retains control of the subject-matter and of the parties, to correct that which has been wrongfully done by virtue of its process. Northwestern Fuel Co. v. Brock, 139 U.S. 216, 219 [11 S.Ct. 523, 35 L.Ed. 151]; Johnston v. Bowers, 69 N.J.L. 544, 547, 55 A. 230.
See also Atlantic Coast Line Railroad Co. v. Florida, 295 U.S. 301, 55 S.Ct. 713, 79 L.Ed. 1451 (1935) (Cardozo, J.); Public Service Commission of Missouri v. Brashear Freight Lines, Inc., 312 U.S. 621, 61 S.Ct. 784, 85 L.Ed. 1083 (1941) (Black, J.); Greenwood County v. Duke Power Co., 107 F.2d 484 (4th Cir. 1939) (Parker, J.); cf. Russell v. Farley, 105 U.S. 433, 26 L.Ed. 1060 (1882).
Thus, if plaintiff Johnson had sought his refund in the 1974 case upon remand from the Supreme Court, this Court's federal question subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 would have continued to exist. But plaintiff did not so do. Instead plaintiff sought that relief in this new case in a state court which plaintiff commenced in 1976. The question arises as to whether plaintiff could have brought this case in this federal Court, asserting § 1331 jurisdiction. There is no good or sensible reason why the answer should not be and is not "Yes" in a case in which restitution is sought pursuant to a claim grounded in the reversal and remand of this Court's erroneous decree in the 1974 case. It is that decree itself which provides the starting point from which plaintiff commences its quest for relief in this case.
Plaintiff's reliance on decisions holding that a suit to enforce a judgment rendered by a federal court is not one arising under the laws of the United States[4] is misplaced. *1175 No litigation of any federal issue is involved in such a case. On the other hand, actions to vacate federal judgments have been held to arise under the laws of the United States. The latter type of case is closely analogous to an action, such as the within case, for restitution. Thus, in 7 Moore's Federal Practice ¶ 60.38[1], at 645-47 (2d ed. 1975) the authors have written:
If the independent action in equity is not brought in the federal court which rendered the original judgment, but in another federal court, it is quite doubtful if such action can be supported on ancillary principles. If this independent action must be supported by independent jurisdictional grounds, then the presence of any conventional ground will support the action, such as: action by the United States; diversity and the requisite jurisdictional amount; general federal question and the requisite jurisdictional amount, where there is some distinct federal claim, such as the judgment constitutes a denial of procedural due process. But where the independent action is based on general equitable principles, such as fraud, etc., does this present a general federal question case? By analogy to the doctrine that an action on [emphasis in original] a federal judgment does not present a general federal question, the answer is in the negative. That doctrine rests, however, on the practical principle that plaintiff's claim of debt on a federal record does not itself often involve the validity of the federal judgment and hence no substantial federal question, the federal ingredient being too remote or incidental to plaintiff's claim; and jurisdiction is lacking until Congress expresses its intent that the federal courts have jurisdiction of such an action. But an action to enjoin or otherwise obtain relief from a federal judgment involves the validity of the judgment as a continuing obligation; the substantive principles of the action are federal; and, we believe, presents a general federal question. [Emphasis added.]
If the independent action is brought in a state court it may be removed to the appropriate federal court on the basis of a general federal question. And, in appropriate situations, the federal court may enjoin relitigation of matter adjudged by a federal judgment. [Emphasis added.]
[Footnotes omitted.]
Those observations are in line with the holding in Crane v. Buckley, 105 F. 401 (N.D.Cal.1900) in which an action was filed in state court to recover on an appeal bond given by an unsuccessful appellant who had appealed from the judgment of a federal court. That state court action was held properly removed to another federal district court in the same federal Circuit. In so concluding, the court wrote (at 402):
The writ in this case was a supersedeas, and the security given therefor extended to damages as well as to costs. The question for determination is, has this court jurisdiction of the action? It has been held that such a controversy is one springing out of a suit already determined in the federal court, and is in one sense an offshoot of that suit (Seymour v. Construction Co., Fed. Cas. No. 12,689, 7 Biss. 460); and, further, in the same case, that a supersedeas bond is an indemnity given in pursuance of a law of the United States. The measure of the liability of the party and the rights of both plaintiff and defendant depend upon a law of the United States and a rule of the supreme court of the United States (No. 29). 3 Sup.Ct. xvi. It is impossible to take a step in the progress of a suit brought upon such a bond in order to determine the rights of the parties without looking at the law and the rule as the guide of the court, and controlling its judgment in the determination of the case. And in Arnold v. Frost, Fed. Cas. No. 558, 9 Ben. 267,a suit for recovery on a bond given on appeal,the court in positive terms declared it to be, not an original suit, but an offshoot or outbranch of the suit in which the bond was given, and that jurisdiction of the original suit gave jurisdiction over the subject-matter of the suit on the bond. The action under consideration *1176 is based upon proceedings in the United States circuit court acting under authority conferred by a law of the United States and a rule of the circuit court of appeals (No. 13). 31 C.C.A. cliii., 90 Fed. cliii. It therefore presents a question arising under the laws of the United States, and so within the jurisdiction of this court. First Nat. Bank of Ceredo v. Society of Savings, 25 C.C.A. 466, 80 Fed. 581. Upon the doctrine announced in the foregoing cases the motion to remand the cause to the state court will be denied.
While in this case "[t]he measure of the liability of the party and the rights of both plaintiff and defendant [do not] depend upon a law [statute] of the United States and a rule of the supreme court of the United States," they do depend on the application of legal principles established by the federal cases cited supra, discussing restitution sought because of erroneous injunctions. Furthermore, this is "a controversy [not only] springing out of a suit already determined in the federal court, and [thus] in one sense an offshoot of that suit," but also springing out of an error of this Court.
In Villarreal v. Brown Express, Inc., 529 F.2d 1219 (5th Cir. 1976) (per curiam), the Court held that an action commenced in a state court and involving an attempt to obtain relief from a prior, existing federal court judgment was properly removed to federal court. In that case, the Fifth Circuit wrote (at 1221):
We are convinced that the district court was correct in exercising removal jurisdiction in this case.
A party may not fraudulently evade removal by drafting a complaint so that the true purpose of the law suit is artfully disguised. Romick v. Bekins Van & Storage Co., 197 F.2d 369, 370 (5 Cir. 1952), citing Great Northern Ry. Co. v. Alexander, 246 U.S. 276, 281, 38 S.Ct. 237, 239, 62 L.Ed. 713, 715 (1918). ". . . in practice, the federal courts usually do not limit their inquiry to the face of plaintiff's complaint, but rather consider the facts disclosed on the record as a whole in determining the propriety of removal." 14 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3734 (1976), citing Nunn v. Feltinton, 294 F.2d 450 (5 Cir. 1961), cert. denied, 369 U.S. 817, 82 S.Ct. 829, 7 L.Ed.2d 784 (1962).
Although appellant's complaint purports to seek damages for conversion of a tire, it is our opinion that the claim in this case is essentially one to recover additional damages for personal injuries, and can be viewed as an action which attacks the order of dismissal entered by the district court in the prior suit between these parties. The damages alleged by appellant are not based on the actual value of the tire, but on the alleged fraudulent concealment of the tire. In order to demonstrate any unique value that the tire might have, appellant would have to prove that a fraud was perpetrated upon him during the settlement negotiations in the prior law suit.
The proper avenue of redress for a party seeking relief from a judgment claiming fraud as grounds for relief is under Fed.R.Civ.P. 60(b)(3). "If the independent action is brought in a state court, it may be removed to the appropriate federal court on the basis of a general federal question." 7 J. Moore, Moore's Federal Practice ¶ 60.38[1] (2nd Ed. 1975), citing Deauville Associates v. Lojoy Corp., 181 F.2d 5 (5 Cir. 1950). Since appellant's claim in the instant action is essentially one claiming fraud as grounds for relief, the district court judge properly considered it as being within the purview of Fed.R.Civ.P. 60(b)(3) and granted appellee's petition for removal.
Plaintiff contends that, in any case, the case at bar is merely one for restitution arising under the common law of Maryland for restitution, and cites Redwood Hotel, Inc. v. Korbien, 197 Md. 514, 80 A.2d 28 (1951); Burns v. Bines, 189 Md. 157, 166, 55 A.2d 487, 57 A.2d 188 (1947). Neither case establishes whether there is a cause of action under Maryland law for restitution allegedly required as the result of a reversed federal court judgment. Cf. Restatement *1177 of Restitution § 74 (1937). In any event, the complaint itself, in this case, and not plaintiff's subsequent characterization of it as a case arising under Maryland common law, would appear to control. See 14 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3722, at 570; 1A Moore's Federal Practice ¶ 0.160, at 194 (2d ed. 1974). Herein the complaint clearly asserts a cause of action growing out of this federal Court's earlier erroneous action. Accordingly, it must be read as asserting, at the least, a cause of action under federal as well as state law. See Nance v. Jackson, 56 F.R.D. 463, 467-68 (M.D.Ala.1972) (Johnson, J.). So read, the entire complaint, whether or not all of it is based exclusively on earlier occurrences in this Court and in the Supreme Court, is properly removed pursuant to 28 U.S.C. § 1441(c). That is so because "the doctrine of pendent jurisdiction . . . is fully applicable to removal based on the existence of a federal question." 14 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3722, at 572-73.[5]
For the reasons stated in this opinion plaintiff's motion to remand will be denied. In a separate Order this Court will consolidate the within remanded case, pursuant to Federal Civil Rule 42(a), with the 1974 case.
NOTES
[1] The Supreme Court's mandate is attached to this opinion. The relevant and material facts and underlying issues in the 1974 case are set forth in the Supreme Court's opinion (Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976)) and in the reversed opinion of this Court. They will not be repeated or again discussed herein.
[2] Alexandria, subsequent to plaintiff's filing in this case of the motion to remand, filed a motion in the 1974 case seeking supplemental and declaratory relief as to Alexandria's rights to retain and/or recover payments from the State of Maryland relating to the period subsequent to March 12, 1975. That quest for relief by plaintiff requires resolution of the issues raised in the within case by plaintiff Johnson.
In addition to opposing plaintiff's remand motion in this case, Alexandria seeks secondarily, in the event plaintiff's remand motion is granted, to have this Court order in the 1974 case a stay of proceedings in this case in the Circuit Court for Anne Arundel County. That "stay" issue need not be resolved, in view of this Court's holding in this case.
[3] See also Bond v. White, 508 F.2d 1397 (5th Cir. 1975); Pabst v. Campbell, 150 F.Supp. 71 (S.D.Ind.1957) (three-judge court); Davis v. County School Board of Prince Edward County, Virginia, 142 F.Supp. 616 (E.D.Va.1956) (Parker, J.) (three-judge court).
[4] 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3563, at 416 n. 7, and cases cited therein.
[5] If the complaint had expressly restricted itself to a state cause of action, this Court might be required to respect that choice. The question then would arise as to whether such a state law action involved a sufficiently substantial federal law component, either as a result of the federal issues inherently raised in the investigation of the equities underlying this Court's earlier erroneous judgment and its reversal or as a result of the within action's derivative character, to support removal in spite of the state law basis of the action. See Villarreal v. Brown Express, Inc., supra; 7 Moore's Federal Practice ¶ 60.38[1], at 645-47 (2d ed. 1975), quoted supra at pp. 7-8. That question need not be herein reached. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3955830/ | Appellants have presented to this court a motion, complaining of our last ruling concerning the testimony of the witnesses, Elbert Hood and Otto Zavasch, and contending that the testimony referred to concerning a transaction between the two above-named witnesses, in regard to the possession of the property in controversy, in the absence of Mrs. Cass or her husband, under whom she claims, was hearsay and not admissible.
Mrs. Cass offered testimony tending to show that she and her husband had leased their property to the Milam County Lumber Company, and at the time of the transaction between Elbert Hood and Otto Zavasch, the latter was manager of the lumber company. There was evidence tending to show possession of the property in controversy by Dr. Cass prior to the conversation or agreement between Elbert Hood and Otto Zavasch. But it was not conclusively shown that Dr. Cass *Page 239
had possession of all the property in controversy prior to that time; and therefore we hold that the testimony was admissible, but agree with appellants that it was proper for the trial court to instruct the jury as to the purposes for which it might be considered. If Dr. Cass was already in possession of the entire strip of land in controversy prior to that time, then the agreement between Hood and the lumber company would not be binding upon him. But, if he did not have such prior possession, and possession was secured by a contract between Hood and the lumber company, acting by Zavasch, then such possession would not avail in support of Mrs. Cass' plea of limitation, because it would not be adverse possession.
These observations will sufficiently indicate to the trial court the view we entertain as to how the question under consideration should be dealt with, upon another trial. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2441222/ | 970 N.E.2d 798 (2012)
T.P.
v.
B.P.
No. 06A01-1202-JP-38.
Court of Appeals of Indiana.
July 17, 2012.
BAKER, J.
Affirmed in part and Reversed in part.
KIRSCH, J. and BROWN, J., Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601107/ | 391 So. 2d 720 (1980)
G.A., a Juvenile, Appellant,
v.
STATE of Florida, Appellee.
No. OO-475.
District Court of Appeal of Florida, First District.
December 19, 1980.
*721 Gilbert A. Schaffnit, Asst. Public Defender, Gainesville, for appellant.
Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
PER CURIAM.
G.A., a juvenile, appeals from the juvenile court's order waiving its jurisdiction and certifying him for trial as an adult. He urges, among other points, that the petition for delinquency should be dismissed because it was untimely filed.
Before reaching the issues raised by G.A., we must first address the jurisdictional issue brought to the fore by the Fifth District Court of Appeal's recent ruling that orders from waiver hearings are interlocutory and therefore not reviewable under Fla.R.App.P. 9.140(b) (1978). In Interest of R.J.B., 394 So. 2d 126 (Fla. 5th DCA 1980).
We agree with the Fifth DCA that such orders are interlocutory in nature. Mitchell v. State, 351 So. 2d 1142 (Fla. 1st DCA 1977). However, we think these appeals are governed by Florida Rules of Juvenile Procedure (1977) and Sections 39.09(2)(e) and 39.14(1), Fla.Stats. (1978 Supp.), rather than by Fla.R.App.P. 9.140(b). See Malyn v. Atlantic Federal Savings and Loan Association, 384 So. 2d 957 (Fla. 1st DCA 1980); Fidelity and Casualty Co. of N.Y. v. Scott, 386 So. 2d 315 (Fla. 1st DCA 1980).
Section 39.09(2)(e) provides that a waiver order shall be reviewable pursuant to Section 39.14, Fla. Stat., and the Florida Rules of Appellate Procedure. Section 39.14(1), Fla. Stat., states:
Any child, and any parent or legal custodian of any child, affected by an order of the court may appeal to the appropriate district court of appeal within the time and manner prescribed by the Florida Appellate Rules.
These statutes evidence a legislative policy in favor of allowing appeals from waiver orders in the time and manner set out in Florida Rules of Appellate Procedure i.e. *722 by filing a notice of appeal within 30 days of the date of the order. Fla.R.App.P. 9.140(b). We recognize that this legislative declaration cannot create a right to interlocutory review unless approved by the Supreme Court, State v. Smith, 260 So. 2d 489 (Fla. 1972), but we find such approval in the order adopting the 1977 Florida Rules of Juvenile Procedure, The Florida Bar, Re: Florida Rules of Juvenile Procedure, 345 So. 2d 655 (Fla. 1977), and in Rule 8.220(f) of those rules. In that order, the court states: "[S]tatutes not superseded shall remain in effect as rules promulgated by the Supreme Court." Id. at 655. The Florida Rules of Juvenile Procedure do not indicate that the above statutes were superseded.
Florida Rules of Juvenile Procedure, Rule 8.220(f) states:
After a hearing at which a judge enters an order waiving jurisdiction and certifying a child for trial as an adult, adjudicating a child delinquent, dependent, or ungovernable, or a disposition order, he shall forthwith inform the child, his parents or custodians concerning the right of appeal therefrom, including the time allowed by law for taking an appeal.
If this rule does not contemplate the taking of an appeal from orders waiving jurisdiction, the language is meaningless. The rules of construction applicable to statutes also apply to the construction of rules. Syndicate Properties, Inc. v. Hotel Floridan Company, 94 Fla. 899, 114 So. 441 (1927); Bryan v. State, 94 Fla. 909, 114 So. 773 (1927). We may not presume that the Supreme Court has promulgated a rule which is purposeless or useless. Dickinson v. Davis, 224 So. 2d 262 (Fla. 1969), Department of Revenue v. Merritt Square Corp., 334 So. 2d 351 (Fla. 1st DCA 1976). The rule lists several orders which are final orders of the juvenile court; although as recognized in Mitchell, supra, a waiver order contemplates further court proceedings, it also is final as regards the juvenile process. By inclusion of orders waiving jurisdiction with these other orders, we think the Court has created the right to appeal from waiver orders before the juvenile is transferred into the criminal justice system.
To interpose an appeal immediately prior to the juvenile's entry into the criminal justice system is consistent with the expressed state policy of treating juvenile offenders differently than adult offenders. The emphasis for juvenile offenders is on rehabilitation and restitution rather than on fixing criminal responsibility, guilt and punishment. Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966); Section 39.001(2), Fla. Stat. (1978 Supp.). The legislature and the Supreme Court have recognized that in order to effectuate this policy and insure that a juvenile is properly being transferred into the main stream of the criminal justice system, it is necessary to allow an interlocutory appeal at this time.
The Fifth DCA relies, in part, on the committee notes to Fla.R.App.P. 9.140(b) (1978) which indicates that this rule is intended to supersede all other rules of practice and procedure. In our opinion, neither this committee comment, nor the similar language of Fla.R.App.P. 9.010 (1978), ["These rules shall supersede all conflicting rules and statutes."], indicates a clear intention to eliminate the right of appeal from waiver orders found in Fla.R.Juv.P. 8.220(f) (1977). An intention to supersede or repeal other court rules or statutes must be clearly expressed, Woodgate Development Corporation v. Hamilton Investors Trust, 351 So. 2d 14 (Fla. 1977). Since committee rules are not binding, State ex rel. Evans v. Chappel, 308 So. 2d 1 (Fla. 1975), we cannot construe the comment as expressing such an intention. Nor, considering the history of the appellate and the juvenile rules can we conclude that the Supreme Court intended the appellate rules to eliminate rights granted by the Florida Rules of Juvenile Procedure.
The above quoted language of Fla.R. App.P. 9.010 (1978) has been in existence, with minor modifications, since 1942.[1]*723 With knowledge of this language, the Supreme Court, in 1972, adopted Fla.R.Juv.P. 8.110(h) (1972), retained and renumbered 8.220(f) in the 1977 revision, see above. After the March 1977 revision of the Florida Rules of Juvenile Procedure effective July 1, 1977, the Supreme Court revised the Florida Rules of Appellate Procedure, adopted October 10, 1977, reconsidered December 22, 1977, effective March 1, 1978, carrying forward the phrase quoted above. Under these circumstances, we cannot conclude that the Supreme Court adopted Fla. R.Juv.P. 8.110(h) (1972) and retained it in 1977, 8.220(f) without intending that it be given full force and effect. Nor are we willing to conclude that the Supreme Court adopted Fla.R.Juv.P. 8.220(f) in March 1977 only to repeal it in October 1977 simply by retaining language extant since 1942.
We recognize this ruling directly conflicts with that of In The Interest of: R.J.B., supra and so certify for the purpose of compliance with the Fla.R.App.P. 9.030(a) (2)(A)(vi) (1980).
We now turn to the merits. On 12/24/78, G.A. shot and killed his mother. According to his statement, he fired the gun after loading it with what he thought was an empty shell. Investigator Ingram testified that when he arrived on the scene, Deputy Wallace had already given G.A. his Miranda warnings and that he, Ingram, did not repeat them. Ingram testified he questioned G.A. and obtained a statement, and that G.A. would not have been allowed to leave the premises had he attempted to do so. After the questioning was completed, G.A. was released to a family member.
Appellant contends that G.A. was taken into custody for purposes of activating the running of various rule and statutory time limits. On the facts of this case, we agree. Section 39.01(33), Fla. Stat., (1978 Supp.) defines "Taken into custody" as the
[S]tatus of a child immediately when temporary physical custody over the child is attained by a person authorized by law, pending the child's release, detention, placement, or other disposition as authorized by law. [e.s.]
The law enforcement officials exercised temporary physical custody over G.A. by detaining him for questioning in connection with his alleged commission of a delinquent act G.A. was given Miranda warnings and was not free to leave until the officers determined that he should be released to a family member.[2]
The investigating officers who detained G.A. and questioned him did not file a written juvenile complaint report (JCR) with the intake office within three days of 12/24/78 as required by Section 39.03(2), Fla. Stat., (1978 Supp.) Nor did any law enforcement agency file a sworn complaint with the clerk of the circuit court as required by Section 39.03(4)(a), Fla. Stat., (1978 Supp.) Instead, the state attorney immediately sought a grand jury indictment for murder in the first degree which, he has the authority to do, but which does not toll the time for filing the petition for delinquency. In re S.E.B., 365 So. 2d 451 (Fla. 1st DCA 1979).
Under Fla.R.Juv.P. 8.110(e) (1977) a juvenile is entitled to release if the petition for delinquency is not filed within thirty[3] days of the date the JCR is referred to *724 the intake officer. The Supreme Court has ruled that this right of release is substantive and the petition for delinquency must be dismissed with prejudice if untimely filed. In The Interest of S.R. v. State, 346 So. 2d 1018 (Fla. 1977). The three day rule, however, is procedural and absent a showing of prejudice, failure to timely file the JCR does not require dismissal. In The Interest of G.L.T., Jr. v. State, 366 So. 2d 25 (Fla. 1978). The Third DCA, faced with this same question, analyzed the statutes and the case law and concluded that the juvenile's substantive rights are violated and he is entitled to relief if the petition for delinquency is not filed within 33 days of the date the juvenile is taken into custody. State v. G.D.C., 372 So. 2d 514 (Fla. 3d DCA 1979). We agree with this analysis. Here, the JCR and the petition for delinquency were both filed on February 21, 1979, 59 days after G.A. was taken into custody, 26 days late.
We agree with the trial court that G.A. needs rehabilitation. However, under the law a juvenile is entitled to release if the petition for delinquency is not timely filed. We therefore, have no choice but to order that G.A. be discharged.
Because of our decision, it is not necessary to treat the other points raised by appellant.
Reversed and remanded with instructions to discharge the defendant.
MILLS, Chief Judge, and McCORD and THOMPSON, JJ., concur.
NOTES
[1] Supreme Court of Fla. Rules of Procedure, Rule 39, (1942); Supreme Court of Fla. Rules of Procedure, Rule 50, (1955); Fla.R.App.P. 1.4 (1962), Fla.R.App.P. 9.010 (1978).
[2] Compare In the Interest of R.L.J., 336 So. 2d 132 (Fla. 1st DCA 1976). R.L.J. involved the custodial interrogation of a juvenile and the voluntariness of his confession elicited during that custody. In R.L.J. we also addressed the question of whether Chapter 39, Fla. Stat., (1976) prohibited all custodial interrogations of nonarrested juveniles and concluded that it did not. R.L.J. was decided under the 1976 statute however, which did not include the word "immediately" in defining "taken into custody". Since the legislature is presumed to know the prior existing law and the constructions placed on it, Dickinson v. Davis, 224 So. 2d 262 (Fla. 1969), we must presume that the addition of "immediately" was intended to convey a meaning different from prior constructions. By the current definition of "taken into custody" we think the legislature intended that even temporary detention of juveniles would start the running of speedy trial and other time limits.
[3] Section 39.05(6) Fla. Stat., (1978 Supp.) provided for 45 days, and June 9, 1980, the rule was amended to conform to the statute. On July 1, 1980, the legislature amended the statute to start the 45 days running from the date the child was taken into custody. At the time of these proceedings, the 30 day rule was in effect and superseded the statute. P.L.H. v. Brownlee, 389 So. 2d 649 (Fla. 5th DCA 1980). Here the difference is immaterial since the petition for delinquency was not filed within 30 days nor within 45 days. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601106/ | 445 F. Supp. 1231 (1978)
David L. MILLS, Petitioner,
v.
H. B. SHEPHERD et al., Respondents.
No. C-C-77-49.
United States District Court, W. D. North Carolina, Charlotte Division.
February 14, 1978.
*1232 Allan W. Singer, Weinstein, Sturges, Odom, Bigger & Jonas, P.A., Charlotte, N.C., for petitioner.
Richard N. League, Asst. Atty. Gen., North Carolina Dept. of Justice, Raleigh, N.C., for respondents.
JUDGMENT
McMILLAN, District Judge.
David L. Mills, a prisoner of the State of North Carolina, was tried for second degree murder, was convicted of voluntary manslaughter, and was sentenced to twenty years in prison at the March 13, 1975, session of the Mecklenburg County Superior Court. He petitions for a writ of habeas corpus on the grounds that (1) he was denied the right to a speedy trial; (2) his trial counsel failed to demand a speedy trial and was thus inadequate in representing him; (3) his motion at trial for nonsuit was improperly overruled; (4) the trial judge failed to charge on the issue of self-defense; (5) the trial judge wrongly charged on the issue of malice; and (6) he was denied counsel and the right to a hearing on his post-conviction petition.
*1233 Respondents have answered and moved to dismiss and have submitted the record, including a trial transcript, of the state criminal proceedings. The petitioner's claims raised several substantial questions and counsel was appointed to represent him. On January 4, 1977, the motion to dismiss was considered at a hearing in which both parties were represented by counsel. At that time the court indicated that the petition would probably be dismissed, and petitioner's attorneys orally requested a certificate of probable cause to appeal.
Petitioner, then aged seventeen or eighteen years, was arrested on July 18, 1973, in connection with the apparent homicide of Billy Francis Brinkley on the night of July 13, 1973. Mr. John J. Plumides appeared as counsel for petitioner as early as July 24, 1973; upon petitioner's affidavit of indigency filed October 3, 1973, Plumides was appointed by the court to represent him. Petitioner was indicted for murder on December 3, 1973. On March 19, 1974, someone in the Mecklenburg County Sheriff's office informed the District Attorney that petitioner had been transferred from the Mecklenburg County Jail to the Department of Correction to begin serving consecutive sentences of two years and four to five years imposed on previous convictions, and suggested that a detainer be filed with the Department of Correction.
Petitioner was brought to trial on a charge of second degree murder, on March 10, 1975, twenty months after his arrest and twelve months after he began serving time on his previous sentences. The only explanation for the state's delay is found in respondents' answer: "It is a matter of record that petitioner was serving another sentence in state prison during the time of the delay. Accordingly, the inference arises by virtue of the delay that he hoped to lay low and not be tried at all, and that the state was similarly in no hurry by virtue of the fact that he was already incarcerated." For his part, petitioner says that it was his trial counsel's responsibility to demand a speedy trial. Petitioner contends he was prejudiced by the delay because of the detainer's effect on his custody level and his parole chances, the lost opportunity for concurrent sentencing, and the fact that he lived for twenty months with the thought of facing public charges which caused him to "associate with hardened criminals and among other things, to participate in unpopular causes such as his escape."
Petitioner did not testify in his own defense and did not offer nor elicit any evidence except by cross-examination.
The physical and background evidence for the prosecution showed that on July 14, 1973, around mid-day, the body of Billy Francis Brinkley, deceased, was found in a few feet of water at Paw Creek Cove in Mecklenburg County. Brinkley was about forty-three years of age, was five feet six inches or so in height, weighed between 130 and 150 pounds, was a hair dresser and cosmetic salesman, and was not married. He owned a Mustang automobile. His death was the result of head injuries and a massive crushing injury to his chest caused by blunt forced trauma and consistent with his having been kicked. No weapon was found. Human hair was found on the boots that petitioner wore and blood was found on the blue jeans that petitioner wore on the night of July 13, 1973. On cross-examination a state's witness testified that the head injuries required a blow of great force and were consistent with a fall upon rocks such as were situated in the area where the body was found, and that drowning could have been a contributing cause of death. The cove is an arm of a lake on the Catawba River and the level of the lake rises and falls several feet from time to time due to the operation of the dam at a nearby power plant. Brinkley's Mustang automobile and some jewelry which petitioner admitted taking from Brinkley were in the possession of petitioner a few hours following the apparent time of Brinkley's death.
The principal oral testimony connecting petitioner with the crime came from two men with whom petitioner was rooming at the time. These roommates were Edward Black and James E. Pate. Pate was at home on the night of July 13, 1973, when petitioner returned an hour or two after *1234 midnight. At that time petitioner had Brinkley's automobile in his possession and he displayed Brinkley's ring and a watch and a bracelet (which were produced at the trial), and told Pate that he had "rolled a queer." Petitioner, according to Pate, said that he had met Brinkley in a bar, that Brinkley had offered him money (twenty dollars) to commit a homosexual act; that they drove out to Paw Creek Cove in Brinkley's automobile; that Brinkley grabbed his privates and made a "pass" at him; that Brinkley did not have as much money as he had promised; that petitioner fought him off, and that Brinkley persisted; that petitioner then became "scared," pushed Brinkley out of the car, chased him a short distance, knocked him down, kicked him, pulled his clothes down to hinder pursuit, took the jewelry from him, left him lying near the water, and drove home in Brinkley's Mustang automobile. Petitioner complained of a swollen or sprained foot.
The evidence of the roommate Black was the same in substance, though it varied slightly in detail, as to what petitioner recited to Black about mid-afternoon on the same day, July 14, 1973.
There was evidence that petitioner, who had freely admitted to his friends that he had robbed and assaulted Brinkley, was shocked and surprised when told of Brinkley's death, that his then impulse was to go to the police, and that he cooperated with the police in finding the boots and blue jeans at his home.
Petitioner's motion for a nonsuit at the close of the evidence was denied. The court heard arguments on petitioner's request for a self-defense instruction, but did not charge the jury on that issue. The judge's instructions concerning the burden of proving malice reads as follows:
"And I charge you for you to find the defendant guilty of second degree murder, the State must prove two things beyond a reasonable doubt; first, that the defendant intentionally and with malice killed the said Billy Brinkley with a blunt object, his boot.
"If the State proves beyond a reasonable doubt that the defendant intentionally killed Billy Brinkley with a deadly weapon, or intentionally inflicted a wound upon Billy Brinkley with a deadly weapon that proximately caused his death, the law raises two presumptions:
"First, that the killing was unlawful; second, that it was done with malice. Then, nothing else appearing, the defendant would be guilty of second degree murder.
"In order, members of the jury, to reduce this crime to manslaughter, the defendant must prove not beyond a reasonable doubt, but simply to your satisfaction, that there was no malice on his part.
"To negate malice, and thereby reduce the crime to manslaughter, the defendant must satisfy you of three things; first, that he, David Mills, in kicking and beating the deceased, Billy Brinkley, that he did this in the heat of passion. . . .
"Second, that this passion was produced by acts of the deceased, Billy Brinkley, which the law regards as adequate provocation. . . .
"And, third, that the beating and kicking of the deceased, Billy Brinkley, took place so soon after provocation, passion of a person of average mind and disposition would not have cooled. . . ."
Petitioner did not object to the malice instruction.
Petitioner was convicted of voluntary manslaughter and was sentenced to twenty years in prison, to be served at the expiration of his previous sentences.
Petitioner appealed his conviction to the North Carolina Court of Appeals, asserting errors by the trial judge in overruling the motion for nonsuit and in failing to charge on self-defense. The court found no error, in an opinion reported at 28 N.C.App. 219, 220 S.E.2d 209 (1975), which reads in full as follows:
"Defendant's record on appeal was docketed on the 109th day after entry of judgment, and the 28 April 1975 order *1235 extending time does not validly extend the time for docketing. The record fails to present documents or events in chronological order. The record contains no exceptions, nor does either of the two assignments of error refer to an exception. The appeal, therefore, can present only the face of the record for review. Because of defendant's indigency, rather than dismiss the appeal, we have considered this appeal as an exception to the judgment, presenting the face of the record for review. We have reviewed the record and find that defendant received a fair trial free from prejudicial error.
"No error."
Petitioner did not seek a writ of certiorari from the North Carolina Supreme Court.
On July 1, 1976, petitioner filed a petition for post-conviction relief in Mecklenburg County Superior Court alleging that he had been denied the right to a speedy trial and to effective assistance of counsel, and requesting an evidentiary hearing. The petition was denied without a hearing on August 10, 1976, by Judge Fred Hasty who then appointed counsel to seek a writ of certiorari from the North Carolina Court of Appeals. Counsel filed a brief with that court, but certiorari was denied on December 21, 1976.
Though petitioner did not seek certiorari on direct appeal, respondents' answer does not argue that petitioner has failed to exhaust state remedies on the nonsuit and instruction claims. The court concludes that respondents have waived any exhaustion defense. See Wade v. Peyton, 378 F.2d 50 (4th Cir. 1967); Jenkins v. Fitzberger, 440 F.2d 1188, 1189 n.2 (4th Cir. 1971).
SPEEDY TRIAL
In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the Supreme Court identified four factors relevant to a claim of denial of the constitutional right to a speedy trial: the length of the delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.
A twenty-month pretrial delay is long enough to trigger serious inquiry into the remaining factors but petitioner has otherwise failed to make out a case for violation of his right to a speedy trial.
There is no showing of substantial prejudice to petitioner. Petitioner did not lose the opportunity for concurrent sentencing. Though petitioner had five to six years still to serve on prior convictions, the trial judge ordered petitioner's twenty-year sentence to be served consecutively. There is no reason to believe a trial date twelve or even sixteen months sooner would have netted concurrent sentencing. The pending charges did not substantially affect petitioner's custody level and parole chances during the first year of consecutive two-year and four-to-five-year sentences. The only impact shown was the demotion from minimum custody to medium security one month before trial. Whatever mental anguish petitioner suffered as a result of the delay did not have such an impact that he sought a speedy trial and there is no evidence that he requested his attorney to seek one. A request for speedy trial is not a condition precedent to habeas relief but it is revealing as to the psychological harm petitioner felt from the delay.
Petitioner does not allege and the record does not show that the pretrial delay impaired the petitioner's defense of his case. Though one roommate testified that the delay made it impossible to remember everything petitioner said on July 14, 1973, both roommates independently recited similar statements made by the petitioner to each of them on that day in some detail and with little conflict. Neither "recalled" petitioner stating that he only kicked when Brinkley persisted in grabbing him outside the car, making it quite likely that no such statements were made rather than that they were made and forgotten.
Petitioner does not allege any malicious intent on the part of the prosecution, whose case principally depended on the memories *1236 of its witnesses. Petitioner's counsel may have decided against demanding a speedy trial for strategic reasons. His client's case had little to lose and something to gain. Whatever the reasons, counsel is not inadequate for failing to demand a speedy trial where his client must remain in custody in any case and has expressed no desire for one.
Twenty months was too long to wait to try petitioner who may have suffered some unnecessary anguish and inconvenience. The record, however, does not show such prejudice to petitioner that he was deprived of his right to a speedy trial or was prejudiced by the delay. See Morrison v. Jones, 565 F.2d 272 (4th Cir. 1977), cert. denied 46 U.S.L.W. 3553 (1978).
TRIAL ERRORS
Motion for nonsuit. The motion for nonsuit was properly denied. Strong evidence indicated guilt, and there is no requirement that such evidence exclude every reasonable hypothesis consistent with innocence as petitioner would argue. United States v. Chappell, 353 F.2d 83 (4th Cir. 1965).
Self-defense instruction. To obtain habeas relief on the ground that the trial judge improperly instructed the jury, petitioner must show that the erroneous charge "by itself so infected the entire trial that the resulting conviction violates due process," a burden especially heavy to meet where the error lay in omitting an instruction. Henderson v. Kibbe, 431 U.S. 145, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977).
Until recently, the omission of a self-defense instruction, even where the evidence clearly raised the issue, did not necessarily constitute a due process violation. See, e. g., Kearney v. Peyton, 360 F.2d 589 (4th Cir. 1966). However, Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), as interpreted by Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), holds that the state must bear the burden of proving beyond a reasonable doubt every fact which must be "proved or presumed" in order to constitute the crime. Both malice and unlawfulness, which include the absence of self-defense, are elements of second-degree murder in North Carolina. State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963); State v. Adams, 241 N.C. 559, 85 S.E.2d 918 (1955). Both are presumed upon proof beyond a reasonable doubt of intentional wounding with a deadly weapon. State v. Jones, 287 N.C. 84, 214 S.E.2d 24 (1975). Mullaney applies retroactively to petitioner's case. Hankerson v. North Carolina, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306 (1977). However, the Supreme Court also held in Hankerson that Mullaney does not require a self-defense instruction unless the criminal defendant presents at least some evidence of heat-of-passion or self-defense. 432 U.S. at 237 n.3, 97 S. Ct. 2339.
Omission of any instruction on an issue the prosecution must prove beyond a reasonable doubt heavily implicates a due process violation where there is some evidence to support a factual dispute. In the knowledge that the "some evidence" tripwire now determines whether the omission of a self-defense instruction comports with due process, the court believes that petitioner's evidence did not trip the wire.
In North Carolina, self-defense is established where the slayer is free from blame in the altercation, was the victim of a felonious assault or "retreated to the wall" from a non-felonious attack, and used only that force which reasonably appeared necessary to him to protect himself from death or great bodily harm. "Where there is evidence that defendant acted in self-defense, the court must charge on this aspect even though there is contradictory evidence by the State or discrepancies in defendant's evidence." State v. Dooley, 285 N.C. 158, 163, 203 S.E.2d 815, 818 (1974).
Even ignoring the discrepancies in the evidence brought out on cross-examination, there was no evidence that defendant was free from fault in bringing on the *1237 encounter, that petitioner reasonably or otherwise feared death or great bodily harm, that petitioner was the victim of a felonious assault, or that petitioner could not have retreated at any time during the encounter. Uncontradicted evidence showed that petitioner went to Paw Creek Cove knowing the intentions of his companion, that in response to sexual advances petitioner became upset, and that rather than leave the car or the area petitioner pushed Brinkley out of Brinkley's car and without further provocation beat and kicked him. Petitioner was not entitled to an instruction on the issue of self-defense.
On the other hand the North Carolina Supreme Court has reversed for failure to instruct on self-defense when the evidence of the defense was fairly minimal. State v. Deck, 285 N.C. 209, 203 S.E.2d 830 (1974). Although that case does not affect this decision, the change in the state's burden of proof since Deck does raise substantial questions that warrant the grant of a certificate of probable cause to appeal from the denial of the writ.
Malice instruction. The trial judge charged the jury that petitioner bore the burden of satisfying them as to heat of passion. The jury determined that petitioner had met that burden, convicting him of manslaughter and not second-degree murder. Under Mullaney and Patterson, the instruction is constitutional error, and under Hankerson v. North Carolina, petitioner is entitled to the benefit of those decisions. Petitioner did not object to the instruction, but North Carolina does not require an exception at trial to preserve the issue for appeal. State v. Lambe, 232 N.C. 570, 61 S.E.2d 608 (1950).
The question arises whether the error became harmless upon the jury's verdict. Errors of constitutional dimension are not harmless unless the court "is able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967). The uncontradicted evidence shows that petitioner kicked the deceased and left him by the water where he was found dead of head injuries and a massive crushed chest. Petitioner's main defense was that he kicked in passion and not in a way that could kill. The jury believed the former despite the flawed instruction. The error was harmless beyond a reasonable doubt.
POST-CONVICTION HEARING
Failure to provide counsel or a hearing in a state post-conviction proceeding may in some cases provide a basis for reexamining state court findings of fact. They are not constitutional violations that affect the legality of petitioner's continued confinement. Noble v. Sigler, 351 F.2d 673 (8th Cir. 1965).
The court is presently of the opinion that all of petitioner's claims should be denied.
IT IS THEREFORE ORDERED:
1. That the petition is dismissed for the reasons stated in this order.
2. That the petitioner's motion for a certificate of probable cause to appeal from this decision is allowed. 28 U.S.C. § 2253. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601153/ | 1 So. 3d 957 (2009)
Demetrius TISDALE, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2008-KA-00098-COA.
Court of Appeals of Mississippi.
January 27, 2009.
Edmund J. Phillips, Christopher A. Collins, attorneys for appellant.
Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
Before MYERS, P.J., ISHEE and CARLTON, JJ.
MYERS, P.J., for the Court.
¶ 1. Demetrius Tisdale appeals his conviction in the Circuit Court of Neshoba County of sale less than 30 grams of marijuana and sentence of two and one-half years in the custody of the Mississippi Department of Corrections. Tisdale argues that the jury's verdict was against the overwhelming weight of the evidence. Finding no error, we affirm.
FACTS
¶ 2. On April 11, 2006, Officer Neal Higgason set up a pre-buy meeting with a confidential informant, Bobby Stanley *958 (Bobby), for the purpose of "making a buy" in Philadelphia, Mississippi. Officer Higgason, with another officer witnessing, searched Bobby, his wife, Nicolette Stanley (Nicolette), and the Stanleys' vehicle. Officer Higgason then provided Bobby with $20 to make the buy and outfitted him with a concealed wire and camera.
¶ 3. At trial, the State produced testimony that Bobby then telephoned someone he called "Mete" to set up a purchase of marijuana. Officer Higgason testified that he kept a visual on the Stanleys during the buy and personally witnessed Tisdale pick up Bobby from the buy location, drive around the block, and return him to the same location. Officer Higgason then recovered what was later determined to be 2.1 grams of marijuana from Bobby.
WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
¶ 4. In Bush v. State, 895 So. 2d 836, 844(¶ 18) (Miss.2005), the supreme court discussed appellate review of the weight of the evidence supporting a jury's verdict:
When 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.... However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, as the "thirteenth juror," the court simply disagrees with the jury's resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.
(Citations and internal quotations omitted).
¶ 5. Tisdale, who did not testify at trial and produced no witnesses in his defense, does not cite to any conflicting testimony. Rather, he argues on appeal that the officers failed to thoroughly search the Stanleys prior to the buy and that the couple may have had the drugs in their possession prior to the sale. The Stanleys, he argues, had a motive to lie because they had outstanding fines and would not have been paid unless a sale was completed. Tisdale also elicited admissions from Bobby that he had used marijuana in the past and had a criminal record that included petit larceny.
¶ 6. Officer Higgason testified that he searched the Stanleys and their vehicle and did not find any drugs, paraphernalia, or money. Although he conceded on cross-examination that he did not perform an invasive search of Nicolette's person or search her or her husband's undergarments, he explained on redirect that he had followed departmental procedures and that he was satisfied with the search. Officer Higgason also testified that he followed the Stanleys to the buy location, witnessed Bobby enter Tisdale's vehicle, followed it "around the block," and identified Tisdale as the driver. Bobby testified that he purchased the marijuana from Tisdale and that neither he nor his wife was in possession of drugs prior to the purchase. The testimony of both witnesses was corroborated by the surveillance videotape.
¶ 7. On our review of the record, viewing the above evidence in a light most favorable to the verdict, we find that the jury's verdict was not so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.
*959 ¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF NESHOBA COUNTY OF CONVICTION OF SALE OF MARIJUANA AND SENTENCE OF TWO AND ONE-HALF YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601149/ | 379 N.W.2d 255 (1986)
In re William Robert LUFSKY, Jr.
No. C6-85-1981.
Court of Appeals of Minnesota.
January 14, 1986.
Joan B. Tietjen, Minneapolis, for appellant William R. Lufsky, Jr.
Robert M.A. Johnson, Anoka Co. Atty., Janice Allen Wheat, Asst. Co. Atty., Anoka, for respondent.
Considered and decided by POPOVICH, C.J., and PARKER and FOLEY, JJ., with oral argument waived.
OPINION
FOLEY, Judge.
Lufsky seeks review of an October 8, 1985 order, finding him to be a mentally ill person and committing him to the Minnesota Security Hospital, and from supplemental findings of fact issued on October 14. We affirm.
FACTS
William Robert Lufsky, Jr. is a 33-year old man with a history of treatment for *256 mental illness. He was released from the Minnesota Security Hospital in December 1983 and continued treatment on an outpatient basis. Lufsky lived with his parents following his release from the hospital.
On September 18, 1985 Lufsky became angry with his 78-year old father. He tied an electrical cord around his father's neck and dragged him out of the house. When Lufsky's mother intervened, he also tied a noose around her neck. Lufsky threatened his parents, tore the phone from the wall, threw and burned household furnishings, and disabled the family car by removing spark plug wires.
The next morning Lufsky's father walked to a store and called police. Four loaded guns and a machete, which the parents said belonged to Lufsky, were removed from the home. Lufsky was later apprehended and a petition for commitment was filed.
At the commitment hearing on October 8, the court appointed examiner testified that Lufsky is mentally ill, with a diagnosis of manic depression. Examiner James Gilbertson described Lufsky's tendency to paranoid thoughts and to aggressive and explosive behavior. Although medications help to manage Lufsky's anger and aggression, he had stopped taking prescribed medications at the time of the September incident.
Gilbertson recommended that Lufsky's medications be stabilized before his release from the hospital. After stabilization, Gilbertson recommended discharge to a community facility for supervised aftercare. However, if no facility was available, Gilbertson testified hospitalization was the least restrictive alternative. The examiner told the court that he was aware community facilities were reluctant to accept Lufsky until he demonstrated a longer period of stable behavior.
Even when stabilized, Gilbertson warned that Lufsky would always be mentally ill, although not always actively psychotic. Kevin Ferris, Executive Director of the Manic Depressive Society, has known Lufsky for approximately two years, since his release from the Security Hospital. Ferris found Lufsky reluctant to continue in any structured treatment program and irresponsible about taking medications. Ferris recommended a secure environment where medication compliance can be monitored.
Ferris testified Lufsky has paranoid concerns about hospitalization at Anoka State Hospital. The record indicates that Lufsky was transferred from Anoka to the Security Hospital after threatening Anoka staff. Ferris believed Lufsky could again lash out at Anoka staff. Gilbertson testified Anoka was an acceptable placement, if Lufsky was cooperative with treatment. If not, or if Anoka staff were afraid of Lufsky, Gilbertson felt Anoka would be an inappropriate placement.
Roy Newcombe, an Anoka County social worker assigned to Lufsky, told the court about his efforts to place Lufsky in various community facilities. Lufsky was interviewed at two facilities and Newcombe contacted two other potential community placements. All rejected Lufsky because of the recency of the violent September incident. In Newcombe's opinion, there remained no less restrictive alternative to placement at a state hospital.
The trial court received the pre-petition screening report, without objection from Lufsky's counsel, to avoid the need to call additional witnesses. Lufsky called no witnesses in his own behalf. The trial court found Lufsky was a mentally ill person as defined by statute and no reasonable alternative to commitment existed. Lufsky was committed to Minnesota Security Hospital, which was authorized to administratively transfer him to Anoka State Hospital, if appropriate. Additional findings of fact, addressing Lufsky's behavior, the examiner's testimony, and the lack of alternatives, were issued on October 14.
Appellant argues that the trial court erred in finding he was a mentally ill person and by committing him to the Security Hospital.
ISSUES
1. Did the trial court err by finding appellant was a mentally ill person as defined *257 by Minn.Stat. § 253B.02, subd. 13 (1984)?
2. Were less restrictive alternatives to Minnesota Security Hospital properly rejected?
ANALYSIS
I.
A mentally ill person suffers from a substantial psychiatric disorder which grossly impairs judgment, behavior, recognition of reality, reasoning, or understanding. The disorder must also be "manifested by instances of grossly disturbed behavior or faulty perceptions" and must result in the proposed patient posing "a substantial likelihood of physical harm to himself or others as demonstrated by" a recent attempt or threat of harm or a failure to provide necessities of life. Minn.Stat. § 253B.02, subd. 13 (1984).
Lufsky does not dispute the diagnosis of a substantial psychiatric disorder, but argues the evidence was insufficient to find the disorder was manifested by grossly disturbed behavior or faulty perceptions. We will not disturb the trial court's factual findings unless they are clearly erroneous. Minn.R.Civ.P. 52.01. In fact, the record amply supports a finding that Lufsky's illness was manifested by grossly disturbed behavior. He assaulted his parents, destroyed furnishings and disabled the family vehicle.
Lufsky also argues the evidence was insufficient to establish that he, as a result of mental illness, "poses a substantial likelihood of harm to himself or others[.]" Minn.Stat. § 255B.02, subd. 13. The examiner testified that Lufsky is at very high risk of harming himself or others, especially when actively psychotic.
At the time of the commitment hearing, Lufsky's condition had partially stablized. He argues that this renders the likelihood of recurring violence insubstantial. While the likelihood of future violence is a factual determination for the trial court, the statute requires that determination be supported by evidence that the proposed patient has recently attempted or threatened physical harm. Id.
It is clear Lufsky attempted to harm his parents only two and one half weeks before the commitment hearing. The record shows Lufsky is resistant to continued treatment, previously stopped taking prescribed medications, and had six to eight violent episodes in the past two years. The court's finding that Lufsky is likely to harm those around him is not clearly erroneous, even though his active psychotic symptoms may have partially subsided during the brief hospitalization prior to the commitment hearing. See In re Malm, 375 N.W.2d 888 (Minn.Ct.App.1985).
II.
A mentally ill person may be committed only if the trial court finds there are no suitable alternative dispositions. Minn. Stat. § 253B.09, subd. 1 (1984). The trial court must carefully consider alternatives to involuntary hospitalization. In re Davis, 371 N.W.2d 91 (Minn.Ct.App.1985).
The record in this case shows stabilization of Lufsky's behavior through medications was necessary. Ferris testified that Lufsky was resistant to voluntary outpatient treatment, which had already proved unsuccessful. Both Ferris and the court-appointed examiner recommended commitment to a secure facility. In light of the record, the trial court did not err by rejecting alternatives to commitment.
A separate area in which the trial court must consider alternatives is placement. The patient must be committed "to the least restrictive treatment facility which can meet the patient's treatments needs[.]" Minn.Stat. § 253.09, subd. 1. Examiner Gilbertson testified that placement in a community facility might be appropriate, but recognized such facilities were reluctant to accept Lufsky until he demonstrated a longer period of stable behavior. Lufsky's social worker told the court there were no appropriate and available community placements. As a result, Gilbertson testified, "we have run out of *258 options less restrictive options for Mr. Lufsky at [this] time." Where no community facilities have openings or will accept the patient, the trial court properly rejects them as alternatives. See In re Knapp, 351 N.W.2d 391 (Minn.Ct.App.1984).
Gilbertson recommended hospitalization, and believed Anoka State Hospital staff would be unable to effectively treat Lufsky if they are afraid of him. Lufsky's medical records show he was previously transferred to the Security Hospital after threatening Anoka staff. The trial court committed Lufsky to the Security Hospital and noted that he may be transferred to Anoka State Hospital if a secure environment becomes unnecessary. See Minn.Stat. § 253B.14 (1984). On the record before us, we conclude that the trial court did not clearly err in rejecting less restrictive alternatives and committing Lufsky to the Minnesota Security Hospital.
DECISION
The trial court properly found Lufsky was a mentally ill person, as defined by statute, and committed him to the Minnesota Security Hospital.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601146/ | 379 N.W.2d 318 (1985)
AMERICAN INDIAN AGRICULTURAL CREDIT CONSORTIUM, INC., Plaintiff and Appellee,
v.
FORT PIERRE LIVESTOCK, INC., Defendant and Appellant.
No. 14874.
Supreme Court of South Dakota.
Considered on Briefs September 9, 1985.
Decided December 31, 1985.
*319 Michael Carter, of Maher, Carter & Bode, Pierre, for plaintiff and appellee.
Charles M. Thompson, of May, Adam, Gerdes & Thompson, Pierre, for defendant and appellant.
FOSHEIM, Chief Justice (on reassignment).
This is an appeal from a grant of summary judgment in a conversion action. We affirm.
On August 4, 1976, American Indian Agricultural Credit Consortium, Inc. (Ag Credit), loaned $19,000.00 to Kenneth H. West (West) of Eagle Butte, South Dakota. To secure the debt, West executed a note and security agreement granting Ag Credit a first lien upon cattle owned by West which were branded or to be branded "[BAD TEXT] on right ribs, with an orange ear tag right ear." A financing statement containing the same language was filed with the Dewey County, South Dakota, Register of Deeds on August 13, 1976, and subsequently continued on August 17, 1981.
On October 8, 1981, Ag Credit mailed to numerous livestock markets, including Ft. Pierre Livestock, a form letter which stated, inter alia, "by virtue of a financing statement filed with the Register of Deeds in each respective county, [we] hold a FIRST mortgage on all livestock owned or claimed by individuals listed below." Specifically, the letter stated that Ag Credit held a first mortgage on all livestock owned or claimed by "West, Kenneth H., Box 956, Eagle Butte, S.D. 57625, Cattle Branded [BAD TEXT] right rib." During depositions taken pursuant to this litigation, Ft. Pierre Livestock acknowledged: receipt of the letter; that said letter was in their Rolodex file; and, that Ft. Pierre Livestock employees regularly and routinely referred to the file prior to issuing checks to individuals.
Prior to November 5, 1982, payments on the debt were made by West, totaling approximately $11,400.00. On that date, however, West consigned 123 head of cattle to Ft. Pierre Livestock for sale. These cattle were branded [BAD TEXT] but had no orange ear tags. Initially, Ft. Pierre Livestock issued a check made jointly to Kenneth H. West and Ag Credit because Ag Credit had notified Ft. Pierre Livestock of its security interest in West's cattle. When West was presented with the check, however, he refused to accept it, explaining that he was not Kenneth H. West, but Kenny West and that the check should be made out to him alone. Ft. Pierre Livestock relied on West's representations and reissued a check to West only in the amount of $41,755.42. Subsequently, this conversion action was commenced by Ag Credit to recover from Ft. Pierre Livestock the balance due on West's note.
Ft. Pierre Livestock answered, denying the cattle sold were those covered under the security agreement. Motions for summary judgment were filed by both parties. In a letter dated January 2, 1985, the trial *320 court ruled on the motions and found as a matter of law that, although the cattle did not have the orange ear tags referred to in the security agreement and financing statement, once a proper filing was made and once actual notice was received by Ft. Pierre Livestock, the sale barn had a duty to issue the check jointly to West and Ag Credit.
On appeal, Ft. Pierre Livestock contends that the cattle sold were not those secured under the security agreement. They do not dispute that West owned the cattle sold, but do argue that Ag Credit did not have a security interest in those "particular" cattle sufficient to maintain a conversion action. The trial court's letter granting summary judgment states:
The only fact that may remain in some dispute is whether the cattle had orange ear tags or not when they went through the sale ring. The defendant, Ft. Pierre Livestock, Inc., maintains they had the brand on them indicated in the security agreement, but that they did not have the ear tag when they went through. Plaintiff has no knowledge of whether they had the orange ear tags or not, nor at this time do they have any witnesses that could testify that they did. The defendant claims that his witnesses could establish at trial they did not have the orange ear tags on. For the purposes of this summary judgment, this Court is assuming as a fact that they did not have the orange ear tag on them. Having made this assumption, the Court gives summary judgment to the plaintiff for the amount left due and owing on the note plus interest thereon.
Under SDCL 15-6-56(c), summary judgment is properly awarded "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." "Since a summary judgment presupposes there is no genuine issue of fact, findings of fact and conclusions of law are unnecessary." Wilson v. Great Northern Railway Company, 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968). When addressing a motion for summary judgment, however, it is to be remembered that: (1) the evidence presented must be viewed most favorably to the nonmoving party; (2) the movant has the burden of proof to clearly show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; (3) summary judgment was never intended to be used as a substitute for a court trial where any genuine issue of material fact exists; (4) a belief that the nonmoving party will not prevail at trial is not an appropriate basis for granting the motion on issues not shown to be sham, frivolous, or so unsubstantial as to obviate the futility of their litigation; and, (5) summary judgment is an extreme remedy and should be awarded only when the truth is clear and reasonable doubts touching the existence of a genuine issue should be resolved against the movant. Id.
We believe that summary judgment was proper inasmuch as there were no genuine issues of material fact, namely, whether the cattle in question were secured by the security agreement and financing statement. In support of its ruling on Ag Credit's motion for summary judgment, the court stated:
The reason for the summary judgment is that the Court concludes as a matter of law that once a proper filing was made, and once the actual notice was had by the defendant, the Fort Pierre Livestock, Inc., it had a duty to issue the check jointly as requested by the plaintiff. South Dakota law provides under such circumstances that the livestock company is liable for failure to recognize such a security agreement.
While the security agreement and financing statement included a "with an orange ear tag right ear" clause in the description of the cattle covered, that was nothing more than additional or surplus identification. Here, Ft. Pierre Livestock was given actual notice only of the brand identification of the secured cattle. The orange ear *321 tags were not material to and, therefore, could not control, the identification process. They could not be relied on as a dependable means of identification since, unlike a brand, ear tags are easily removed. The trial court properly determined that, as a matter of law, that Ag Credit had a perfected security interest in the cattle and that there was no material issue of fact[1] concerning whether Ft. Pierre Livestock had received actual notice of the security interest. Therefore, the summary judgment of conversion was properly entered.
The summary judgment is affirmed.
MORGAN, J., and HERTZ, Acting J., concur.
HENDERSON, J., concurs with a writing.
WUEST, Acting J., dissents.
HENDERSON, Justice (concurring).
I concur fully with the majority opinion herein. The ear tags are not controllingthey are transitory. Brands, burned into the hide, do not go away. Ear tags can fall off; a brand does not fall off.
I write to particularly distinguish the present case from that addressed in Aberdeen PCA v. Redfield Livestock, 379 N.W.2d 829 (S.D.1985). In the present case, the livestock sales pavilion had actual notice that West's cattle were covered by a security agreement. Ft. Pierre Livestock admitted receiving a letter referring to a financing statement and then placing the letter on its Rolodex for the express purpose of informing employees to be cautious before issuing checks to individuals. This particular letter specifically expressed that Ag Credit checks to individuals. This particular letter specifically expressed that Ag Credit held a first mortgage on certain livestock claimed by certain individuals: "West, Kenneth H., Box 956, Eagle Butte, S.D. 57625, Cattle Branded [BAD TEXT] right rib." This actual notice to Ft. Pierre Livestock, warning them, in effect, of the first mortgage interest was the crucial fact constituting actual notice upon which the trial court relied when rendering its decision. Unlike the situation addressed in Redfield Livestock, however, nothing in this case indicates that the secured party, Ag Credit, waived its security interest by express authorization or prior course of dealing. Hence, there is no parallel in the cases so far as conversion liability is concerned. Unfortunately, a sales barn employee permitted a fast talker to renegotiate a check to him individually which was jointly and properly issued in the first instance. With the proper filing and the actual notice, Ft. Pierre Livestock owed a duty to issue the check jointly as requested by Ag Credit. The trial court properly decided this case under summary judgment.
WUEST, Acting Justice (dissenting).
I dissent. In its answer, Appellant denied the cattle sold were those covered under the security agreement. None of the affidavits, interrogatories, depositions, or pleadings, resolved this fact issue. On appeal, Ft. Pierre Livestock stoutly maintains the cattle sold were not those secured under the security agreement. Its brief states it thus:
It is not disputed that Mr. West owned the cattle sold, however, it is disputed that Ag Credit had a security interest in those `particular' cattle so as to be able to maintain a conversion action.
In my opinion, it is possible, as Appellant claims, that the cattle sold were a different herd than those cattle covered by the security agreement. That is a factual question which should not be ascertained by a motion for summary judgment. Wilson v. Great Northern Railway Company, 83 S.D. 207, 157 N.W.2d 19 (1968).
If, upon trial, it is determined the particular cattle sold were those covered by the security agreement, then in my opinion the Plaintiff/Appellee may recover because Appellant had actual notice.
NOTES
[1] The question of notice is one of fact. Betts v. Letcher, 1 S.D. 182, 46 N.W. 193 (1890). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601151/ | 1 So. 3d 195 (2008)
HI-SHEAR TECHNOLOGY CORPORATION, Appellant/Cross-Appellee,
v.
UNITED SPACE ALLIANCE, LLC, et al., Appellee/Cross-Appellant.
No. 5D06-2242.
District Court of Appeal of Florida, Fifth District.
November 14, 2008.
Rehearing Denied February 3, 2009.
*197 Donald E. Christopher, David G. Lerner of Litchford & Christopher, Orlando, and Michael H. Kahn of Michael H. Kahn, P.A., Melbourne, for Appellant/Cross-Appellee.
Michael R. Levin, Christa C. Werder, Julie E. Singer, Robert W. Thielhelm, Jr., of Baker & Hostetler LLP, Orlando, for Appellee/Cross-Appellant.
COHEN, J.
Appellant, Hi-Shear Technology Corporation (hereinafter "Hi-Shear"), appeals various rulings made during a nine-week trial, primarily the partial denial of its motion for directed verdict on the Hobbs Act affirmative defense asserted by Appellee, United Space Alliance, LLC (hereinafter "United Space"). United Space cross-appeals the trial court's ruling partially directing a verdict on its Hobbs Act defense. We affirm on all issues.
United Space is the general contractor *198 and overall administrator of NASA's[1] space shuttle program. Prior to May 2000, Hi-Shear had a longstanding relationship as a supplier of parts for use on the space shuttle. Over the years, Hi-Shear supplied forward separation bolts, aft separation bolts, and reefing line cutters or delay cutter assemblies. The forward and aft separation bolts serve the dual purpose of connecting and separating the solid rocket boosters from the external fuel tank. After the solid rocket boosters separate, the reefing line cutters regulate the deployment of its parachutes by releasing the bindings holding the parachutes on a timed, staged basis. At the heart of the instant dispute is United Space's termination of two aft separation bolt contracts, a forward separation bolt contract, and a reefing line cutter contract.
In 1999, United Space solicited Hi-Shear to submit a bid on a contract to supply bonnet thrusters. Of the three bidders, Hi-Shear's bid was the lowest. However, due to deficiencies in its quality plan, a quality hold was placed on Hi-Shear that rendered it ineligible to be awarded the contract. United Space subsequently amended the solicitation and Hi-Shear once again submitted a bid. This time it was eligible to be awarded the bonnet thruster contract because it had cleared the issues resulting in the quality hold. Although Hi-Shear was once again the low bidder, United Space did not immediately award it the bonnet thruster contract.
Anxious to receive the bonnet thruster contract and repair deteriorating relations between the companies due to problems incurred in producing the reefing line cutters, Hi-Shear, through its vice president Herb Salit, sent a letter promising an accelerated delivery of reefing line cutters if United Space awarded it the bonnet thruster contract. This request was renewed at a meeting attended by Herb Salit and United Space's deputy director of procurement, James Donald Herring, in January 2000, to discuss the delay in producing the reefing line cutters and their subsequent delivery. At this meeting Herring also informed Salit of United Space's critical need for the reefing line cutters.
United Space rejected Hi-Shear's conditional offer of accelerated performance. Instead, it sent an open work authorization that authorized Hi-Shear to send the reefing line cutters before they were certified for use on the space shuttle. However, Hi-Shear was reticent to send uncertified reefing line cutters because it did not believe that the parties' relationship supported taking such action. Although citing prior problems with sending uncertified product, it appears that Hi-Shear's primary concern was a rumor that United Space was looking at other suppliers for the separation bolts. Before agreeing to send uncertified reefing line cutters, Hi-Shear wanted an assurance that United Space intended to continue their relationship. This assurance came in the form of awarding it the bonnet thruster contract. While seeking the award of the bonnet thruster contract, Hi-Shear put a hold on delivering completed reefing line cutters and aft separation bolts.
Alarmed by what it perceived to be Hi-Shear's attempt to condition its contractual duty to deliver reefing line cutters on the award of the bonnet thruster contract, United Space reported this behavior to NASA's inspector general. As a result, special agent Joseph Schopper was assigned to the case and began a criminal investigation. The parties subsequently met on April 6, 2000, and Hi-Shear indicated that it would deliver the reefing line *199 cutters and aft separation bolts if United Space would award it the bonnet thruster contract and execute a non-disclosure agreement. At the direction of special agent Schopper, United Space executed both of these documents and delivered them to Hi-Shear on the same date.
One day after being formally awarded the bonnet thruster contract; Hi-Shear released the hold and delivered the completed aft separation bolts. A few days later the reefing line cutters were delivered. After Hi-Shear delivered the reefing line cutters, United Space terminated the aft separation bolt contracts, forward separation bolt contract, reefing line cutter contract, and disclaimed the validity of the bonnet thruster contract and non-disclosure agreement. The reason for the terminations was that Hi-Shear violated federal law, thereby breaching the contracts, by "conditioning the delivery of products upon the issuance of a purchase order for unrelated work." United Space disclaimed the bonnet thruster contract and the non-disclosure agreement on the ground of duress.
In response, Hi-Shear filed a nine-count complaint seeking damages for breach of the contracts, fraud in the inducement, theft and misappropriation of trade secrets, and declaratory relief. United Space's principal defense was that Hi-Shear violated the Hobbs Act, 18 U.S.C. § 1951. United Space also filed a counterclaim for breach of contract, conversion, declaratory relief, and an accounting. Over the course of nine weeks the case was presented to a jury. After United Space rested, Hi-Shear moved for a directed verdict on its Hobbs Act defense. The trial court granted the motion for directed verdict as to the forward separation bolt contract, but denied it as to the aft separation bolt contracts and reefing line cutter contract.
The jury awarded Hi-Shear damages in the sum of $57,781 on its claim for breach of the forward separation bolt contract. However, the jury found that Hi-Shear violated the Hobbs Act in connection with the aft separation bolt contracts and reefing line cutter contract. It also found that Hi-Shear procured the bonnet thruster contract by duress. The jury awarded nothing to United Space on its counterclaim. The trial court entered a final judgment on May 19, 2006. Subsequently, Hi-Shear moved to amend the final judgment to include an award of pre-judgment interest and correct the post-judgment interest rate. The trial court denied Hi-Shear's request to award pre-judgment interest, but corrected the post-judgment interest rate and entered a corrected final judgment on March 23, 2007. The parties timely filed their notices of appeal and cross-appeal, which we now address.
I.
The primary issue to be addressed is the trial court's ruling on Hi-Shear's motion for directed verdict on United Space's Hobbs Act affirmative defense. Before reaching this issue, we briefly address United Space's cross-appeal and a number of arguments raised by Hi-Shear.
United Space argues, in its cross-appeal, that the trial court erred in granting the motion for directed verdict as to the forward separation bolt contract. The trial court concluded the Hobbs Act did not apply because there was no nexus between the alleged extortion and the performance of the forward separation bolt contract. After reviewing the record evidence, we do not find the trial court erred and affirm.
Hi-Shear challenges the jury instructions and exclusion of certain evidence it believed was relevant to rebut the Hobbs *200 Act defense. Having failed to show that the trial court abused its discretion, we affirm. The trial court also did not err in directing a verdict against Hi-Shear on its claim that it was fraudulently induced to enter into the bonnet thruster contract because Hi-Shear failed to prove it suffered any damages, separate and apart from the alleged breach of contract, as a result of the alleged fraud. See La Pesca Grande Charters, Inc. v. Moran, 704 So. 2d 710, 713 (Fla. 5th DCA 1998).
Assuming, without conceding, that the jury correctly found that it violated the Hobbs Act, Hi-Shear contends the trial court should have ordered United Space to pay for the goods it undisputedly delivered, but United Space never paid for. Stated differently, Hi-Shear argues that it is owed, at the contracts' order price, for the goods it delivered and United Space accepted, but did not pay for. Although realizing it did not specifically plead for these damages, Hi-Shear asserts they could have been awarded as part of its declaratory judgment action.
The parties' contracts contained two clauses dealing with termination. If a contract was terminated for default due to non-performance, then any goods delivered and accepted were required to be paid at the contract's order price. If a contract was not terminated for default, but rather at United Space's convenience, then the parties could either agree on the amount to be paid or the amount would be calculated as provided in the contract. The contract provided for payment, calculated as follows: 1) completed supplies or services accepted by United Space; plus 2) the cost of the work, including initial costs and preparatory expenses, the cost of settling and paying claims arising out of the termination for convenience to subcontractors, and a sum for profit calculated under the Federal Acquisition Regulations; plus 3) the reasonable costs of settlement. If it was determined that United Space wrongfully terminated for default, then damages would also be calculated under a termination for convenience.
At trial, the issue presented to the jury was whether the Hobbs Act was violated such that it justified United Space's termination for default. If not, then Hi-Shear was entitled to damages based on a termination for convenience. As Hi-Shear conceded at oral argument, its entitlement to termination for convenience damages was the only theory of damages presented to the jury. It did not plead for termination for default damages under its breach of contract counts. Although it could have been awarded these damages as part of its request for declaratory judgment, Hi-Shear neither pled for these damages nor sought supplemental relief pursuant to section 86.061, Florida Statutes (2000). In fact, the first time Hi-Shear raised this issue was in a motion to amend its motion for new trial. Hi-Shear waived its right to seek damages for the goods it delivered, but were not paid for, by failing to raise this issue before the trial court. See Parlier v. Eagle-Picher Indus., Inc., 622 So. 2d 479 (Fla. 5th DCA 1993).
II.
Hi-Shear contends the trial court erred in denying its motion for directed verdict on the Hobbs Act as to the aft separation bolt contracts and reefing line cutter contract. When reviewing a ruling on the motion for directed verdict, this court reviews "the evidence adduced and every conclusion therefrom in the light most favorable to the nonmoving party, resolving every conflict and inference for that party." Reams v. Vaughn, 435 So. 2d 879, 880 (Fla. 5th DCA 1983). If there are conflicts in the evidence or different reasonable inferences could be drawn from *201 the evidence, the issue is a factual one that should be submitted to the jury. Tenny v. Allen, 858 So. 2d 1192, 1196 (Fla. 5th DCA 2003). A directed verdict is properly entered if "no view of the evidence could sustain a verdict" against the nonmoving party. Id. at 1195.
Hobbs Act
The Hobbs Act is codified at 18 U.S.C. § 1951 and, in relevant part, prohibits obstructing, delaying, or affecting interstate commerce by robbery or extortion. Extortion is defined as "obtaining property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. § 1951(b)(2). To prove a Hobbs Act violation the following elements must be proven: 1) the victim was wrongfully induced to part with property; 2) through fear; and 3) an adverse affect on interstate commerce. U.S. v. Addonizio, 451 F.2d 49, 59 (3d Cir.1971). The interstate commerce element will not be addressed because the parties do not argue that this element was not proven.
Wrongful inducement occurs when the extorting party exploits a victim's fear in order to obtain property to which she is not entitled, nor has a lawful claim. Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 523 (3d Cir.1998); Viacom Int'l Inc. v. Icahn, 747 F. Supp. 205, 210 (S.D.N.Y.1990). The means used to accomplish the wrongful inducement need not be unlawful in themselves. Otherwise lawful business activity can become wrongful when it is used to obtain property that the party has no lawful claim to. Viacom Int'l Inc. v. Icahn, 747 F.Supp. at 211-12. Furthermore, exploiting economic fear in arms length business negotiations is not inherently wrongful, and therefore, will not always rise to the level of extortion. Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d at 523. It is only when the extorting party has no lawful claim to the property obtained that a Hobbs Act violation occurs. Id.
The "fear" element encompasses both physical harm and economic loss. U.S. v. Addonizio, 451 F.2d at 72. When extorting through the wrongful use of fear of economic loss, the victim must reasonably fear economic loss. U.S. v. Middlemiss, 217 F.3d 112, 118 (2d Cir.2000); Viacom Int'l Inc. v. Icahn, 747 F.Supp. at 211. The proof must show that the extorting party both had the power to harm the victim and would exploit that power to the victim's detriment. Id. Fear under the Hobbs Act can include non-repayment of a loan, U.S. v. Sturm, 870 F.2d 769, 772 (1st Cir.1989), or harm to business operations based on the public perception of an imminent threat of a corporate takeover, Viacom Int'l Inc. v. Icahn, 747 F.Supp. at 211. The requisite fear is not shown where the only fear is the loss associated with non-compliance or non-payment of a contract. Robert Suris Gen. Contractor Corp. v. New Metro. Fed. Sav. & Loan Ass'n, 873 F.2d 1401, 1405 (11th Cir.1989).
"Property" under the Hobbs Act is not limited only to physical or tangible property. U.S. v. Tropiano, 418 F.2d 1069, 1075 (2d Cir.1969). It includes any valuable right that is considered to be a source or element of wealth. Id. Thus, it encompasses the right to make business decisions free from wrongfully imposed external pressure, U.S. v. Santoni, 585 F.2d 667, 673 (4th Cir.1978), business accounts and unrealized profits, U.S. v. Nadaline, 471 F.2d 340, 344 (5th Cir.1973), and the right to pursue a lawful business, U.S. v. Private Sanitation Indus. Ass'n of Nassau/Suffolk, Inc., 793 F. Supp. 1114, 1134 (E.D.N.Y.1992).
*202 United Space's Hobbs Act defense was predicated on the theory that Hi-Shear exploited its fear that it would not receive the critically needed separation bolts and reefing line cutters unless it awarded Hi-Shear the bonnet thruster contract. Hi-Shear advances a number of arguments for why its actions were not extortionate as a matter of law. The issues dispositive to the instant appeal are whether Hi-Shear had a legal entitlement to the bonnet thruster contract or its actions were merely non-actionable hard-bargaining.
Hi-Shear's Entitlement to the Bonnet Thruster Contract
There are two generally accepted scenarios when a party obtains property to which she is not entitled. The first is when the victim parts with her property and receives nothing of value in return. Viacom Int'l Inc. v. Icahn, 747 F.Supp. at 212. The second is when the victim parts with her property in exchange for something the victim values. Id. at 212-13. In this latter situation, some acts will be extortionate and others non-actionable hard-bargaining. Id. at 213. The distinction between the two rests on whether the victim has a pre-existing right to pursue her business interests free of the fear being suppressed by receiving something of value in exchange for her property. Id. If the victim has a pre-existing right to pursue her business interests free of the fear, then extortion occurs. Id. If the victim does not have a pre-existing right, then it is hard-bargaining. Id.
Hi-Shear contends that it cannot be found to have committed Hobbs Act extortion because it offered valuable consideration for the bonnet thruster contract: promising to expedite the preparation and delivery of the reefing line cutters. However, as Hi-Shear's own president testified, United Space rejected this offer. Subsequently, United Space sent an open work authorization requesting Hi-Shear send reefing line cutters without the required certifications by March 20, 2000. Hi-Shear refused this request because it wanted further assurances that United Space would continue to use it as a supplier. In furtherance of this goal, Hi-Shear continued to seek the award of the bonnet thruster contract. This persistence culminated in the meeting on April 6, 2000, attended by Herring, United Space's deputy director of procurement, and Salit, Hi-Shear's vice-president.
At this meeting, United Space expressed its need for the aft separation bolts and reefing line cutters. Herring asked Salit, "The only way I can get that hardware is to place a purchase order with you for the bonnet thrusters, I'm prepared to do that. Is that still your position?" Salit responded, "Yes, it is." In addition to requiring an award of the bonnet thruster contract before it would ship the reefing line cutters and aft separation bolts, Hi-Shear also demanded that a non-disclosure agreement be signed. United Space subsequently awarded the bonnet thruster contract to Hi-Shear and signed the non-disclosure agreement. Based on United Space's rejection of Hi-Shear's offer of accelerated performance, the jury could have concluded that Hi-Shear did not offer any consideration in exchange for the bonnet thruster contract. Thus, the jury could have determined that Hi-Shear was unlawfully conditioning the delivery of the aft separation bolts and reefing line cutters on being awarded the bonnet thruster contract.
Even if the record evidence only showed that Hi-Shear offered to expedite the delivery of the reefing line cutters as consideration for the bonnet thruster contract, this still does not mandate a finding that United Space received valuable consideration. This is because under the terms *203 and conditions of the reefing line cutter contract, United Space had the unilateral right to change the "method or manner of performance" and the "schedule of performance" of the work. Thus, the jury could have concluded that United Space had a contractual right to demand accelerated performance and properly did so when it sent the open work authorization. Consequently, the jury could have found that the consideration offered by Hi-Shear was nothing more than what United Space was already contractually obligated to demand and receive. In any event, whether Hi-Shear offered valuable consideration required resolving evidentiary conflicts that precluded the entry of a directed verdict in favor of Hi-Shear. See Alpha Elec. Supply, Inc. v. Drake Contracting, Inc., 407 So. 2d 363 (Fla. 5th DCA 1981) (reversing summary judgment where there was a disputed issue of fact as to whether an agreement was supported by consideration).
Assuming arguendo that United Space received valuable consideration in return for the bonnet thruster contract, this still does not mandate a conclusion of hard-bargaining. Hi-Shear contends that its actions were nothing more than hard-bargaining because, as the lowest bidder, it was legally entitled to be awarded the bonnet thruster contract. According to Hi-Shear, United Space's procurement officials duly selected it as the most qualified bidder in the normal course of business without knowledge of the alleged extortionate behavior.
Contrary to Hi-Shear's argument, the fact that it was the lowest bidder did not entitle it to the bonnet thruster contract. The undisputed testimony at trial was that United Space was not obligated to award the bonnet thruster contract based solely on the lowest bid. Rather, it was considered along with other factors, such as past performance. As United Space's representative testified, it would have been "very difficult" to award Hi-Shear the bonnet thruster contract because of its past problems with delivering the separation bolts and reefing line cutters. Rather than entitlement, Hi-Shear had nothing more than an expectation or hope of being awarded the contract.
The fact that United Space's procurement officials did not know of Hi-Shear's extortionate behavior is irrelevant because these officials did not have the authority to award the contract. The person who had authority to award the bonnet thruster contract testified that he did not award it based on the competitive bidding process. Instead, it was awarded based on Hi-Shear's extortionate behavior.
III.
Hi-Shear argues that the damages awarded on its breach of the forward separation bolt contract was not supported by the evidence. Hi-Shear complains that the jury awarded it the amount due under its unpaid invoice and not the amount identified by its expert witness. According to Hi-Shear, United Space did not present any evidence to rebut its expert witness and, thus, it was the only evidence upon which the jury could award damages. The fatal flaw with this argument is that Hi-Shear was asked in an interrogatory to state the amount of damages it sustained as a result of the breach of the forward separation bolt contract. The amount it identified was the exact amount the jury awarded. This interrogatory answer was presented to the jury without objection. Because interrogatory answers are admissible into evidence, Alexander v. Alterman Transport Lines, Inc., 387 So. 2d 422, 424 (Fla. 1st DCA 1980), and the jury was entitled to reject Hi-Shear's expert testimony on damages, Republic Services of *204 Florida, L.P. v. Poucher, 851 So. 2d 866, 871 (Fla. 1st DCA 2003), the jury's damages award is supported by record evidence and therefore, will not be set aside. See Thompson v. Jacobs, 314 So. 2d 797, 798 (Fla. 1st DCA 1975).
Finally, Hi-Shear challenges the trial court's refusal to award it pre-judgment interest. Hi-Shear first raised its entitlement to pre-judgment interest in a motion to correct the final judgment, nunc pro tunc, filed over nine months after the final judgment was entered. By failing to raise this issue in a motion for rehearing within the time set forth in Florida Rule of Civil Procedure 1.530(b), Hi-Shear waived its claim to pre-judgment interest. See Emerald Coast Commc'ns, Inc. v. Carter, 780 So. 2d 968, 970 (Fla. 1st DCA 2001).
AFFIRM.
ORFINGER, J., concurs.
TORPY, J, dissents, with opinion.
TORPY, J., dissenting.
When the smoke cleared here, United got the product it contracted for but avoided payment by its creative assertion of the Hobbs Act as a defense to payment. A federal investigator authorized United's employees to play along with the purported extortionate demand while under audio surveillance. After the threat had been documented in a tape recording, United waited until the cutters were shipped before terminating the contracts and refusing even to pay for delivered and accepted product. Most troublesome to me is United's contention that Hi-Shear placed it in "fear," despite United's superior size and economic strength and despite the fact that it did not succumb to the threat but instead reported it to authorities. United successfully presented testimony that Hi-Shear's threats of non-performance caused it fear of great economic loss because the product was integral to the space shuttle and unavailable from other sources. Because I believe threatened non-performance of a contract is not the type of threat that Congress intended to criminalize under the Hobbs Act, I would reverse.
As defined in the Hobbs Act, "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. Here, there were no threats of force or violence, leaving only the issue of whether Hi-Shear wrongfully put United in fear in an attempt to obtain the bonnet thruster contract.[1] The "obtaining property" element is entirely distinct from the "putting in fear" element. The former focuses on what the violator got or tried to get. The latter focuses on what the victim feared it would lose if it did not succumb to the demand. By awarding a sole-source contract to Hi-Shear for specially fabricated goods, United assumed the contractual risk that Hi-Shear would not perform and its non-performance would delay the project. The threatened breach, even when used as leverage to exact additional consideration, did not exacerbate this contractual risk. Therefore, it was not the type of threat that gives rise to a Hobbs Act violation, as is illustrated by Robert Suris General Contractor Corp. v. New Metropolitan Federal Savings & Loan Ass'n, 873 F.2d 1401, 1405 (11th Cir.1989). There, the plaintiff, a contractor, was induced to accept loans from affiliates of the project's owner based upon fear of non-payment for work done on the project. In affirming the grant of summary judgment for the defendants, the court held that the plaintiff *205 had not established a Hobbs Act claim because: "The only fear of economic loss is that which accompanies any party to a contract when he suspects that compliance and compensation may not be forthcoming." Id.
In my view, this case is analogous to a construction contract scenario wherein a subcontractor threatens non-performance to leverage an additive change order or a contractor threatens non-payment to coerce a subcontractor to perform extra work. To label this type of hardball tactic between businesses criminal extortion stretches the law dangerously beyond what Congress intended. See United States v. Albertson, 971 F. Supp. 837, 841 (D.Del.1997) (principal purpose of Hobbs Act was to outlaw "gangland thuggery and its influence within labor unions").
I would reverse.
NOTES
[1] NASA is also known as the National Aeronautics and Space Administration.
[1] I say "put in fear" because one cannot "use" fear. Fear is a reaction. This is apparently the way the courts have construed this language. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601190/ | 391 So. 2d 276 (1980)
In re ESTATE of George E. BEEMAN, Deceased.
No. 78-834.
District Court of Appeal of Florida, Fourth District.
December 3, 1980.
*278 Glenn R. Mee of Andrews, Voorheis, Lehrer & Baggett, Fort Lauderdale, for appellant.
Robert J. Friedman, Hallandale, for appellee.
HURLEY, Judge.
This appeal presents the question whether the Florida Rules of Probate and Guardianship Procedure, as presently structured, permit the court to retain jurisdiction to cure judicial error by amending, altering or modifying a final order after its rendition. We answer in the negative.
During the administration of the estate of George E. Beeman, a controversy arose over attorneys' fees. Consequently, counsel for the estate filed a petition to enforce payment of attorneys' fees. The court conducted an evidentiary hearing and, on February 16, 1978, entered an order awarding attorneys' fees in the sum of $17,100.00. The amount of the award was based on a fee contract between the original personal representative and the law firm of Andrews, Voorheis, Lehrer and Baggett.
On February 28, 1978, appellee/successor personal representative filed a petition for rehearing. Again, the court conducted an evidentiary hearing and, on March 16, 1978, entered an amended order reducing the amount of attorneys' fees to $12,050.00. The amended order indicated that the February 16th order was vacated and set aside and that the new award was based upon quantum meruit and upon the criteria established by Section 733.617, Florida Statutes (1977). It is the validity of the March 16th order which is at issue on this appeal.
We preface our discussion by noting that the proceeding below was not designated an "adversary proceeding." The authorization for such designation is found in Rule 5.025, Fla.R.P. & G.P., which states:
(a) The following shall be deemed adversary proceedings:
(1) Proceedings to revoke a will, probate a lost or destroyed will, probate a later discovered will, determine beneficiaries, construe a will, cancel a charitable bequest, partition property for the purposes of distribution, determine and award the elective share; and
(2) Any other proceeding which shall be determined by the court to be an adversary proceeding. (Emphasis supplied.)
Since attorneys' fees are not contained in the listing under subsection (a)(1), the proceeding below could have been an "adversary proceeding" only if so classified by the court pursuant to subsection (a)(2).
The characterization of the proceedings is critically important for it determines which rules of court shall govern. Subsection (b)(2) of Rule 5.025 indicates that the rules of civil procedure shall govern adversary proceedings. Included, of course, would be Rule 1.530, Fla.R.Civ.P., which authorizes motions for rehearing and motions to alter or amend a judgment.
Since the trial judge in the case at bar did not determine the proceeding to be an adversary proceeding, the rules of civil procedure are inapplicable; our review is therefore confined to the perspective of the Florida Rules of Probate and Guardianship Procedure. Absent a trial court's determination that a proceeding is an adversary proceeding, and excepting situations of waiver or estoppel, an appellate court will not apply the adversary proceeding label for the first time on appeal. Substantive rights are involved and, therefore, retroactive designation is impermissible.
*279 Applying the definition for finality found in Rule 5.100, Fla.R.P. & G.P., there can be no doubt that the trial court's order of February 16th was a final order subject to appeal. Moreover, because the Florida Rules of Probate and Guardianship Procedure do not presently contain a provision allowing for a motion for rehearing,[1] such a motion is a nullity which, if filed, will not toll the time for filing an appeal. In re Malone, 365 So. 2d 1059 (Fla. 2d DCA 1978); Val Bostwick v. Estate of Cowan, 326 So. 2d 454 (Fla. 1st DCA 1976); In re Estate of Crissey, 286 So. 2d 585 (Fla. 4th DCA 1973).
In the case at bar, appellee filed a petition for rehearing on February 28, 1978, twelve days after the February 16th order. The court entered its amended order on March 16, 1978, twenty-eight days after the original order. The question on appeal then, is whether the trial court, under the rules of probate and guardianship procedure, had jurisdiction to amend its order. To obtain the answer we must ascertain the precise moment at which the trial court lost jurisdiction to alter, modify or amend its order.
At common law a trial court retained jurisdiction to correct or modify a judgment until the time for taking an appeal expired, or until an appeal was in fact taken, whichever occurred first. Shelby Mutual Insurance Co. v. Pearson, 236 So. 2d 1, 5 (Fla. 1970) (Ervin, C.J., dissenting). Florida seemed to adopt the common law rule in Floyd v. State ex rel. LaVigne Electric Co., 139 So. 2d 873 (Fla. 1962), when the court held that a trial judge had the authority to vacate summary judgments previously entered, despite the fact that there was no provision of rule or statute giving the court power to do so. However, Kippy Corp. v. Colburn, 177 So. 2d 193 (Fla. 1965), firmly rejected the common law view by limiting Floyd to its facts and stating the broad proposition that both trial and appellate courts are limited by rule and statute as to the time and manner in which the power to correct errors in final orders may be exercised. The court characterized the function of correcting orders in final judgments as jurisdictional and held:
If the correction of error is not sought within the time and manner provided the court involved has no authority to act and insofar as that court is concerned the matters decided are finally ended.
... Unless a proper motion or petition is filed within the allotted time the order becomes absolute and except as provided by the rules ... the trial court has no authority to alter, modify or vacate the substance of the order. Id. at 196-97.
The Supreme Court reaffirmed Kippy Corp. five years later in Shelby Mutual Insurance Co. v. Pearson, supra, and said:
Except as provided by Rules 1.530 and 1.540, Florida Rules of Civil Procedure, the trial court has no authority to alter, modify or vacate an order or judgment. 236 So.2d at 3.
See also Denny v. Denny, 334 So. 2d 300 (Fla. 1st DCA 1976); Allen v. Allen, 230 So. 2d 29 (Fla. 1st DCA 1969).
Since the Florida Rules of Probate and Guardianship Procedure do not presently provide for motions for rehearing and inasmuch as the proceeding to determine attorneys' fees was not determined to be an adversary proceeding and thus made subject to the Florida Rules of Civil Procedure, particularly Rule 1.530, we hold that the trial court's order of February 16, 1978, became absolute upon its rendition and thereafter the court was without jurisdiction to alter, modify or amend it.
Though the time sequence is different, the court reached the same conclusion in In re Estate of Armistead, 240 So. 2d 830, 831 (Fla. 1st DCA 1970), and held:
In the absence of a rule promulgated by competent authority authorizing a petition for rehearing or motion for new trial subsequent to the entrance of a final order, a probate court loses jurisdiction as *280 to that order save for those matters involving the inherent power and jurisdiction of the probate court as discussed in State ex rel. Booth v. Byington, 168 So. 2d 164 (Fla.App. 1st 1964).
State ex rel. Booth v. Byington, supra, ruled that a probate court has inherent power to revoke probate of a will where a later will or codicil is discovered, where newly discovered evidence shows that the probated will was forged, or that its probate was procured by fraud. Similarly, Val Bostwick v. Estate of Cowan, supra, held that a probate court is not precluded in a proper case from relieving a party from a final judgment or order under Rule 1.540(b), Fla.R.Civ.P., upon the grounds and within the time limit set forth therein.
We are cognizant of the maxim than an order of the probate court comes to this court clothed with a presumption of correctness and will be affirmed if it can be supported on any theory. Beck v. Beck, 383 So. 2d 268 (Fla. 3d DCA 1980). Therefore, despite the fact that appellee's February 28th petition was captioned as a "petition for rehearing," we have reviewed its grounds[2] to determine whether in substance it is a motion for relief from judgment pursuant to Rule 1.540(b), Fla.R.Civ.P. In this respect, it must be remembered that Rule 1.540(b) is not a substitute for appellate review. Only those orders which result from oversight, neglect or accident, as opposed to judicial error, may be remedied under Rule 1.540(b). Fiber Crete Homes, Inc. v. Division of Administration, 315 So. 2d 492 (Fla. 4th DCA 1975); Constant v. Tillitson, 214 So. 2d 91 (Fla. 1st DCA 1963); In re Estate of Weymer, 199 So. 2d 495 (Fla. 4th DCA 1967), cert. discharged sub nom. Scott v. Broward National Bank, 207 So. 2d 673 (Fla. 1968).
*281 Though the grounds set forth in paragraphs 2, 3 and 4 of appellee's petition are clearly allegations of judicial error which fall outside the purview of Rule 1.540(b), paragraph 1 presents a closer question. It alleges:
That the Order entered on said Petition was based upon an alleged contractual obligation between the Petitioners and Catherine T. Beeman, and at the hearing on said Petition, the Petitioner waived his right to proceed on the contract and instead, petitioned for a reasonable fee to be established on a quantum meruit basis. Accordingly, the Court erred in awarding the fee based upon the contract.
Putting the truth of the allegation aside for the moment,[3] it implies a mistake of fact, viz., that the trial court inadvertently failed to recall that the contract count had been waived or withdrawn and, as a consequence, the court's judgment was predicated on a factual error. Nonetheless, we believe the allegation must be classified as a judicial error. We adopt the test formulated by the Wyoming Supreme Court in Spomer v. Spomer, 580 P.2d 1146, 1149 (1978):
The key factor is whether or not the court reached a decision in the intentional or purposeful exercise of its judicial function. If the pronouncement reflects a deliberate choice on the part of the court, the act is judicial; errors of this nature are to be cured by appeal.
We acknowledge that our decision today is in conflict with our earlier holding in In re Estate of Weymer, supra. There, pursuant to the authority of Rule 1.540(b), we upheld an amended order which deleted a requirement that an executor pay a guardian the legal rate of interest in addition to the proceeds of an insurance policy. Upon reconsideration, we believe Judge Walden was correct in his dissent and, therefore, we recede from our holding in In re Estate of Weymer.
Accordingly, the order of March 16, 1978 is quashed and the cause is remanded to the trial court with instructions to reinstate the order of February 16, 1978.
DOWNEY and GLICKSTEIN, JJ., concur.
NOTES
[1] Effective January 1, 1981, Rule 5.020(d), as amended, Fla.R.P. & G.P., provides for motions for rehearing from any order or judgment. In re Florida Rules of Probate and Guardianship Procedure, 387 So. 2d 949 (Fla. 1980).
[2] The text of appellee's petition for rehearing is as follows:
(Caption)
PETITION FOR RE-HEARING
ATLANTIC NATIONAL BANK OF JACKSONVILLE, REGIONAL TRUST SERVICE OFFICE, as Guardian for CATHERINE T. BEEMAN, PHYSICALLY INCAPACITATED, moves this Court for a re-hearing on the Petition to Enforce Payment of Attorneys Fees filed by the law firm of ANDREWS, VOORHEIS, LEHRER & BAGGETT, and as grounds therefore says:
1. That the Order entered on said Petition was based upon an alleged contractual obligation between the Petitioners and Catherine T. Beeman, and at the hearing on said Petition, the Petitioner waived his right to proceed on the contract and instead, petitioned for a reasonable fee to be established on a quantum meruit basis. Accordingly, the Court erred in awarding the fee based upon the contract.
2. Having elected to proceed on a quantum meruit basis, the Court failed to find that the attorneys fee was reasonable. Accordingly, the Court erred in awarding such a fee, without a specific finding of reasonableness.
3. The Petitioner's allegation of a contract for the payment of fees and the refusal of the personal representative to abide by the terms of the contract, requires the Petitioner to proceed in an action at law for breach of contract. The Court erred by enforcing the contract without affording the Personal Representative an opportunity to have a jury determine the propriety of said contract and the scope of the terms, conditions and nature of same. 3 Fla.Jur. 402, Section 68, Attorneys at Law, Questions for Court and Jury.
4. The Petition sought to enforce a contract for fees entered into at a time substantially subsequent to the undertaking of the attorney-client relationship and the Petitioner has the affirmative duty to prove that the agreement is fair, reasonable and freely and voluntarily executed with the full understanding of the client, both parties having equal knowledge as to all of the facts and circumstances of the agreement. The Court, failing to find that the fee was reasonable, erred in enforcing the contract. 3 Fla.Jur. 384, Section 52, Attorneys at Law, Contracts Made During Attorney-Client Relation.
WHEREFORE, ATLANTIC NATIONAL BANK OF JACKSONVILLE, Guardian of the property of CATHERINE T. BEEMAN, PHYSICALLY INCAPACITATED, moves this Court for re-hearing.
I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed to the following on this 27th day of February, 1978: ANDREWS, VOORHEIS, LEHRER & BAGGETT
Attorneys for Estate
19 Southeast Third Avenue
Ft. Lauderdale, FL 33301
s/s Robert J. Friedman
ROBERT J. FRIEDMAN,
Attorney for ATLANTIC NATIONAL
BANK OF JACKSONVILLE, Guardian
of the property of CATHERINE T.
BEEMAN, Physically Incapacitated.
[3] The stipulated statement of facts accompanying the record on appeal unequivocally demonstrates that appellant did not waive or withdraw its count to enforce the fee contract. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601202/ | 445 F. Supp. 946 (1978)
Harry HUGE, C. W. Davis and Paul R. Dean, as Trustees of the United Mine Workers of America Health and Retirement Funds, Plaintiffs,
v.
Lawrence V. OVERLY, Individually, Defendant.
Civ. A. No. 75-869.
United States District Court, W. D. Pennsylvania.
February 16, 1978.
*947 Henry Gusky, Walter P. O'Connell, Plowman & Spiegel, Pittsburgh, Pa., for plaintiffs.
Scales & Shaw, Greensburg, Pa., for defendant.
OPINION
DUMBAULD, District Judge.
Plaintiffs, trustees of the United Mine Workers of America Health and Retirement Funds, hereinafter sometimes referred to as plaintiff or the trust fund, is a pension plan organized pursuant to 29 U.S.C. § 186(c)(5).
It is required by 29 U.S.C. § 186(c)(5) that the trust fund be used "for the sole and exclusive benefit of the employees" and by 29 U.S.C. § 186(c)(5)(B) that "the detailed basis on which such payments are to be made [be] specified in a written agreement with the employer."[1] Any oral modification of such a written agreement would be invalid and contrary to public policy. Lewis v. Seanor Coal Co., 382 F.2d 437, 441-44 (C.A.3, 1967).
The Supreme Court and numerous cases in this Court make clear that plaintiff is a fiduciary for the beneficiaries of the trust fund and constitutes a distinct and independent entity separate from the union. The union participates merely in the collective bargaining agreement with the employer by virtue of which the assets of the fund are generated out of payments which the employer in the contract with the union obligates himself to make.[2]Lewis v. Benedict Coal Co., 361 U.S. 459, 469, 80 S. Ct. 489, 4 L. Ed. 2d 442 (1960); Lewis v. Harcliff Coal Co., 237 F. Supp. 6, 7 (W.D.Pa.1965); Gomez v. Lewis, 292 F. Supp. 560, 561 (W.D.Pa. 1968); Boyle v. North Atlantic Coal Corp., 331 F. Supp. 1107, 1108 (W.D.Pa.1971); Huge v. Old Home Manor, 419 F. Supp. 1019, 1021 (W.D.Pa.1976); Huge v. Kutsenkow, *948 Civ. No. 76-904 [where Judge Knox granted judgment for plaintiffs on the pleadings]. Hence any defenses which may be available against the union are not available against the fund, which is a third-party beneficiary of the contract between employer and union. A similar situation is familiar in commercial law with respect to a bona fide purchaser of a negotiable note in good faith for value, before maturity, and without notice.
The distinction between the union and the trust fund is one which defendant, an intractable individualist, can not or will not recognize. He repeatedly testified that "they are in the same boat." It was his habit to pay no attention to correspondence from the fund, but to throw it in the waste-basket.
The contracts of individual coal producers with the U.M.W.A. are in substance contracts of adhesion. The employer becomes party to a standard printed contract, which embodies the terms negotiated nationally. This agreement is entitled "National Bituminous Coal Wage Agreement of 1971 effective November 12, 1971." Hence it seems unlikely that the union would enter into a contract with a particular employer varying the standard terms; though of course it would be free legally to do so. But the common practice would have bearing upon the antecedent probability of any claim that variance existed in the case of a particular owner's agreement with the union, and the credibility of testimony tending to establish such variance.
Article II, section (d), of the contract signed by defendant provides:
As part of the consideration for this agreement, the Employers agree that this agreement covers the operation of all of the coal lands, coal producing and coal preparation facilities owned or held under lease by them, or any of them, or by any subsidiary or affiliate at the date of this agreement, or acquired during its term which may hereafter (during the term of this agreement) be put into production or use. The Employers agree that they will not lease, license or contract out any coal lands, coal producing or coal preparation facilities for the purpose of avoiding application of this agreement or any section paragraph or clause thereof.[3]
Article XV, section (a), obligates the operator to furnish to the union and to the trust fund "a monthly statement showing the full amount due hereunder for all coal produced . . . from each of the several individual mines owned or operated by the said operators signatory hereto."
Article XV, section (d) provides:
If the Trustees determine that there is reasonable cause to question the accuracy of the sums paid under Section (a) of this Article or of any verification thereof made by an Employer for a given monthly or annual period, the Employer shall, upon written request by the Trustees, make available for inspection and/or copying at reasonable times and places to a representative or representatives of the Fund those records which are necessary to verify the accuracy of sums paid hereunder.
It is admitted by defendant in the pleadings that he executed the contract with the union. His testimony at the trial admits that he signed three copies of the document, and that of such copies those furnished to the union representative contained nothing on the signature page other than his signature, the figure 3 to identify the district, the date, and his name and address in print (not in his handwriting but written by the union representative).
However, on his own copy only, he testifies that he wrote the words "U. S. Steel Coal only" which appear on Defendant's Exhibit 1 above the date; and that he wrote these words before he signed his *949 name to the agreement.[4] Whether or not there was a "meeting of minds" or consensus ad idem in the subjective sense, contract law since the days of Holmes and Williston has accepted the objective standard.[5] Under accepted contract law defendant is bound by the standard printed contract which he signed. It would be a species of fraud were he to be able to shape his obligation to conform to a restriction not communicated to the other contracting party.
Defendant made certain payments to the fund from time to time after signing the agreement. But he submitted no monthly statements as required by Article XV, section (a). The forms for such statements which were sent to him by the fund were among the incoming mail which he threw into the waste basket. He also testified that he paid no attention to oral requests for this information.
Ronald Mastrine testified that he performed an audit, as authorized by Article XV, section (d). He experienced difficulties by reason of the lack of certain necessary records.[6] Where sales invoices were missing, he calculated the tonnage from bank deposits or defendant's tax returns. No evidence was offered by defendant to show that the sales involved were made at a different price from that used in Mastrine's estimate, or that the comparable prices used by Mastrine were not correct. Mastrine's work papers show that he used estimated tonnage on only a small part of the tonnage sold. The Court accepts his audit as substantially adequate and accurate.
It shows royalty due of $25,493.30, with simple interest at 6% of $5626.43, or a total of $31,119.73 [Plaintiffs' Exhibit 2].
In addition plaintiffs are entitled to attorney's fees. The affidavit of Walter P. O'Connell, Esquire, shows travel expenses of $257.65; and that of Henry Gusky claims $3,321, at an hourly rate of $67.50. The Court deems $2500 to be an adequate fee. Accordingly, judgment is entered against defendant Lawrence Overly and in favor of Harry Huge, C. W. Davis and Paul R. Dean, as Trustees of the United Mine Workers of America Health and Retirement Funds in the amount of $33,877.38, together with court costs.
This opinion shall be deemed to constitute the Court's findings of fact and conclusions of law.
NOTES
[1] The Employee Retirement Income Security Act of September 2, 1974 (ERISA), 88 Stat. 825 et seq., contains similar provisions. 29 U.S.C. § 1104(a)(1).
[2] The now continuing coal strike, the longest in history, by preventing payments into the fund by producers on tonnage produced, is causing hardship to many pensioners because of lack of assets in the fund. At the same time, President Jimmy Carter's chief legislative triumph in Congress to date has been the enactment of the largest tax increase in history because of shortage of assets in the Social Security System.
[3] It was doubtless to avoid charges of violation of the second sentence of this section that United States Steel Corporation insisted that defendant sign the agreement in order to strip coal from a tract leased from that corporation. Defendant's operations had theretofore been non-union.
[4] The words "U S Steel Coal only" are in a different colored ink than used for defendant's signature, or for the parts written by the union representative. Defendant's explanation is that he always carries several pens in his pocket. Apart from defendant's own testimony there is no evidence as to when those words were written. Conceivably they could have been added post litem motam.
[5] Samuel Williston, A Treatise on the Law of Contracts (3d ed. Jaeger, 1957) I, § 21, p. 42.
[6] This lack of proper records is itself a violation of the contract. It also prevented defendant's own CPA from giving more than a disclaimer type certificate when he prepared Defendant's Exhibit 4. That exhibit shows only sales to one customer, Duquesne Light. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1551391/ | 142 F.2d 132 (1944)
ZIMBERG et al.
v.
UNITED STATES.
No. 3909.
Circuit Court of Appeals, First Circuit.
April 24, 1944.
*133 John I. Robinson, of Springfield, Mass., and Thomas H. Mahony, of Boston, Mass., for appellants.
Joseph J. Gottlieb, Asst. U. S. Atty., Edmund J. Brandon, U. S. Atty., Robert L. Wright, Sp. Asst. to the Atty. Gen., and F. J. Hansberry, State Enforcement Atty., Office of Price Administration, all of Boston, Mass., for appellee.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
WOODBURY, Circuit Judge.
This is a consolidated appeal from judgments sentencing the defendants to fines and imprisonment after they had been found guilty by a jury of violating § 4(a) of the Emergency Price Control Act of 1942, 56 Stat. 28, 50 U.S.C.A.Appendix, § 904(a), by making sales of beef at prices in excess of those prescribed by Revised Maximum Price Regulation No. 169.
It appears that on the dates of the violations alleged in the indictment the defendants *134 as co-partners were engaged in the wholesale meat business in Springfield, Massachusetts, under the name of Hampden Beef Company, and that they were also officers, directors and holders of a majority of the stock of Big Four, Inc., a corporation which had concessions for the retail sale of meats in two stores, one located in Pittsfield and the other in North Adams, Massachusetts. On March 15, 1943, the grand jury returned an indictment in ten counts against the defendants charging that, as co-partners during January, 1943, they had made ten separate sales of beef at above ceiling prices, four to one Jules Biron, one to a certain Hilaire Roy, one to a certain Richard A. Omar and four to Big Four, Inc. Upon arraignment the defendants pleaded not guilty. During the trial that followed the court directed the jury to return verdicts of not guilty as to the defendant Goldberg on all counts except 2 and 4, and verdicts of not guilty as to the defendant Zimberg on all counts except 2, 4, 5, 8, 9, and 10. The jury found Goldberg guilty as charged in counts 2 and 4, and Zimberg not guilty as charged in those counts but guilty as charged in counts 5, 8, 9, and 10. The defendants thereupon took this appeal to us.
Both defendants here advance the same constitutional arguments advanced by the defendants in Rottenberg v. United States and Yakus v. United States, 1 Cir., 137 F.2d 850, decided by this court on August 23, 1943. Since we considered and rejected these arguments in the above cited cases and our decision therein was affirmed by the Supreme Court on March 27, there is no need for us to consider them again.
Both defendants also contend that there are variances between the allegations made in the counts before us and the proofs offered in support thereof. The variances pointed out, however, are minor. They are not of a character which could have operated either to mislead the defendants to their prejudice at the trial or to deprive them of their respective rights to be protected against subsequent prosecutions for the same offenses. Since we cannot see that the variances pointed out could in any way have affected substantial rights of the defendants, it follows from § 269 of the Judicial Code[1], 28 U.S.C.A. § 391, that these contentions are without merit. Berger v. United States, 295 U.S. 78, 81-84, 55 S. Ct. 629, 79 L. Ed. 1314.
We turn now to the counts upon which the defendant Goldberg was found guilty, but the defendant Zimberg was not, numbers two and four.
In count two the defendants are charged with having made a sale on or about January 5, 1943, at Springfield, to Jules Biron of one hindquarter of beef of good grade, weighing 156 pounds for $46.46, and in count 4 with having made a sale on or about January 13, 1943, at the same place and to the same purchaser of hindquarters of beef of the same grade weighing 637 pounds for $191. That is to say, by computation the counts allege sales at approximately 30 cents a pound.
The defendant Goldberg admits that the ceiling price fixed for beef of the above description during January, 1943, by Revised Maximum Price Reg. No. 169 was 25¼ cents per pound, and he also admits that sales of beef of good grade were made by the Hampden Beef Company to Biron on the dates and for the total prices alleged. But he contends that the evidence is not sufficient to warrant the conclusion that the sales were made at above ceiling prices. He says that the only competent evidence is that the beef sold to Biron on the dates in question weighed 184 pounds and 764 pounds respectively, weights which if divided into the alleged and admitted total price paid would make the price per pound within the established ceiling.
Biron was the only witness offered by the government to prove the allegations made in these counts. Through him customers' copies of invoices were put in evidence showing two sales by the Hampden Beef Company to him; one on January 5, 1943, of "Hind" weighing 184 pounds at 25¼ cents per pound, total $46.46, and another on January 13, 1943, of "Hind" weighing 764 pounds at 25 cents per pound, total $191. These invoices on their faces support the defendants' contention as to weights and in consequence shows sales at or just below the ceiling price, but the government contends that in each invoice *135 the weight was overstated so that, the total price paid in each instance being admitted, there were in fact overpayments of price per pound. In support of its contention it relies upon the testimony of Biron who said that between Christmas 1942, and New Year's Day following, he was told by the defendants that thereafter he would be charged 30 cents per pound for hinds of the quality described in the invoices and that, regardless of what the invoices showed, that was in fact the price which he had paid for the hinds sold to him on January 5 and 13. The defendant Goldberg contends that since Biron admitted that he had not himself weighed the beef purchased on the above dates, or seen it weighed, his testimony as to price per pound, which was objected to, should have been excluded on the ground that it was merely the statement of a conclusion drawn by the witness, not the statement of a fact. We do not agree.
Ordinarily in the interest of accuracy a lay witness' testimony should be confined to statements of concrete facts within his own observation, knowledge and recollection, that is, to facts perceived by the use of his own senses as distinguished from his opinions, inferences, impressions or conclusions drawn from such facts. However, as Judge Learned Hand pointed out in Central R. Co. of New Jersey v. Monahan, 2 Cir., 11 F.2d 212, 214, "The line between opinion [in the sense of an inference or conclusion from basic data] and fact is at best only one of degree, and ought to depend solely upon practical considerations, as, for example, the saving of time and the mentality of the witness. It is hardly ever reversible error to admit such evidence; its foundation may generally be as conveniently left to cross-examination. Every judge of experience in the trial of causes has again and again seen the whole story garbled, because of insistence upon a form with which the witness cannot comply, since, like most men, he is unaware of the extent to which inference enters into his perceptions. He is telling the `facts' in the only way that he knows how, and the result of nagging and checking him is often to choke him altogether, which is, indeed, usually its purpose." The best solution suggested seems to be that the question of how far, short of guess or surmise, a witness may go in stating his conclusions is for the practical discretion of the trial court. See United States v. Cotter, 2 Cir., 60 F.2d 689, 693, 694; 20 Am. Jur., Evidence §§ 763-774, Am.Law Inst., Model Code of Evidence, § 401. Often the best solution is to do what the court below did here, that is, permit the witness to state the fact as he believes it to be, leaving the validity of the grounds upon which he rests his belief to the test of cross-examination. Here it appears that the witness had never weighed the beef which he had bought or seen it weighed. This weakens his conclusion as to the price per pound that he paid for it, but it does not destroy his conclusion altogether because it appeared that he was a market man of seventeen years' experience who, presumably, would be able to tell within a very few pounds how much the beef weighed without actually putting it on the scales. We are of the opinion that the court below acted within the bounds of discretion in admitting Biron's testimony and that it is sufficient to support the verdict of guilty returned by the jury against Goldberg on the counts under consideration.
The defendant Goldberg next contends that he should have a new trial on these counts for the reason that the jury by finding him guilty as charged therein, but his partner Zimberg not, returned inconsistent verdicts. The answer to this contention is that the evidence with respect to the participation of the partners in the transactions with Biron on January 5 and 13 is not the same. Biron, as already appears, testified that he talked with both partners between Christmas 1942, and the new year concerning the price which would be charged him thereafter for beef and that both told him that the price would be 30 cents a pound. The partners, however, when they took the stand in their own defense, did not tell the same story. Zimberg denied having talked with Biron at all, while Goldberg admitted having talked with Biron but said that he had told him that they could not remain in business unless they could charge 30 cents a pound for beef, and, since they could not legally do that, they were going out of business for the duration of the war. Obviously the jury could have believed Zimberg in toto, but believed Goldberg only to the extent that he said he had talked with Biron, believing Biron as to what that conversation was. Thus there is a logical explanation of the verdicts on these counts and it follows that they are not inconsistent as a matter of law.
*136 Goldberg next asserts that the court below committed reversible error when it neglected to instruct the jury to disregard certain testimony of Biron which in the jury's absence from the court room had been ordered stricken from the record. This is what occurred at the trial. The Assistant United States Attorney in his opening statement to the jury said that he would offer evidence that the defendants had violated the price regulation "by the scheme, method and practice of selling wholesale cuts of meat and placing a price on an invoice which appeared to be a price within the ceiling, and then change the weight so that a higher weight would be placed on the invoice, which in effect would mean that the purchaser was paying approximately 30 cents a pound for cuts of meat." He then put Biron on the stand as his first witness and after eliciting, as appears above, that Biron had actually paid 30 cents per pound for the beef, regardless of what the invoice showed, he asked: "During the conversations that you had with Zimberg and Goldberg, sometime between Christmas and New Year's of last year, did Zimberg and Goldberg, or either of them, talk to you about the manner in which they would make up the invoices for you?" Biron answered this question in the negative, and then he was asked, "Did Zimberg and Goldberg discuss the weight of the merchandise that you bought or would buy, with you?" and he answered "No." Next Biron was asked if he had ever weighed the beef or seen it weighed, and he said that he had not. The court then took a hand in the examination of the witness, pressing him on the latter point, but the witness doggedly maintained that he had purchased the beef in ignorance of its weight. The court then, addressing the Assistant United States Attorney, said: "I am sufficiently persuaded of the matter we discussed at the bench to allow you to go ahead along the lines you suggested." Thereupon counsel for the government, over the defendants' objection, confronted Biron with a statement which he had given to two investigators from the Office of Price Administration. As a result of cross examination based on this statement Biron reluctantly admitted that he had told the investigators that he had made an arrangement with the defendants whereby the weights would be overstated so that the price per pound would actually be about 30 cents but the invoices would show sales at or below the ceiling price.
It is evident from the foregoing, and even more evident from reading the typewritten transcript of the testimony, that the court below in its discretion permitted the Assistant United States Attorney to cross examine his own witness on the ground of the witness' hostility. This is a matter within the discretion of the court below and there being no evidence of any abuse of discretion, its ruling is not reviewable here. So far, however, the witness' statement to the investigators being unsworn and not given in court, only affects his credibility. But Biron went further, and on the stand in court and under oath twice said that what he had told the investigators was true. As a result the jury had before it two conflicting statements by Biron of equal force as evidence; one made on direct examination to the effect that there had been no arrangement whereby the weights of his purchases were to be overstated and another on cross examination that such an arrangement had been made. Under these circumstances the jury were at liberty to take either version as correct. That is to say, they could believe either that there had or had not been an agreement between Biron and the defendants to exaggerate weights. So far no error appears in the rulings of the court below.
In the absence of the jury, however, at the close of all the evidence, counsel for the defendants moved to strike the evidence of Biron's statement to the investigators on the ground that it had not been made in the defendants' presence. The court below granted the motion, but in charging the jury neglected to state that this evidence had been stricken.
The evidence stricken but not withdrawn from the consideration of the jury was of a prior contradictory statement. It was properly admitted to impeach Biron's credibility, and that the contradictory statement was not made in the defendants' presence is of no consequence. There is no rule requiring that such a statement be made in the presence of any particular person. It is equally effective to impeach no matter to whom it was made and the situation is not altered by Biron's admission that what he had told the investigators was true. This affirmation of the truth of what he had told the investigators *137 was made in open court. It is direct evidence in the case of equal force with any other properly admitted evidence. As the record stands it is as though Biron had testified to the scheme for evading prices by raising weights in the first place instead of reluctantly on cross examination. The error then was in granting the defendants' motion to strike, not in leaving the evidence erroneously stricken in the case for the jury to consider. The jury therefore had no improper evidence before it and from this it follows that the defendant was not legally prejudiced by the failure of the court to inform the jury that the evidence had been stricken. That failure on the part of the court below only cancelled out a ruling to which the defendant was not entitled.
We turn now to the counts upon which the defendant Zimberg was found guilty, but Goldberg by direction of the court was not, counts 5, 8, 9, and 10.
The defendant's allegations of error with respect to count 5 are so wholly lacking in merit that we need not discuss them at all. It suffices to say that they have been considered and rejected.
Counts 8, 9, and 10 allege transactions on January 16, 21, and 26, 1943, with Big Four, Inc. To prove the illegality of the transactions alleged in counts 8 and 9, the government put the managers of Big Four's concessions on the stand and through them, over the defendant's objection, introduced into evidence pages from certain ledgers which the managers had kept. It appears that these ledgers were purchased by the managers with Big Four funds; that they were regularly kept over a period of years; that they showed the transactions alleged to be illegal and the illegality of those transactions; and that all transactions, including those here in issue, were entered therein promptly. The defendant Zimberg contends that they should not have been allowed to go into evidence because it does not appear that these managers' ledgers were part of Big Four's bookkeeping system but were only kept by the managers for their own convenience. This contention must be rejected. There is no basis in the evidence for the conclusion that the records were only private memoranda. It clearly appears that they were a part, although probably only a minor part, of a regular system of keeping records and that they were regularly kept for the business, not for the idle amusement or private information of the managers. They were clearly admissible under 28 U.S.C.A. § 695 which provides:
"In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of said act, transaction, occurrence, or event, if it shall appear that it was made in the regular course of any business, and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. The term `business' shall include business, profession, occupation, and calling of every kind."
The evidence with respect to Zimberg's guilt as charged in counts 8, 9 and 10 is conflicting. To recite it all is not warranted. It suffices to say that the ledger sheets mentioned above, invoices showing erasures and insertions in pencil, and oral testimony which need not be detailed, point to Zimberg's guilt as charged in these counts. There is conflicting evidence, to be sure, but in spite of it a study of the record convinces us that the verdict of the jury on these counts is supported by substantial evidence.
But one more point requires discussion.
Both defendants contend that the court below in its charge erred in defining the word "wilfully" as used in the section of the statute under which they were convicted. They say that the word means "malevolently," not merely "knowingly" and "deliberately" as the court below charged the jury.
In some statutes the word "wilfully" may have the meaning contended for by counsel for the defendants, but it does not have that meaning in all statutes. It "is a word of many meanings" depending upon the context in which it is used. Spies v. United States, 317 U.S. 492, 497, 63 S. Ct. 364, 367, 87 L. Ed. 418. "In statutes denouncing offenses involving turpitude, *138 `willfully' is generally used to mean with evil purpose, criminal intent or the like. But in those denouncing acts not in themselves wrong, the word is often used without any such implication. Our opinion in United States v. Murdock, 290 U.S. 389, 394, 54 S. Ct. 223, 225, 78 L. Ed. 381, shows that it often denotes that which is `intentional, or knowing, or voluntary, as distinguished from accidental,' and that it is employed to characterize `conduct marked by careless disregard whether or not one has the right so to act.'" United States v. Illinois Cent. R. Co., 303 U.S. 239, 242, 58 S. Ct. 533, 535, 82 L. Ed. 773. In view of this statement there can be no doubt that the court below gave the jury a correct definition of the word "wilfully" as used in the statute under consideration.
The defendants advance many other reasons why their convictions should not be sustained. We have considered them all but find those which we have not mentioned too lacking in merit to warrant discussion.
The judgments of the District Court are affirmed.
NOTES
[1] "On the hearing of any appeal, certiorari, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1551403/ | 6 F.2d 444 (1925)
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 134, et al.
v.
WESTERN UNION TELEGRAPH CO.
No. 3483.
Circuit Court of Appeals, Seventh Circuit.
June 1, 1925.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
Hope Thompson, of Chicago, Ill., for appellants.
Francis R. Stark, of New York City, and West & Eckhart, of Chicago, Ill. (Wm. L. Bourland and William Rothmann, both of Chicago, Ill., of counsel), for appellee.
PAGE, Circuit Judge.
This appeal is from an order granting a preliminary injunction at the suit of the Western Union Telegraph Company, a New York corporation, appellee, against appellants, labor unions, their officers, agents, and members, in Chicago.
*445 Appellee is a public utility, doing a general telegraph business throughout the country, and operates an "open shop." As a part of its service equipment, it places its cables, wires, and other appliances upon and in many properties and buildings in the city of Chicago, Ill., and elsewhere in many states. Appliances, named "call boxes," are installed for customers in many buildings, and by their use the customers may signal appellee's offices and call to their aid a boy to carry telegraph messages to, and to be transmitted by, appellee. It being more economical to make installations while buildings are in course of construction, appellee's workmen and the workmen of one or more of the defendant organizations were often upon the same premises at the same time, but frequently not in contact at all, and sometimes far removed from each other.
The charges in the bill are that, within the year prior to the filing of the bill, upon some 25 or 30 premises named, there were many activities on behalf of appellants, or some of them, against appellee, that took the form of injuries to cables and other property, strikes or threats to strike, and other acts that induced the owners of the premises, where appellee was doing its work or desired to do it, to prevent appellee from proceeding with its work. The District Court found that the allegations of the bill were sustained, and that appellee had a right to equitable relief, not only because there was shown an intent to restrain interstate commerce, but also because there was shown diverse citizenship and an unlawful boycott.
There is not much controversy about the facts. The contention on behalf of appellants is that the injunction imposes upon appellants "involuntary servitude," in violation of the Thirteenth Amendment to the Constitution of the United States, by compelling them, as union men, against their wishes and interests, to work with nonunion men in the same trade. No appellant was, had been, or prospectively was to be, an employee of appellee. The things that were done were not done because of any violation by the employer of any term of the contract of employment. They were not done to induce the payment of higher wages, better working conditions, or for any other lawful purpose. But they were done to compel their own perfectly satisfactory employers, or the owners of the premises where appellee was doing or desired to do its installation work, to injure and annoy appellee, and to cause such employers to violate contracts with appellee, for the sole reason that appellee employed nonunion men. What the Supreme Court said in American Foundries v. Tri-City Council, 257 U.S. 184, 212, 42 S. Ct. 72, 79 (66 L. Ed. 189, 27 A. L. R. 360), concerning the Duplex Case, 254 U.S. 443, 41 S. Ct. 172, 65 L. Ed. 349, 16 A. L. R. 196, is applicable and controlling here:
"Duplex Printing Press Co. v. Deering, 254 U.S. 443 [41 S. Ct. 172, 65 L. Ed. 349, 16 A. L. R. 196], also cited, can have no bearing here. In that case the International Association of Machinists, an unincorporated association, having a membership of more than 60,000, united in a combination to compel the complainant to unionize its factory, enforce the closed shop, the eight-hour day, and the union scale of wages by boycotting the interstate trade of that company. They conducted in the city of New York a campaign of threatening the customers of the printing press company, the trucking companies that carried its presses, and those who were engaged in the work of setting up such presses, with injury to them in their business, if they continued to deal with the Duplex Company or its presses. It was a palpable effort on the part of the International Association of Machinists to institute a secondary boycott; that is, by coercion, to use the right of trade of persons having nothing to do with the controversy between the Duplex Company and the Machinist's Union, and having no interest in it, to injure the Duplex Company in its interstate trade."
Speaking of the wrongful exercise of a right, the Supreme Court said in Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439, 31 S. Ct. 492, 497 (55 L. Ed. 797, 34 L. R. A. [N. S.] 874):
"Society itself is an organization, and does not object to organizations for social, religious, business, and all legal purposes. The law, therefore, recognizes the right of workingmen to unite and to invite others to join their ranks, thereby making available the strength, influence, and power that come from such association. By virtue of this right, powerful labor unions have been organized. But the very fact that it is lawful to form these bodies, with multitudes of members, means that they have thereby acquired a vast power, in the presence of which the individual may be helpless. This power when unlawfully used against one, cannot be met, except by his purchasing peace at the cost of submitting to terms which involve the sacrifice of rights protected by the Constitution, or by standing on such rights and *446 appealing to the preventive powers of a court of equity. When such appeal is made, it is the duty of government to protect the one against the many as well as the many against the one."
The decree is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2809354/ | June 17 2015
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: AF 09-0688
AF 09-0688
"FILED
IN RE PETITION FOR ADOPTION OF RULE
5.5(d)(1) OF THE MODEL RULES OF ORDER JUN 16 2015
PROFESSIONAL CONDUCT Ed Smith
-.LERK OF THE SUPREME COURT
STATE OF MONTANA
The Montana Petroleum Association asked the Court to revise the Montana Rules
of Professional Conduct by adding a provision to address multijurisdictional practice by
attorneys who provide legal services exclusively to one client as an employer. The Court
accepted public comments on the proposal. At a public meeting on June 9, 2015, the
Court voted to modify Rule 5.5 to accomplish the proposed revision as to lawyers
licensed in another United States jurisdiction, and to further revise the rule to address
lawyers licensed in foreign jurisdictions, to reflect portions of Rule 5.5 of the American
Bar Association's 2013 Model Rules of Professional Conduct.
IT IS ORDERED that Rule 5.5 of the Montana Rules of Professional Conduct is
modified to read as follows:
RULE 5.5: UNAUTHORIZED PRACTICE OF LAW
(a) A lawyer shall not:
(1) practice law in a jurisdiction where doing so violates the regulation of
the legal profession in that jurisdiction; or
(2) assist a person who is not a member of the bar in the performance of
activity that constitutes the unauthorized practice of law.
(b) A lawyer admitted in another jurisdiction, and not disbarred or
suspended from practice in any jurisdiction, may provide legal services in
this state to the lawyer's employer or its organizational affiliates provided
that those legal services are not services for which Montana requires pro
hac vice admission and, when provided by a foreign lawyer and requiring
advice on the law of this or another jurisdiction of the United States, such
advice shall be based upon the advice of a lawyer who is duly licensed and
authorized by the jurisdiction to provide such advice.
For purposes of this subsection, the foreign lawyer must be a member in
good standing of a recognized legal profession in a foreign jurisdiction, the
members of which are admitted to practice as lawyers or counselors at law
or the equivalent, and are subject to effective regulation and discipline by a
duly constituted professional body or a public authority.
This Order will be published on the Montana Supreme Court website, and the
State Bar of Montana is asked to post notice of this Order on its website and in the next
available issue of the Montana Lawyer.
The Clerk is directed to provide copies of this order to counsel for the Montana
Petroleum Association, NorthWestern Corporation, the Office of Disciplinary Counsel,
and to the State Bar of Montana.
DATED this I 13 1-.%day of June, 2015.
Chief Justice
2
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Justices
2 | 01-03-2023 | 06-17-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1601225/ | 1 So.3d 307 (2009)
Wally D. SPANGLER, Appellant,
v.
STATE of Florida, Appellee.
No. 5D08-893.
District Court of Appeal of Florida, Fifth District.
January 16, 2009.
James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
GRIFFIN, J.
Wally D. Spangler ["Spangler"] appeals his judgment of conviction and sentence for possession of cocaine. We reverse.
According to the evidence at trial, on September 11, 2007, law enforcement officers Jason Shor ["Shor"] and Sean Coyle ["Coyle"] were in the area of Sanford's Redding Gardens community after having conducted surveillance for drug complaints. Shor and Coyle observed a vehicle pull behind apartments in Redding Gardens and park in an area inaccessible to the public. Shor and Coyle approached the observed vehicle, accompanied by a drug detection K-9.
Shor saw two occupants in the vehicle, who were later identified to be Spangler, on the driver's side, and Shannon Graham ["Graham"], on the passenger's side. Shor observed Spangler concealing something and approached the driver's side window to ask if there were any drugs or contraband in the vehicle. Meanwhile, Coyle ran the K-9 around the vehicle, and the dog alerted to the odor of drugs near the open window on the passenger's side of the vehicle.
*308 After the K-9's alert, Shor asked Spangler and Graham to exit the vehicle. As Spangler exited the vehicle, Shor spotted what appeared to be a piece of crack cocaine on the seat underneath Spangler's leg. Coyle then spotted and retrieved what appeared to be another piece of crack cocaine on the floorboard. A field test conducted by Coyle confirmed that the substances were crack cocaine. Shor retrieved a crack pipe underneath the seat on the passenger's side of the vehicle, after which he spoke with Graham. Shor testified that he arrested Spangler, but chose to release Graham "due to her honesty."
The State charged Spangler by information with one count of possession of cocaine. At trial, during the direct examination of Shor, the State undertook a line of questioning to bolster the credibility of the testifying officers:
Q. And do you have any interest in this case?
A. No.
Q. Do you get any kind of bonuses, incentives if you make a certain
. . . .
Q. If you make a number of arrests?
A. No, I don't.
Q. And do you get any bonuses, incentives if the defendant is found guilty today?
A. No.
Q. Do you get disciplined of any negative action whatsoever if he's found not guilty?
A. No.
Q. And after you make are you familiar with the channels your cases go through after you make an arrest?
A. Yes.
Q. And do you have any say in whether or not the State charges your cases?
A. No.
Q. Do you get have you ever had the State not charge any of your cases?
A. Yes.
Q. And do you get penalized in any way, shape, or form
. . . .
Q. So you don't get penalized in any way, shape, or form if the State chooses not to go forward on any of your cases?
A. No.
Defense counsel objected repeatedly to such questions, but the objections were overruled.
The admissibility of evidence is within the discretion of the trial court; however, "[t]he trial court's discretion is limited by the rules of evidence." Johnston v. State, 863 So.2d 271, 278 (Fla.2003). Spangler urges on appeal that the trial court erred by overruling his objections to the State's questioning of Shor and Coyle on their interest, bonuses, discipline, and incentives in relation to the outcome of the case because these questions were relevant only to bolster the credibility of Shor's and Coyle's testimony. The State says that its line of questioning did not constitute bolstering, but rather "established the evidence for the jury to consider in regards to weighing the evidence."
In Whitted v. State, 362 So.2d 668, 673 (Fla.1978), the Florida Supreme Court said that "the good character of a witness may not be supported unless it has been impeached by [e]vidence." Here, the objectionable line of questioning occurred during the direct examinations of Shor and Coyle, before Spangler had the opportunity for impeachment.
In Simpson v. State, 824 So.2d 280, 282 (Fla. 4th DCA 2002), the Fourth District Court of Appeal found that the trial court erred by permitting the State to bolster *309 the testimony of two law enforcement officers by asking them "whether they received bonuses or salary incentives for arrests or the number of guns they seized" when the officers' testimony had not yet been impeached. The line of questioning at issue here is similar. It was error to allow it to proceed over objection.
We agree with Spangler that the error was not harmless because the State's case was constructed entirely on the testimony of the two officers and because the State reinforced the impermissible bolstering by focusing on it during its closing argument. See Livingston v. State, 682 So.2d 591, 592 (Fla. 2d DCA 1996). This error requires a reversal for a new trial.[1]
REVERSED and REMANDED.
TORPY, J., and PLEUS, R., Senior Judge, concur.
NOTES
[1] Graham did not testify during trial, but Shor testified, during both direct and cross-examination, that he had released Graham due to her "honesty." Based on that testimony, defense counsel attempted to introduce certified copies of Graham's criminal conviction history, but the trial court would not allow it. Given our disposition on the main issue, we do not need to decide whether this was an abuse of discretion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601232/ | 391 So.2d 133 (1980)
Ex parte State of Alabama ex rel. Attorney General.
(In re Glenn DOLVIN
v.
STATE of Alabama).
79-49.
Supreme Court of Alabama.
September 12, 1980.
Rehearing Denied October 3, 1980.
*134 Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for petitioners.
William L. Chenault, III, and Travis W. Hardwick, Decatur, for respondents.
MADDOX, Justice.
On August 16, 1970, Charles Ray Lovett disappeared from his home in Decatur. Skeletonized remains were unearthed in Sanford, Florida on December 6, 1977. These remains were subsequently determined to be consistent with Lovett by comparisons made by a forensic odontologist, Dr. Richard Souviron. The defendant, Glenn Dolvin, was indicted and convicted for the first degree murder of Lovett. The Court of Criminal Appeals reversed that conviction, finding that the evidence was insufficient "to connect the defendant with the killing of Lovett...." Dolvin v. State, ___ So.2d ____ (Ala.Cr.App.1979). The Court of Criminal Appeals, in its opinion, set out the evidence presented by the State to connect the defendant with the crime, as follows:
The prosecution began its case by proving a motive for the murder. Morgan County Circuit Clerk Cleo Teague took the stand and testified that in March, 1970 Appellant was indicted for grand larceny of Charles Ray Lovett's automobile; Lovett was listed on the back of the indictment as a witness for the State and Lovett's address was also shown on the indictment. Moreover, at the time of Lovett's disappearance the grand larceny charge against Appellant was still pending.
The testimony of J. R. Garrett showed that Appellant was in the State of Alabama during the months of July-August, 1970. In early August Garrett observed Appellant proceeding with a piece of paper in his hand to Freemont Street where Lovett resided; Appellant glanced up and down the street as if trying to ascertain precisely where Lovett lived, then turned and left.
Rickey Hames stated that on August 16, 1970, the day of Lovett's disappearance, Appellant came to a service station and asked for directions to Freemont Street. Hames showed Appellant a city map. Hames further stated that Freemont Street and the service station were in the same neighborhood.
Prior testimony of James Howell Legg, who was deceased at the time of the murder trial, was also introduced. Legg stated that he was at his service station on August 16, 1970, and that he saw the Appellant there between 4-6 p. m. Legg never wavered in his certainty that it was Appellant he had seen that day. *135 Several of the victim's neighbors were called to the witness stand. Mr. Sherlon Nagy was the next-door neighbor of the Lovetts and last saw him on August 16, 1970, at 8:30 p. m.
Mrs. Betty Third stated that after she had gone to bed around 10:30 p. m. on August 16, 1970, she heard someone shout, "help, help, let me go" and there was a loud noise.
Mrs. Third looked out the window and saw a Volkswagen moving slowly past the Lovett residence and a man walking around her house. On cross-examination Mrs. Third testified that she heard a loud noise which could have been a car backfiring. Mrs. Third was unfamiliar with guns.
Mr. Henry David Hardiman heard a loud noise on August 16, 1970, sometime after 9:30 p. m. He woke up and looked out the window. Although he did not see anyone, he noticed that his barbecue grill had been knocked over. Mr. Hardiman did not know whether or not the loud noise he heard was a shotgun blast.
Miss Debbie Garrett testified that on August 16, 1970, she lived on Freemont Street and her mother worked at a nearby convenience store. On the night in question Miss Garrett was with her mother at the store and at around 10:30 p. m. she went outside the store to lock up the ice machine. At this time Miss Garrett saw a woman driving a dark green Volkswagen with its headlights off. Miss Garrett got a magazine from the store and sat in her mother's car. During this time she watched the woman and saw her make two trips to Freemont Street. The second time the woman sat there a minute, then Miss Garrett heard a shout. The woman then drove down the back alley at a fast speed. The automobile was out of Miss Garrett's sight for around ten seconds, then she saw it again. This time the headlights were on and Miss Garrett saw two additional men in the car with the woman. One man was slumped down in the seat and the other had his back to Miss Garrett. Miss Garrett identified the driver of the automobile as Sue Dolvin, wife of the Appellant.
The victim's wife then took the stand. She talked to her husband by telephone around 10:00 p. m. on August 16, 1970. That was the last she ever heard from the victim.
After talking to her husband Mrs. Graves (sic) went outside the Dairy Queen to take out some trash. When she opened the door she saw a green Volkswagen parked almost directly in front of the door. A man was in the driver's seat and a woman was on the passenger side. The woman stared at her and was identified as Mrs. Sue Dolvin.
Mrs. Graves (sic) further testified that the victim had never had any dental work but that he had a dark stain on his bottom teeth. To her knowledge he had a perfect set of teeth and had had no fillings or tooth extractions.
Mr. Robert E. Hancock of the Alabama Department of Public Safety testified that in his investigation of the victim's disappearance he went to the Dolvins' residence in Key West, Florida. Outside he observed an old green Volkswagen with an application for replacement tag stuck to the rear window. A Florida search warrant was obtained and a brown paper bag and map were taken from the luggage compartment of Mrs. Dolvin's car. The items were sent off to the FBI laboratory in Washington, D. C.
Mr. Alison Sims of the FBI stated that he tested the bag and map for blood stains. Although he was able to detect human blood stains on both items, the particular blood type could not be determined.
Mr. Robert Quackenbos stated that he managed the trailer park where the Dolvins lived. In August, 1970, Quackenbos lived next door to the Dolvins. Although his bedroom was located next to the road and he was being very watchful because of vandalism problems, at no time did he hear the Dolvins go in their trailer during the weekend of August 16, 1970. Moreover, the Volkswagen was gone the entire weekend. The Dolvins' daughter stayed at the Quackenbos' trailer during part of that weekend.
Florida State Trooper Clarence Lee Simpson was on duty in Ocala, Florida, in the *136 early morning hours of August 18, 1970. Around 1:00 a. m. Sue Dolvin came in the Highway Patrol Station and signed a lost tag form. Mrs. Dolvin had smudges on her and her fingernails and clothes were dirty. She appeared as if she had been camping in the woods.
David Sandlin was the Sheriff of Morgan County in August, 1970. He drove to Key West, Florida, after Appellant waived extradition in order to return Appellant to Morgan County, Alabama. Sandlin noticed that Appellant had a black eye.
John Cardi, a construction worker in Sanford, Florida, discovered some bones at a construction site in December, 1977. Police investigators were called to the scene.
Chad Barton, an investigator with the Sanford, Florida, Sheriff's Department investigated the skeletal remains discovered by Cardi. A shotgun pellet and wadding were found in the remains; sixteen pellets believed to be lead in content were also removed from the chest cavity.
Barton personally flew the skeletal remains to Dr. Joseph H. Davis, the Chief Medical Examiner in Miami, Florida.
Dr. Davis examined the remains and determined them to be those of a caucasian male in his mid-twenties at the time of death. It was Davis' opinion that the victim had not died of suicide or natural or accidental causes. Davis stated that he would classify the victim as a probable homicide as a result of a gunshot wound.
The bones had been buried from 1-10 years.
Dr. Richard Souviron, a forensic odontologist, assisted Dr. Davis in examining the teeth found along with the skeleton. Dr. Souviron determined that the teeth were those of a caucasian male between the ages of twenty-five and thirty-five. The teeth appeared to be perfect, with no cavities, fillings or apparent orthodontal work. Also noted was a dark stain along the gum line. Souviron stated that a set of perfect teeth was very rare.
Souviron was given photographs of the victim and enlargements were made. Comparing the remains with the photograph Souviron found the formation and angle of the lower jaw to be consistent with the victim's. Souviron further found the upper jaw to be consistent with the victim's.
In sum, based on fourteen points of comparison, Souviron found nothing inconsistent between the photographs and the remains of the victim and it was his opinion that the skeletal remains were indeed those of Charles Ray Lovett.
From the foregoing summary of evidence put on by the State there can be no question but that sufficient evidence was produced to send the case to the jury. First, Appellant clearly had a motive for killing Lovett in order to prevent him from testifying against him on a criminal charge.
Furthermore, before Lovett disappeared Appellant was seen glancing around Freemont Street with a piece of paper in his hand.
More importantly, on the afternoon of Lovett's disappearance two eye witnesses placed Appellant at a service station a mile from Lovett's home and Appellant specifically asked one of the attendants for directions to Freemont Street.
Moreover, the victim's wife pinned down Lovett's disappearance to between 10:00-11:00 p. m. on August 16, 1970. At around 10:30 p. m. Mrs. Betty Third, a neighbor, heard a voice crying, "Help, help, let me go," then heard a loud noise. When she looked out the window she saw an automobile of the same make as Appellant's wife's car moving slowly past the Lovett residence.
Another neighbor, Henry David Hardiman, also heard a loud noise on the night in question around 10:30 p. m. Neither Mrs. Third nor Hardiman knew if the loud noise was a gunshot.
Further evidence against Appellant was provided by Miss Debbie Garrett, who on the night of the disappearance observed Appellant's wife driving around Freemont Street with no headlights on and then speeding back down there where a cry for help was heard. At this point Mrs. Dolvin took off in a hurry and when she passed by Miss Garrett, there were two other men in the car, one of whom was slumped over. *137 Further evidence of the joint participation of the Dolvins was provided by the victim's wife, who observed Sue Dolvin and a man parked in front of the Dairy Queen where Mrs. Graves (sic) worked. Although Mrs. Dolvin stared at her, Mrs. Graves (sic) was unable to see the man's face clearly.
Later items stained with human blood were found in the automobile owned by Mrs. Dolvin.
When Appellant and his wife were later seen by law enforcement officials, Appellant had a black eye and Mrs. Dolvin looked as though she had gotten dirty in the woods.
The Court of Criminal Appeals correctly held that circumstantial evidence alone may be sufficient to prove the accused's commission of or participation in the killing, but concluded that the evidence presented by the State was insufficient.
The Court of Criminal Appeals correctly cited Kimmons v. State, 343 So.2d 542 (Ala.Cr.App.1977), as standing for the proposition that "the mere presence of a person at the time and place of a crime is not sufficient to justify his conviction for the commission of the crime." That court omitted, however, to state that if presence at the time and place a crime is committed, in conjunction with other facts and circumstances, tend to connect the accused with the commission of the crime, then the jury may find the accused guilty. In Kimmons, the court said:
A more proper and correct statement of the rule is that the fact that at or about the time of the commission of the offense with which the accused is charged, he and the accomplice were together, in or near the place where the crime was committed, may, in conjunction with other facts and circumstances, sufficiently tend to connect the accused with the commission of the crime to furnish the necessary corroboration of the accomplice.
This Court has stated the rule as follows:
Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty. Lowe v. State, 90 Fla. 255, 105 So. 829 (1925). Circumstantial evidence is said to be the inference of a fact in issue which follows as a natural consequence according to reason and common experience from known collateral facts. Lowe, supra.
White v. State, 294 Ala. 265, 272, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975).
In reviewing the sufficiency of the evidence, we think the Court of Criminal Appeals did not correctly apply the test set out in Cumbo v. State, 368 So.2d 871, 874 (Ala. Cr.App.1978), although we note that the court cited that case. In Cumbo, the court said:
In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir. 1974); United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971); Clark v. United States, 293 F.2d 445 (5th Cir. 1961).
(W)e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir. 1969); Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir. 1967):
Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded *138 every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir., 1963, 321 F.2d 140; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. In Judge Thornberry's words, * * * the standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the jury might reasonably so conclude. Williamson v. United States, 5th Cir., 1966, 365 F.2d 12, 14. (Emphasis supplied).
The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is to examine the welter of evidence to determine if there exists any reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged. McGlamory, 441 F.2d at 135 and 136.
See also Blair v. State, 18 Ala.App. 615, 93 So. 45 (1922). Whether circumstantial evidence tending to connect the defendant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of the defendant's guilt is a question for the jury and not the court. Cannon v. State, 17 Ala.App. 82, 81 So. 860 (1919); see also Evans v. State, 39 Ala.App. 404, 408, 103 So.2d 40, cert. denied, 267 Ala. 695, 103 So.2d 44 (1958).
Circumstantial evidence may afford satisfactory proof of the corpus delicti in a murder prosecution, and, if facts are presented from which the jury may reasonably infer that the crime has been committed, the question must be submitted to the jury. Hopson v. State, 352 So.2d 500, 502 (Ala.Cr.App.), affirmed, 352 So.2d 506 (Ala.1976). However, circumstantial evidence justifies a conviction only when it is inconsistent with any reasonable theory of innocence.
The humane provisions of the law are, that a prisoner, charged with a felony, should not be convicted on circumstantial evidence, unless it shows by a full measure of proof that the defendant is guilty. Such proof is always insufficient, unless it excludes, to a moral certainty, every other reasonable hypothesis, but that of the guilt of the accused. No matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown to be guilty, by that full measure of proof which the law requires. Ex parte Acree, 63 Ala. 234 (1879).
Guilt is not established by circumstantial evidence unless the facts relied on are such that it is the only conclusion fairly to be drawn from them. Fuquay v. State, 22 Ala.App. 243, 114 So. 892 (1927). If all the material circumstances in evidence point to guilt and exclude any reasonable hypothesis except that of guilt a conviction is warranted. Pruett v. State, 33 Ala.App. 491, 495, 35 So.2d 115 (1948).
We have examined the facts presented by the State, as outlined in the opinion of the Court of Criminal Appeals, and we have compared those facts with the wife's case. Sue Dolvin v. State, 391 So.2d 666 (Ala. Cr.App.1979) aff'd 391 So.2d 677 (Ala. 1980).
The Court of Criminal Appeals justifies its holding that the evidence was insufficient by stating:
Here the State only proved that the defendant was in the victim's general neighborhood, that he defendant sought directions to the street on which the victim resided, and that the defendant had a possible motive for wanting to kill the victim. The defendant was never connected in any way with his wife and there was absolutely no evidence of any conspiracy between the defendant and his wife to kill the victim. The record discloses the clear and obvious absence of any circumstances from which the criminal agency of the defendant could be reasonably inferred and which would exclude any reasonable inference consistent with his innocence.
*139 With the exception of the fact that the wife was placed in the vicinity of the crime at a point in time which more closely approximated the time of the commission of the crime than was her husband, and the fact that she was seen in the trooper station in Florida and her husband was not seen there, the inferences which could be drawn from the evidence by the jury in the two cases are the same. Yet, the Court of Criminal Appeals found that the evidence was sufficient in the Sue Dolvin case, but insufficient in this case.
We need not list again all the evidence produced by the State to connect the accused with the crime, but we are convinced that the evidence, viewed "in a light most favorable to the prosecution," was sufficient to allow the jury to reasonably conclude that the evidence excluded every reasonable hypothesis except that of guilt, the standard stated in Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.1978).
No person should be convicted, whether on circumstantial evidence or direct evidence, unless it is shown beyond a reasonable doubt that he is guilty; on the other hand, if the State meets its burden of proof, then a jury may find the defendant guilty.
The Court has said that the determination of whether the evidence is sufficient to justify the conviction is within the province of the jury as the finder of fact. In McDowell v. State, 238 Ala. 101, 189 So. 183 (1939), the Court opined:
The corpus delicti is a fact, proof of which may be made by circumstantial evidence. If there is a reasonable inference deducible from the evidence of its existence, the court must submit the question of the sufficiency and weight of the evidence tending to support that inference to the jury. Martin v. State, [125 Ala. 64, 28 So. 92] supra; Lewis v. State, 220 Ala. 461, 125 So. 802; Wilson v. State, 191 Ala. 7, 67 So. 1010; Newell v. State, 115 Ala. 54, 22 So. 572.
Upon consideration of the facts set out in the opinion of the Court of Criminal Appeals, and applying the correct legal principles to that evidence, we conclude that the decision of the jury that the circumstantial evidence was sufficient to justify a conviction should not have been overturned by the Court of Criminal Appeals in this case. The decision of the Court of Criminal Appeals is, therefore, due to be reversed and the cause remanded to that court.
REVERSED AND REMANDED.
TORBERT, C. J., and FAULKNER, JONES, SHORES, EMBRY and BEATTY, JJ., concur.
BLOODWORTH and ALMON, JJ., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601233/ | 1 So.3d 1025 (2007)
Kristi S. Dyess CHEEK
v.
David W. DYESS.
2060124.
Court of Civil Appeals of Alabama.
September 7, 2007.
Rehearing Denied November 2, 2007.
*1026 James D. Hamlett, Montgomery, for appellant.
Melvin Hasting, Cullman, for appellee.
THOMAS, Judge.
Kristi S. Dyess Cheek ("the mother") and David W. Dyess ("the father") were divorced by the Montgomery Circuit Court on May 7, 2002. In the divorce judgment, the trial court, among other things, divided the parties' marital property and awarded the mother rehabilitative periodic alimony in the amount of $750 per month for six months and, thereafter, in the amount of $500 per month for a period of five years. The trial court reserved ruling on whether to award the mother permanent periodic alimony.
The trial court also awarded the mother legal and physical custody of the parties' three minor childrenThomas, born June 13, 1989, Cameron, born August 10, 1991, and Evan, born October 2, 1997subject to the father's right to visitation. The judgment required both parties to keep the other informed as to the children's location and where they could be reached.
Additionally, the trial court included the following provision in the divorce judgment:
"5. That neither party shall allow a member of the opposite sex, to which he or she is not related by blood or marriage, to remain past 10:00 P.M. or overnight in any place where the parent and children are residing or staying, and neither parent shall take the children to spend nights in the primary residence of any other such person, even if such person is not present."
On November 6, 2002, the mother filed a petition for a rule nisi, asserting, among other things, that the father had not complied with the portions of the divorce judgment pertaining to the payment of alimony *1027 and disallowing a member of the opposite sex to stay overnight where the children are staying. Pursuant to the mother's petition, and after a hearing on the petition, the trial court found the father in contempt for violating paragraph 5 of the divorce judgment, which orders both parties to refrain from allowing members of the opposite sex who are not related to the parties by blood or marriage to remain overnight in the place where the children are staying. The trial court also found that the father was in arrears with regard to alimony payments, and the court ordered the father incarcerated until $4,500 of overdue alimony payments was paid in full. Two days later, upon payment of the arrearage, the father was released from jail.
In a subsequent proceeding on March 24, 2004, the trial court again found the father in arrears with respect to his alimony obligation, and it entered a judgment for the mother in the amount of $5,000. The trial court also found that the father had again violated the provisions of the divorce judgment disallowing unrelated members of the opposite sex from staying overnight in the same place as the children; the court issued an injunction against the father, prohibiting him from visiting with the children in the home of his girlfriend or any other person of the opposite sex and from having any other such person present during his visitation with the children, regardless of where the visitation occurred.
On March 8, 2005, the father filed the complaint that is the subject of this appeal, in which he requested a modification of the divorce judgment. The complaint, among other things, requested that the father's alimony obligation be terminated because the mother had remarried and sought custody of the parties' children because, the father asserted, there had been "a material change of circumstances" and it was no longer in the best interests of the children to remain in the custody of the mother. The father cited as an example of the "material changes" that had allegedly occurred that the oldest child, Thomas, had been allowed to "drink, smoke, have numerous unexcused absences from school, and had been receiving failing grades in school." Additionally, the father alleged that the mother had refused to enforce the scheduled visitation between the father and the children as outlined in the divorce judgment and that the mother had allowed members of the opposite sex to stay overnight in the place where she and the children were staying.
The mother answered the father's complaint, admitting that she had remarried but denying that alimony should be discontinued or that custody should be modified. She also filed a counterclaim, alleging, among other things, that the father was again in arrears in his alimony payments.
After an ore tenus hearing held on November 2, 2005, the trial court entered a judgment on January 6, 2006, finding, among other things, that the mother had remarried in November 2004 and determining that the father had paid all of his required alimony payments from March 2004 through November 2004. The court further determined that a custody modification was warranted, and it changed custody of the parties' two younger children from the mother to the father. The court also found the mother in contempt for "her willful failure or refusal to insure meaningful visitation between and among the children" and the father.
Discussion
The mother first argues that the trial court erred in finding that the father had paid the alimony due to the mother from March 25, 2004, until November 22, *1028 2004. With regard to that issue, the court stated in its January 6, 2006, judgment:
"Although testimony from the [mother] indicated that the [father] had continued to fail to pay said $500 per month, [the father's] Exhibit # 2 confirmed that, in fact, rehabilitative alimony had been paid each month to the [mother] by the [father's] mother, Mrs. E.G. Dyess, on behalf of the [father]."
At the hearing, the father submitted an exhibit consisting of copies of four checks, which were dated May 31, 2004, July 12, 2004, August 1, 2004, and September 1, 2004. The names on the account from which the checks were drawn were "Mr. or Mrs. E.G. Dyess." The mother was listed as the payee, and the checks were in the amounts of $300, $600, $500, and $500, respectively. However, two of the checks were unsigned.
The father testified that he had given money to his mother to pay the mother, that his mother then wrote the checks, and that he and the mother agreed that the mother would pick up the checks from his mother and provide him a written receipt for the checks. The father testified that, to his knowledge, the mother had received two of the checks and that, as to the remaining checks, the father's mother had notified the mother to pick up the checks but the mother had never retrieved them. The father then testified that the checks presented in his exhibit had never been cashed.
This court outlined the applicable standard of review as to this issue in Farmers Insurance Co. v. Price-Williams Associates, Inc., 873 So.2d 252 (Ala.Civ. App.2003):
"`When ore tenus evidence is presented, a presumption of correctness exists as to the trial court's findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987)."'
873 So.2d at 254 (quoting City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ. App.2002)). The mother argues that the court's finding that the father had paid rehabilitative alimony to the mother between the months of March 2004 and November 2004 is unsupported by the record. We agree. The testimony of both the father and the mother, as well as the father's exhibit, all indicate that the father did not pay to the mother, and the mother did not receive, the alimony payments due her from the father. Because we conclude that the trial court's finding that the father had paid the ordered alimony to the mother is clearly erroneous and without supporting evidence, we reverse that portion of the court's judgment.
The mother next argues that there was insufficient evidence before the trial court to support a finding that there was a material change in circumstances such that custody of Cameron, now 16 years old, and Evan, now 9 years old, should be transferred from the mother to the father. In reviewing a trial court's modification of custody after the custody has previously been awarded in a divorce judgment, this court is governed by the standard outlined in Ex parte McLendon, 455 So.2d 863 (Ala.1984). See Smith v. Smith, 865 So.2d 1207, 1210 (Ala.Civ.App. 2003).
"Pursuant to Ex parte McLendon, a parent seeking to modify custody must demonstrate that the change in custody would materially promote the child's welfare and that the disruption caused by the change in custody would be offset *1029 by the advantages of that custody change."
Smith, 865 So.2d at 1210.
This court recently noted in Bledsoe v. Cleghorn, 993 So.2d 456, 461 (Ala.Civ.App. 2007), that "our supreme court has reiterated that the Ex parte McLendon burden is a heavy burden on the parent seeking a change in custody." See also Benton v. Benton, 520 So.2d 534 (Ala.Civ.App.1988)(holding that a stringent standard must be met in order to modify a prior custody determination). In Bledsoe, this court, citing our supreme court's recent decision in Ex parte Martin, 961 So.2d 83 (Ala.2006), further stated that "a noncustodial parent [seeking to modify custody] must prove an obvious and overwhelming necessity for the change of custody." 993 So.2d at 462. In Ex parte Martin, the supreme court summarized the McLendon standard as follows:
"[T]he McLendon test for a change of custody after custody is awarded in a divorce judgment is that the noncustodial parent seeking a change in custody must demonstrate (1) that he is fit to be the custodial parent; (2) that material changes that affect the child's welfare have occurred since the original award of custody; and (3) that the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child."
961 So.2d at 87.
This "heavy" burden is applied to parties seeking custody modifications at trial. See Ex parte Patronas, 693 So.2d 473 (Ala.1997). On appellate review of custody matters, this court is limited when the evidence was presented ore tenus, and, in such circumstances, a trial court's determination will not be disturbed "absent an abuse of discretion or where it is shown to be plainly and palpably wrong." Alexander v. Alexander, 625 So.2d 433, 434 (Ala.Civ.App.1993)(citing Benton v. Benton, supra). As the Alabama Supreme Court highlighted in Patronas, "`[T]he trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody.'" Patronas, 693 So.2d at 474 (quoting Ex parte Bryowsky, 676 So.2d 1322, 1326 (Ala.1996)). Thus, appellate review of a judgment modifying custody when the evidence was presented ore tenus is limited to determining whether there was sufficient evidence to support the trial court's judgment. See Patronas, 693 So.2d at 475.
"However, even under the ore tenus rule, `[w]here the conclusion of the trial court is so opposed to the weight of the evidence that the variable factor of witness demeanor could not reasonably substantiate it, then the conclusion is clearly erroneous and must be reversed.'" B.J.N. v. P.D., 742 So.2d 1270, 1274 (Ala.Civ.App. 1999) (quoting Jacoby v. Bell, 370 So.2d 278, 280 (Ala.1979)).
Notwithstanding the deference due to the trial court's decision under the ore tenus rule, we agree with the mother that the father failed to meet the heavy burden imposed by McLendon. The evidence in the record simply does not support the conclusion that a change of custody would materially promote the children's best interests and welfare.
The trial court based its determination to modify custody of the two younger children on its findings that, under the mother's custody and care, the children lacked overall structure and discipline, lacked a respect for authority, maintained poor educational performance at school, and were subject to the mother's unstable relationships with men. The court also found that the mother did not help to foster a healthy parent-child relationship between the children *1030 and the father. The trial court's judgment stated the following:
"The three children ... are not encouraged by the [mother] to respect their father and other adults, nor are they apparently being supervised or taught a work ethic which could be applied to schoolwork. Based on continued failing grades and general out-of-control behavior it appears that the children are allowed to do whatever they wish whenever they wish by the [mother]."
There was little, if any, evidence to support those conclusions, much less that a change in custody would materially promote the children's best interests and that the positive good brought about by a change in custody would more than offset the disruptive effects of a custody change.
The trial court's finding with respect to the children's grades is simply not supported by the record. The uncontradicted evidence at trial was that, even though the children's grades had declined after the parties' divorce when the children transferred from a private school to a public school, their grades had improved while in the mother's custody and before the trial court entered its judgment modifying custody.
The trial court's finding with respect to the children's "out-of-control behavior" and the mother's exercising little or no supervision over them is also not supported by the record. The record reveals that the mother had disciplined the oldest son by restricting him from social interaction and entertainment when his school performance declined or when she caught him drinking or smoking. The oldest son testified that it was the father who had purchased alcohol for him at a restaurant and who had failed to discipline him when he smoked in front of the father. This court fails to see how the father could claim, as one of his bases upon which to modify custody, that the mother does not discipline the children, including allegedly failing to discipline the oldest son for drinking and smoking on occasion, when the record reveals that the father does not discipline the son for those very same offenses.[1]
As previously stated, the trial court agreed with the father's claims that the mother was not encouraging the children to visit their father and that she was not helping to foster a healthy relationship between the father and the children. "[V]isitation disputes, alone, are not a sufficient basis upon which to modify an existing custody judgment. However, ... when visitation problems are coupled with one parent's attempts to damage or destroy the other parent's relationship with the child, a change of custody may be warranted." Bledsoe, 993 So.2d at 461 (citations omitted). In the present case, however, the father produced no evidence indicating that the mother was preventing or hindering the children from visiting with the father. Additionally, although there was evidence indicating that the mother did little to encourage the children to attend visitation with the fathersuch as by allowing the parties' daughter, Cameron, to make babysitting plans or social plans, rather than visiting with her fatherthere was no evidence indicating that the mother attempted or intended to damage or hinder the children's relationship with the father. Rather, the two older children testified that they were either *1031 working during the father's visitation periods or that they did not want to visit with him because they did not wish to leave their jobs and friends in Montgomery to go to the father's residence because, they thought, it was "boring." Furthermore, the father admitted that most of the time he accepted the two older children's answers that they were working or busy and that he did not apply any additional pressure on them to go with him for the visitation periods.
The final basis upon which the trial court determined that custody of the two younger children should be modified was that the court found that the children had been exposed to the mother's "revolving door" of boyfriends and to her estrangement from her current father, from whom she was, at the time of trial, separated. The mother remarried in November 2004, but she subsequently separated from that husband in June 2005. The father testified that the mother had dated two or three men since the parties' divorce, including a man whom, the father alleged, she was currently dating although she was not yet divorced from her husband. The father testified that he was not "saying anything" about whether or not the mother's current boyfriend was a bad or negative influence on the children; however, he noted that the court-ordered parenting class the parties had attended counseled against exposing the children to a parent's numerous romantic relationships.[2]
In Bratton v. Romine, 819 So.2d 58, 61 (Ala.Civ.App.2001), this court reiterated that "[u]nder the McLendon standard, indiscreet behavior alone is not sufficient to justify a change in custody." Rather, the party seeking to modify custody must establish a substantial detrimental effect on the welfare of the children as a result of the "indiscreet" conduct. See Benton v. Benton, supra; and Smith v. Smith, 464 So.2d 97 (Ala.Civ.App.1984). Despite the father's contention that several factors, including the mother's alleged unstable romantic relationships, warranted a change in custody of the children, we conclude that there is insufficient evidence to support a change in custody based on this factor alone or in combination with all the father's other allegations. Because there is insufficient evidence to support the trial court's determination that the father had met the stringent standards required under McLendon for a custody modification, we hold that the trial court erred in changing custody of the parties' two younger children to the father. See Ex parte Martin, supra; and B.J.N., supra.
Finally, the mother contends that there was insufficient evidence to support a finding that she was in contempt for willfully failing or refusing to ensure meaningful visitation between the children and the father. The trial court's contempt judgment, however, imposed no sanction upon the mother, nor were the mother's person, property, or rights adversely affected by the judgment. Therefore, the trial court's finding of contempt, even if erroneous, was harmless, and we pretermit any further discussion of the issue. Rule 45, Ala. R.App. P.
In the summary-of-the-argument section of the mother's appellate brief, the mother contends that the trial court erred by awarding the father an attorney fee. However, that contention is never repeated *1032 anywhere else in the mother's brief or developed by argument or citation to authority. Accordingly, we have not considered or addressed the issue. See McAliley v. McAliley, 638 So.2d 10 (Ala.Civ.App.1994)(holding that an appellate court will not consider issues that are not properly delineated).
For the foregoing reasons, we reverse the trial court's judgment insofar as it found that the father had paid the mother all the court-ordered alimony due from March 2004 through November 2004. We also reverse the court's judgment insofar as it modifies custody of the parties' two younger children. We affirm the judgment in all other respects, and we remand the cause for proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.
MOORE, J., recuses himself.
NOTES
[1] Although the trial court made several findings regarding discipline problems with the oldest child, custody was not modified as to that child. Therefore, the trial court's findings regarding the parenting problems with the oldest child are only relevant as they relate to any potential problems that would affect the other two children in the mother's primary care.
[2] The father also testified that, before the mother and her current husband, were married in November 2004, the mother's current husband had stayed overnight with the mother, in violation of the court's orders in the judgment of divorce. However, the father has been found in contempt for violating the same provision in the divorce judgment twice since the divorce judgment was entered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601241/ | 379 N.W.2d 295 (1985)
STATE of South Dakota,
v.
Harold THOMPSON, Sr.,
No. 14747.
Supreme Court of South Dakota.
Argued September 10, 1985.
Decided December 11, 1985.
Robert Mayer, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
Patrick M. Schroeder, Minnehaha County Public Defender, Sioux Falls, for defendant and appellant.
MORGAN, Justice.
Harold Thompson, Sr. (Thompson) was convicted of rape in the first degree, SDCL 22-22-1, and sexual contact with a child under fifteen, SDCL 22-22-7. Thompson appeals on two issues: (1) impermissible hearsay testimony was admitted at trial, and (2) there was insufficient evidence as a matter of law to support the verdict on the sexual contact charge. We reverse and remand.
Testimony in the record presented by State alleges that on February 10, 1984, Thompson decided to visit his children, who lived with his ex-wife. During this visit, Thompson's ex-wife, Karen Thompson (Karen), left the home for approximately twenty minutes. Upon her return, the alleged victim (H.T.) had tears in his eyes. Karen asked H.T. if Thompson had hit him, but H.T. would not respond. Later that night, H.T. awoke screaming, but upon questioning from his mother, stated he could not tell what happened or "Dad would kill them." After repeated probing and questioning by Karen over a five-day period, H.T. finally said that Dad put "his thing" (Thompson's penis) into his mouth.
Detective Conrad Smith of the Sioux Falls Police Department was called to interview H.T. on March 19, 1984. Prior to the interview, Karen informed Smith of what H.T. had told her. At this interview, H.T. repeated essentially the same story that he had told his mother. H.T. also related that his father had on several occasions touched his penis.
Thompson was subsequently arraigned and indicted upon the two charges. In August, 1984, a jury trial was held before Judge William Heuermann. Prior to trial, *296 Thompson filed a motion to exclude hearsay statements from H.T. to any witness. This motion was filed on the morning of trial. Judge Heuermann held a hearing on the motion that same morning. The State noted it intended to offer the statements under SDCL 19-16-38,[1] the tender years exception. At this hearing, Thompson asked the court to find the necessary "indicia of reliability" to allow the statements into evidence. The State made an offer of proof based upon what Karen and Smith were going to testify to; the statements that H.T. allegedly made to them. Thompson's attorney indicated that "we haven't heard anything about the circumstances of the statement and how they were given and who was present and the demeanor of the person giving the statement, and I guess I would like a chance to cross-examine the people that took the statements and find out exactly what circumstances were involved when this little boy allegedly made these statements." Cross-examination of Officer Smith was granted. On cross-examination, Thompson elicited the time span between when the alleged incident occurred and Smith's interview with H.T. and the fact that Smith already had an idea of what H.T. was going to say, as he had previously contacted Karen. Cross-examination of Karen was not allowed. Judge Heuermann then denied Thompson's motion. The trial proceeded, and Thompson was convicted on both counts and sentenced to twenty years in the state penitentiary.
Initially, State claims that no error was committed, since the statements made to Smith and Karen were not hearsay. State claims that since H.T. was a witness at trial his statements to Karen and Smith were not hearsay under SDCL 19-16-2(2).[2] This statute allows the admission of out-of-court statements as nonhearsay, if the statements are consistent with the declarant's in-court statements and are offered to rebut an express or implied charge of recent fabrication or improper motive.
Traditionally, the use of prior consistent statements has been barred by the rule against hearsay. See United States v. Quinto, 582 F.2d 224 (2nd Cir.1978); Advisory Committee notes to Fed.R.Evid. 801. However, Fed.R.Evid. 801(d)(1)(B) (SDCL 19-16-2(2)) allows the admission of prior consistent statements as nonhearsay as long as its requirements are met.
Before a prior consistent statement will qualify as nonhearsay under the rule, the proponent must demonstrate three things. First, he must show the prior consistent statement is consistent with the witness' in-court testimony. Second, he must establish that the statement is being used to rebut an express or implied charge against the witness of recent fabrication or improper motive or influence. Finally, the proponent must demonstrate that the prior consistent statement was made prior to the time the supposed motive to falsify arose. Quinto, supra.
State has not met the requirements of the Quinto standard. The testimony of Smith and Karen was not used to rebut charges of fabrication or improper influence, rather it was introduced as substantive *297 evidence in State's case-in-chief. Both Karen and Smith testified before H.T. took the stand. When a witness has not yet testified, statements are not admissible as prior consistent statements under the rule. United States v. Strand, 574 F.2d 993 (9th Cir.1978); 4 Weinstein's Evidence ¶ 801(d)(1)(B)[01] at 801-100 (1975). "The witness is not helped by [the prior consistent statement] even if it is an improbable or untrustworthy story, it is not made more probable or more trustworthy by any number of repetitions of it." Quinto, 582 F.2d at 232 (citations omitted). The rationale behind excluding prior consistent statements is that such statements are irrelevant, unless the witness' credibility is brought into issue. Quinto, supra. When credibility is attacked, the rebuttal provisions of SDCL 19-16-2(2) come into play. The alleged victim's credibility was not in question prior to his testimony; therefore, the statements of Karen and Smith could not have been nonhearsay under SDCL 19-16-2(2).
Since the statements were hearsay, we next examine Thompson's contention that the trial court erred in not determining the sufficiency of the indicia of reliability of the statements. SDCL 19-16-38 provides for admission of hearsay statements of a youth victim of a sex crime only in the event the trial court finds that the time, content, and circumstances of the statement provide sufficient indicia of reliability. In this regard, he also claims error in not being allowed to examine Karen concerning the statements prior to trial.
The term "indicia of reliability" arose out of cases concerning the Sixth Amendment's guarantee of confrontation. See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); see also State v. McCafferty, 356 N.W.2d 159 (S.D.1984). The Roberts Court stated:
Reflecting [the Confrontation Clause's] underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that "there is no material departure from the reason of the general rule."
448 U.S. at 65, 100 S.Ct. at 2539, 65 L.Ed.2d at 607. It should be noted that when the declarant of the out-of-court statement is available for cross-examination, the strictures of the confrontation clause are met superficially. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); see also McCafferty, supra. However, even if the declarant is available, the confrontation clause does require adequate assurances of the reliability of the statement. Roberts, supra; State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984). In fact, "a higher level of reliability [must] be established where a declarant is available than were he unavailable." State v. O'Brien, 318 N.W.2d 108, 112 (S.D.1982).
In McCafferty, supra, we noted that the indicia of reliability referred to by the Roberts Court and the circumstantial guarantees of trustworthiness language in the hearsay exceptions are synonymous. In Roberts, supra, the Court held that "[r]eliability can be inferred without more in a case where evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." 448 U.S. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608 (emphasis added).
In McCafferty, supra, we delineated certain criteria a trial court should consider in determining the sufficiency of the indicia of reliability. These included the age and maturity of the child, the nature and duration of abuse, the relationship of the child to the offender, the reliability of the assertions, and the reliability of the child witness. In addition, in O'Brien, supra, we stated:
`[A] trier must be able to determine the credibility of the extra-judicial declarant when he made the statement attributed to him, and to do this the statement must be viewed as part of the other evidence in the case.' Such factors as the naturewritten or oraland character of the statement, the relationship of the *298 parties, the probable motivation of the declarant in making the statement, and the circumstances under which it was made must be assessed. Also significant are the knowledge and qualifications of the declarant.
318 N.W.2d at 112 (footnotes omitted).
"The circumstantial guarantees of trustworthiness on which the various specific exceptions to the hearsay rule are based are those that existed at the time the statement was made, and do not include those that may be added by using hindsight." Ryan, supra (quoting Huff v. White Motor Corp., 609 F.2d 286, 299 (7th Cir.1979)) (emphasis added).
Here, the trial court never made a determination on the record concerning the trustworthiness of H.T.'s statements. Prior to trial, Thompson moved to exclude the hearsay statements. At a hearing on this motion, State, by offer of proof, alleged only the content of the offered hearsay testimony. The trial court then denied Thompson's motion. McCafferty, supra, contemplates a determination by the trial court concerning the reliability of the statements. This determination cannot be a perfunctory denial of a defense motion. The court must make an affirmative finding of the reliability of the statements by considering the factors noted above. Until such a finding is made, the statements do not show a "particularized guarantee of trustworthiness." State now attempts in its brief to provide the necessary indicia of reliability by asserting after the fact the circumstances surrounding the statements. It is clear, however, that the determination of reliability must be made prior to the admission of the hearsay. See McCafferty, supra; Ryan, supra.
Thompson also contends that there is sufficient evidence to support his conviction on the sexual contact charge. Because of our holding on the first issue, we remand for new trial on this issue also.
Smith testified at trial that H.T. said Thompson had touched his penis. This touching was the basis of the sexual contact charge. SDCL 19-16-38 allows admission of reliable hearsay in both rape and sexual contact cases. Therefore, hearsay admitted on this charge is governed by the same standards delineated above. The trial court need not make a separate finding of reliability for both counts; however, here, no finding of reliability was made.
Accordingly, we reverse and remand both counts for new trial consistent with the views expressed in this opinion.
All the Justices concur.
HERTZ and WUEST, Circuit Judges, acting as Supreme Court Justices, participating.
NOTES
[1] At the time of Thompson's trial, SDCL 19-16-38 read:
A statement made by a child under the age of ten describing any act of sexual contact or rape performed with or on the child by the defendant, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings against the defendant in the courts of this state if:
(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content and circumstances of the statement provide sufficient indicia of reliability; and
(2) The child either:
(a) Testifies at the proceedings; or
(b) Is unavailable as a witness.
However, if the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.
[2] SDCL 19-16-2(2) reads:
A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is
....
(2) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.
This is essentially Fed.R.Evid. 801(d)(1)(B). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601267/ | 379 N.W.2d 382 (1985)
STATE of Iowa, Plaintiff-Appellee.
v.
Glen Merle MAYNARD, Defendant-Appellant.
No. 84-1967.
Court of Appeals of Iowa.
September 24, 1985.
Jim P. Robbins, of Donelson & Robbins, Boone, for defendant-appellant.
Thomas J. Miller, Atty. Gen., and Valencia Voyd McCown, Asst. Atty. Gen., for plaintiff-appellee.
Heard by OXBERGER, C.J., and SNELL, and SACKETT, JJ.
SACKETT, Judge.
At 3:20 a.m., defendant, an employee of the Woodward State Hospital, was observed in a cottage in the hospital complex. Defendant was naked and was getting into bed with a severely retarded female patient who was also naked. Defendant was charged with assault with Intent to Commit Sexual Abuse with No Injury resulting in violation of Iowa Code section 709.11 (1983). The case was tried to the court. Defendant was found guilty as charged *383 and sentenced to a term not to exceed two years. Defendant appeals from his conviction.
Defendant claims the trial court erred in overruling his motion to dismiss[1] and his motion for acquittal and in finding him guilty of assault with intent to commit sexual abuse. The only real issue raised in these three arguments is whether defendant's act of being naked and getting into bed with a severely retarded naked female is sufficient to support a finding of assault with intent to commit sexual abuse. Section 709.11 provides in relevant part:
Any person who commits an assault, as defined in section 708.1, with intent to commit sexual abuse is guilty of ... an aggravated misdemeanor if no injury results.
Section 708.1 provides in relevant part:
A person commits an assault when, without justification, the person does any of the following:
1. Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act.
2. Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.
In determining the sufficiency of evidence to support a guilty verdict, we must consider all the evidence in the light most favorable to the state. See State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980). All legitimate inferences which may fairly and reasonably be deducted therefrom will be accepted. State v. Schrier, 300 N.W.2d 305, 306 (Iowa 1981). Direct and circumstantial evidence are equally probative. Iowa R.App.P. 14(f)(16). Whether the evidence is direct or circumstantial, however, it must raise a fair inference of guilt; it must do more than create speculation, suspicion, or conjecture. State v. Schrier, 300 N.W.2d 305, 308 (Iowa 1981).
The evidence shows the hospital telephone operator calls each cottage every hour. A call had been made about 3:01 a.m. and at 3:20 defendant was observed getting into bed with the naked severely retarded patient. The patient could not speak and was so mentally incompetent and incapacitated that she was unable to understand the nature and consequences of a sex act. When observed defendant had two hands and one knee on her bed. Defendant appears to argue this overt act only shows that he was doing a stupid thing; not that he was going to commit sexual abuse as found by the court.
The Iowa court said in State v. Roby, 194 Iowa 1032, 1043, 188 N.W. 709, 714 (1922):
The overt act must reach far enough towards the accomplishment, toward the desired result, to amount to the commencement of the consummation, not merely preparatory. It need not be the last proximate act to the consummation of the offense attempted to be perpetrated, but it must approach sufficiently near it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made. Whenever the design of a person to commit crime is clearly shown, slight acts done in furtherance of that design will constitute an attempt, and the courts should not destroy the practical and common sense administration of the law with subtleties as to what constitutes preparation and what [is] an act done toward the commission of a crime. It would be useless to attempt to lay down any rule by which an act might be characterized as overt or otherwise in a particular case; general principles must be applied in each case as nearly as can be, *384 with a view to working out substantial justice. [emphasis supplied]
The fact that the defendant was intending to have sexual contact with the patient can clearly be inferred from his act of getting into bed with her while he was naked. There is substantial evidence in the record to support the trial court's finding.
Defendant next contends the trial court abused its discretion by ordering him confined for a period not to exceed two years. The defendant argues the trial court abused its discretion in not granting him a suspended sentence because the trial court only considered the nature of the offense including the need for deterrence and ignored all other factors. At sentencing the trial court gave the reasons for the sentence given, and the trial court's reasons demonstrate it considered the defendant's situation. The court properly considered the nature of the offense and the attendant circumstances. See State v. Dvorsky, 322 N.W.2d 62, 67 (Iowa 1982). It properly considered the protection of the community from further offenses by the defendant and others. See State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979). It also considered defendant's lack of prior criminal history, defendant's employment, and family circumstances. Iowa Code § 901.5 (1983).
There is support in the record for the sentence. The trial court did not abuse its discretion. See State v. Gibb, 303 N.W.2d 673, 687 (Iowa 1981).
AFFIRMED.
NOTES
[1] Defendant's argument on the motion to dismiss is there was not substantial evidence to support the charge. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601290/ | 391 So.2d 1042 (1980)
THOMPSON AND COMPANY CONTRACTORS
v.
Robert COLE.
Civ. 2401.
Court of Civil Appeals of Alabama.
December 17, 1980.
*1043 Dennis G. Riley of Camp & Riley, Huntsville, for appellant.
W. D. Scruggs, Jr. of Scruggs, Rains & Wilson, Fort Payne, for appellee.
BRADLEY, Judge.
This is a workmen's compensation case.
The record reveals the following pertinent facts: Robert Cole was employed by Thompson and Company Contractors who had contracted with People's Telephone Company to install underground telephone cable in Cherokee County, Alabama. At the time of his injury, Cole's job was to install telephone repeaters. While there is contrary testimony, Cole testified that he hurt his back while unloading a repeater from his truck.
Cole went to the emergency room of Cherokee County Hospital that same day where he received a shot. On Sunday morning at 5:30 Cole returned to the hospital where he was admitted, received medication, and was put in traction by Dr. Eugene Bradley.
Cole's employer, Billy Thompson, received information on Tuesday or Wednesday of the next week that Cole was in the hospital; however, it is not clear whether Thompson knew the reason for Cole's hospitalization. At any rate, Thompson sent his crew supervisor, *1044 Harold Norris, to the hospital to give Cole his paycheck. Cole testified he told Norris at that time that he had been injured on the job and to get him some insurance papers. Norris denies the statement was made.
Cole testified that he had no telephone in his room and that he was unable to walk without the aid of a nurse or an orderly. The evidence showed that Cole requested the hospital administrator to contact People's Telephone Company about his injury so they would relay this to Billy Thompson, his employer. While he was in the hospital, Cole managed to contact his attorney to assist in filing his insurance papers.
Thompson was contacted by Cole's attorney, Mr. George Hecht, concerning the injury five or six weeks after the injury. Thompson informed Mr. Hecht to send all employee accident reports to Thompson's insurer. This was done.
On May 14, 1979 Cole filed a complaint seeking workmen's compensation benefits. Thompson denied all material allegations of the complaint. The case was tried on March 10, 1980 and the court entered an order in favor of Cole. Thompson filed a motion for new trial, or in the alternative, to amend the judgment. On May 21, 1980 the court made a "Finding of Fact and Ruling on Defendant's Motion for New Trial."
This "Finding of Fact and Ruling on Defendant's Motion for New Trial" stated that Cole was injured while in the employment of Thompson and within the line and scope of his job, that the injury occurred on October 27, 1978 when Cole injured his back while handling a fifty pound telephone repeater and that Cole was hospitalized as a result of this injury on October 29, 1978. The court further found that no written notice of the injury was formally given to Thompson within five days of the injury, but the court found that this failure was excused and was a reasonable failure based on the physical incapacity and hospitalization of Cole. Furthermore, written notice of the injury was given by Cole through his attorney to Thompson, his employer, within ninety days of the injury. The court further found that based on the testimony of Dr. Eugene Bradley, M.D., Cole had suffered a permanent total disability as a direct result of the injury incurred during the course of his employment with Thompson and Company Contractors. The court ordered that Cole's hospital, doctor and drug bills be paid, that he was to receive $128.00 per week for the rest of "his natural life;" and that he was to receive $10,240.00 (i. e., eighty weeks of disability payments of $128.00) as an immediate judgment.
The first issue presented for our consideration is whether Thompson was given notice of the accident as required by § 25-5-78, Code of Alabama 1975. That section provides:
Every injured employee or his representative shall, within five days after the occurrence of an accident, give or cause to be given to the employer written notice of the accident, and the employee, if he fails to give such notice, shall not be entitled to physician's or medical fees nor any compensation which may have accrued under the terms of this article and article 2 of this chapter, unless it can be shown that the party required to give such notice had been prevented from doing so by reason of physical or mental incapacity, other than minority, fraud or deceit, or equal good reason, but no compensation shall be payable unless such written notice is given within 90 days after the occurrence of the accident or, where death results, within 90 days after the death. [Emphasis supplied.]
The trial court held that the five day written notice requirement was excused and the failure to advise his employer was reasonable based on Cole's physical incapacity and hospitalization. The trial court also found that Cole had given his employer written notice of the injury within ninety days thereafter.
In support of this holding there is evidence that Cole had a painful back injury, that he was oftentimes in traction, that there was no telephone in his room, and *1045 that he was directed to seek help to move around. Furthermore the evidence shows that Cole sought the help of the hospital administrator to get word of his hospitalization to his employer and later engaged a lawyer to inform his employer of his injury and to file the necessary insurance papers. Written notice of the job-related injury was given to the employer by the attorney within ninety days of the injury.
Based on this evidence we conclude that the provisions of § 25-5-78 have been complied with and the trial court properly so held.
Thompson says next that the trial court committed reversible error when it failed to apply the provisions of § 25-5-57(a)(4)e and f, and § 25-5-58, Code of Alabama 1975 to Cole's preexisting injury or disability.
Thompson specifically argues that the trial court failed to respond to the issue raised at trial concerning the effect of the first back injury suffered by Cole on the compensation due him for the back injury which is the subject of the present case.
The trial court found as a fact that Cole had been permanently and totally disabled as a "direct result" of the injury incurred while employed by Thompson.
Section 25-5-57(a)(4), in subparts e and f, Code of Alabama 1975, provides:
e. Second Permanent Injuries Generally.If an employee has a permanent disability or has previously sustained another injury than that in which he received a subsequent permanent injury by accident, such as is specified in the provisions of this section defining permanent injury, he shall be entitled to compensation only for the degree of injury that would have resulted from the latter accident if the earlier disability or injury had not existed.
f. Second Permanent Injury Resulting in Permanent Total Disability Where First Injury Not in Same Employment. If an employee receives a permanent injury as specified in this section after having sustained another permanent injury other than in the same employment, and if the combined effect of the previous and subsequent injury results in permanent total disability, compensation shall be payable for permanent total disability.
Section 25-5-58, Code of Alabama 1975, provides:
If the degree or duration of disability resulting from an accident is increased or prolonged because of a preexisting injury or infirmity, the employer shall be liable only for the disability that would have resulted from the accident had the earlier injury or infirmity not existed.
The key words in these two Code sections are "disability" and "infirmity." These terms refer to a condition which affects the ability to work as a normal man at the time of and prior to the accident. Kroger Co. v. Millsap, 280 Ala. 531, 196 So.2d 380 (1967); Ingalls Shipbuilding Corp. v. Cahela, 251 Ala. 163, 36 So.2d 513 (1948).
The evidence in this case is to the effect that Dr. Bradley considered the direct cause of Cole's back injury of October 27, 1978 to be the lifting of the telephone repeater. Furthermore, Thompson stated that Cole did the work he was assigned to do and did not appear to be disabled, and that he had no knowledge of Cole's prior back problems. The sum and substance of this evidence would support a finding that Cole was able to do the work assigned to him by his employer and that the first injury was no longer a factor to be considered in deciding the compensation to be paid for the injury which is the subject of the present litigation. Thompson says, however, that the trial court made no finding of fact to this effect.
The trial court in workmen's compensation cases is required to make findings of fact and conclusions of law, and these findings should encompass each and every issue presented to and litigated by the trial court; where this is not done, the judgment should be reversed. Harbin v. United States Steel Corp., Ala.Civ.App., 356 So.2d 179 (1978). But when the trial court's finding is meager or omissive, this court will look to the evidence to see if the judgment can be upheld. Pinkney v. James B. Clow *1046 & Sons, Inc., 277 Ala. 648, 173 So.2d 811 (1965).
Although the trial court did not specifically find that Cole had fully recovered from his first back injury and therefore that injury was not a factor to be considered in the present case, the evidence would support such a finding. Thus, we conclude that such finding is sufficient to meet the "meager and omissive" test.
As to appellant's contention that § 25-5-57(a)(4)f should be given effect by the trial court in a specific finding of fact, we hold that the rationale applicable to subsection (a)(4)e is equally applicable to subsection (a)(4)f.
Appellant says next that the trial court failed to find as a fact that Cole was not capable of being retrained for gainful employment and thus it committed reversible error.
Section 25-5-57(a)(4)d requires that an employee must suffer from an injury that totally incapacitates him from working and being retrained for gainful employment in order to be classified as totally and permanently disabled.
In the instant case the trial court concluded that Cole was totally and permanently disabled by an injury suffered while employed by Thompson. Although the trial court did not specifically find that Cole could not be retrained for gainful employment, we hold that implicit in its conclusion that Cole was permanently and totally disabled is the finding that he could not be so retrained. This finding of fact, as with all other findings of fact made by the trial court, must, however, be supported by some evidence; otherwise the judgment cannot stand. Alabama Textile Products Corp. v. Grantham, 263 Ala. 179, 82 So.2d 204 (1955).
Although the case at bar is devoid of evidence that Cole could not be retrained for gainful employment, there is testimony by the employee's doctor that Cole possibly could operate an elevator or some similar type job not requiring a lot of moving around. Such testimony certainly suggests the possibility that Cole could become gainfully employed in some type of work. Such evidence reinforces the conclusion that the proof fails to support a finding that Cole was incapacitated from being retrained for gainful employment. Therefore, the failure of the implicit finding that Cole could not be retrained for gainful employment to be supported in the evidence requires a reversal of the judgment.
Lastly, appellant says that the trial court awarded compensation to Cole "for and during his natural lifetime," which award is contrary to the provisions of § 25-5-57(a)(4)a, Code of Alabama 1975.
Section 25-5-57(a)(4)a provides that compensation for a permanent and total disability is to be paid "during such permanent total disability."
As clearly provided by the Code section, the period of compensation for permanent total disability lasts only so long as the disability continues. Should the disability cease to be other than total at some future time, the compensation for permanent total disability could be terminated. § 25-5-57(a)(4)b, Code of Alabama 1975. Thus, the trial court's award is an incorrect application of the statute.
For the errors above noted, the judgment of the trial court is reversed and the cause remanded so that evidence may be taken as to whether Cole can be retrained for gainful employment and for the trial court to correct that aspect of the judgment relating to the period during which benefits can be paid for permanent and total disability.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.
WRIGHT, P. J., concurs.
HOLMES, J., concurs in part and dissents in part.
HOLMES, Judge (dissenting in part).
I concur in the majority opinion except that portion of the opinion relating to "retrainability." I respectfully dissent from the majority's conclusion that there is no evidence to support a finding that the employee *1047 "was incapacitated from being retrained for gainful employment" and therefore reversal is required.
The Code of Alabama of 1975, § 25-5-57(a)(4)d is as follows:
The total and permanent loss of the sight of both eyes or the loss of both arms at the shoulder or any physical injury or mental impairment resulting from an accident, which injury or impairment permanently and totally incapacitates the employee from working at and being retrained for gainful employment, shall constitute permanent total disability and shall constitute the sole bases on which an award of permanent total disability may be based; provided, that any employee whose disability results from such injury or impairment and who shall have refused to undergo physical or vocational rehabilitation shall not be deemed permanently and totally disabled. (Emphasis supplied.)
As I view the record in the instant appeal, there was absolutely no evidence[1] presented by either party concerning the "retraining," etc., of the employee. Additionally, no issue was presented to the trial court concerning retrainability.
As the majority states, there is evidence to support the trial court's finding that the employee was totally and permanently disabled. Furthermore, the majority states that implicit in the finding that the employee was permanently and totally disabled is the finding that the employee could not be retrained.
I agree with the majority regarding these aspects. Where I "part company" with my learned and distinguished colleagues is when they go further and conclude there was no evidence to support the implicit finding of "no retrainability." This conclusion is, in the instant appeal, inconsistent with the "implicit finding."
In this instance, the same evidence that supports the finding of permanent total disability supports the implicit finding that the employee is not retrainable.
To reverse in this instance, is, to me, to tell the trial courts of this state that even though there is no issue presented or evidence elicited regarding retrainability, and even though there is evidence to support the finding of permanent total disability, the burden is on the employee to negate the possibility of retrainability. Furthermore, the majority opinion stands for the proposition that if the employee under these circumstances does not present such evidence to meet this burden, the appellate courts will reverse.
To put the above interpretation on the pertinent statute is an undue and unfair burden on the employee and is not mandated by the statute.
Needless to say, I would not reverse the trial court on this aspect of the appeal.
NOTES
[1] The evidence alluded to in the majority's opinion concerning the operation of an elevator, was, to me, clearly not presented in any issue of retrainability. Furthermore, it is not addressed to "gainful employment" as contemplated by the statute. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601104/ | 1 So. 3d 184 (2008)
WELLS
v.
STATE.
No. 1D07-5933.
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/1601179/ | 1 So. 3d 187 (2009)
ARUGU
v.
STATE DIV. OF ADMINISTRATIVE HEARINGS.
No. 4D08-160.
District Court of Appeal of Florida, Fourth District.
February 4, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601164/ | 391 So. 2d 681 (1980)
PARK BENZIGER & CO., INC., Appellant,
v.
SOUTHERN WINE & SPIRITS, INC., Appellee.
No. 58916.
Supreme Court of Florida.
December 11, 1980.
Angus M. Stephens, Jr., Coral Gables, for appellant.
Thomas E. Lee, Jr. of Lee, Murphy & Coe, Miami, for appellee.
John M. Johnston and Robert G. Haile, Jr. of White & Case, Palm Beach, for Distilled *682 Spirits Counsel of the United States, Inc., amicus curiae.
McDONALD, Justice.
In an action for declaratory relief brought by Park Benziger & Co., the trial judge passed upon the constitutionality of section 565.095, Florida Statutes, which deals with the distribution and sale of intoxicating liquor. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. (1972).
The issues sought to be determined are (1) whether the statute is applicable to distributor contracts in existence on the statute's effective date, (2) whether a manufacturer or its representative may withdraw a particular brand or label of spirituous or vinous beverage from a distributor without going through the procedure prescribed by section 565.095(5),[1] and (3) whether such a manufacturer may appoint an additional distributor or distributors when that manufacturer has an existing distributor without first terminating the existing distributor in accordance with the provisions of section 565.095.
We hold that the statute cannot be applied to distributor contracts in existence prior to July 1, 1978, and decline to answer the other questions.
Acting under an oral contract with Park Benziger & Co., Southern Wine and Spirits had been the exclusive Florida distributor of a Scottish whiskey labeled "Old Rarity" for approximately eight years prior to July 1, 1978. Since no termination date for this contract existed, it was terminable at will by either party. § 672.309, Fla. Stat.
After July 1, 1978, Park Benziger, dissatisfied with the sales level of Old Rarity, asked Southern either to give up Old Rarity or to allow Park Benziger to appoint a second distributor in addition to Southern. Southern objected and claimed that section 565.095(5) precludes the supplier from doing either of those things. Unsure of its position under the statute, Park Benziger sued in circuit court for declaratory relief. The trial judge ruled that the statute is constitutional, that it applied to the parties to this action, and that the manufacturer cannot appoint an additional distributor without going through the procedure set forth in the act. In doing so he did not directly address the question of whether the act *683 impermissibly impaired the terms of contracts in existence prior to the statute's effective date.
The twenty-first amendment to the United States Constitution recognizes the authority of a state to regulate the sale and distribution of liquor within its borders. A state may determine the conditions upon which liquor can come into its territory and what will be done with it after it gets there. United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 65 S. Ct. 661, 89 L. Ed. 951 (1945). In upholding New York's Price Affirmation Act (which was similar to section 565.15 of the Florida Statutes) the United States Supreme Court affirmed this authority and recognized the state's power in this regard. Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 86 S. Ct. 1254, 16 L. Ed. 2d 336 (1966). In California v. LaRue, 409 U.S. 109, 93 S. Ct. 390, 34 L. Ed. 2d 342 (1972), that Court upheld the prohibition of the sale of alcohol by the drink in establishments that permitted certain types of dancing and nudity.
But the fact that intoxicating beverages is the subject matter of legislation does not automatically make such legislation valid, and such an act must fall if it violates a constitutional prohibition. In Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), the Court struck down an Oklahoma law setting the drinking age for males at 21 and for females at 18 as a violation of equal protection. In Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 84 S. Ct. 1293, 12 L. Ed. 2d 350 (1964), the Supreme Court held that New York's liquor licensing law did not extend to a company headquartered at the New York Port Authority whose sale of liquor commenced outside the continental limits of the United States. This Court in Division of Beverage, Dep't. of Business Regulation v. Bonanni Ship Supply, Inc., 356 So. 2d 308 (Fla. 1978), held that a statute regulating export activity of "in bond" liquor was subject to a previous federal regulatory scheme and was, therefore, in violation of the commerce clause of the United States Constitution.
Both the United States and the Florida Constitutions provide that no law impairing the obligation of contracts shall be passed.[2] Exceptions have been made to the strict application of these provisions when there was an overriding necessity for the state to exercise its police powers, but virtually no degree of contract impairment has been tolerated in this state. Yamaha Parts Distributors, Inc. v. Ehrman, 316 So. 2d 557 (Fla. 1975).
We are unable to discern in this statute a public purpose of sufficient need to authorize an impairment of existing contractual agreements. The trial judge opined that its purpose was the prevention of the "tied-house evil".[3] This is not clear from the statute itself nor from any history of its enactment, but if this were the purpose, that objective does not create sufficient need for the exercise of police power in conflict with these parties' constitutional rights.[4]
In Pomponio v. Claridge of Pompano Condominium, Inc., 378 So. 2d 774 (Fla. 1979), we discussed the analysis to be performed in deciding whether a statute unconstitutionally impairs the obligation of a contract:
To determine how much impairment is tolerable, we must weigh the degree to which a party's contract rights are statutorily impaired against both the source of authority under which the state purports to alter the contractual relationship and the evil which it seeks to remedy. Obviously, this becomes a balancing process to determine whether the nature and extent *684 of the impairment is constitutionally tolerable in light of the importance of the state's objective, or whether it unreasonably intrudes into the parties' bargain to a degree greater than is necessary to achieve that objective.
Id. at 780.
We agree with Park Benziger's contention that section 565.095(5) cannot be applied to the instant contract. If the statute were applied here, the contract originally terminable at the will of either party would become one in which one party (the supplier) could terminate only upon a showing of good cause to an administrative agency.[5]
This finding, which authorizes the termination of the distributorship agreement at the will of either party, settles the controversy between these parties. We therefore refrain from addressing the other constitutional challenges or questions involving the statute's interpretation.
This cause is remanded to the circuit court for entry of judgment consistent with this opinion.
It is so ordered.
SUNDBERG, C.J., and ADKINS, BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur.
NOTES
[1] § 565.095(5), effective July 1, 1978, reads as follows:
WITHDRAWAL OF REGISTERED BRAND OR LABEL. No brand or label registered hereunder or any brand or label of wine may be withdrawn from any distributor after it has been sold by a manufacturer to any distributor unless good cause for its withdrawal is shown by the manufacturer. Withdrawal of a registered brand or label by a manufacturer shall be permitted only if written notice is sent by certified mail to any distributor carrying the manufacturer's brand or label to the division prior to its withdrawal. If no objection is lodged with the division by a distributor carrying the brand or label intended to be withdrawn within the time as hereinafter set forth, the brand or label may be withdrawn without a showing of good cause 60 days after the division's receipt of the manufacturer's notice of intent to withdraw. Any distributor carrying the brand or label or line who objects to its withdrawal shall file its written objection by mail with the division and the manufacturer within 60 days from its receipt of the manufacturer's notice of intent to withdraw. The distributor's objection shall be deemed a petition for declaratory statement, must comply with the division's administrative rule for such petitions, and shall be disposed of thereby. In rendering its decision, the division shall consider the reasons given by the manufacturer to justify the withdrawal and the distributor's reason against the withdrawal. If the division determines that good cause to justify the withdrawal is absent, the division may prohibit the brand or label from being withdrawn, and failure on the part of the manufacturer so prohibited to ship the distributor a reasonable amount of the brand sought to be withdrawn will result in the withdrawal from sale in this state of all its brands. All distributors carrying a particular brand or label of spirituous or vinous beverages as of July 1, 1978 shall be deemed to be the distributors for the manufacturers of such brands or labels. No other distributors may be appointed by any manufacturer or representative of a manufacturer to carry the brands or labels already distributed on July 1, 1978 unless the division first approves the withdrawal from the existing distributor pursuant to this act. The purchase of any spirituous or vinous beverages by any licensed wholesaler or distributor from any manufacturer who has not complied with the provisions of this subsection is prohibited.
[2] U.S.Const., art. I, § 10, cl. 1; art. 1, § 10, Fla. Const.
[3] "Tied-house evil" is the monopolistic control of distributors by manufacturers of intoxicating liquors. See Pickerill v. Schott, 55 So. 2d 716 (Fla. 1951).
[4] The importance of this statute to the state is far less than the curative statute dealing with road contracts which this Court, by a narrow margin, said could not impair contracts in State, Dep't. of Transp. v. Edward M. Chadbourne, Inc., 382 So. 2d 293 (Fla. 1980).
[5] The Supreme Court of Delaware reached a similar conclusion on a similar fact situation in Globe Liquor Co. v. Four Roses Distillers Co., 281 A.2d 19 (Del. 1971), cert. denied 404 U.S. 873, 92 S. Ct. 103, 30 L. Ed. 2d 117 (1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304600/ | ANDEESON, P. J.,
The plaintiff, Albert E. Meegal, sued the Memphis Street Eailway Company and Walter Ernest Huffman for damages for personal injuries sustained by him when a bicycle on which he was riding was allegedly struck by a bus owned by the defendant street railway company and operated on the streets of Memphis by its servant, Huffman. A trial before the judge and a jury resulted in a verdict for the defendants upon which a judgment was entered, dismissing the suit.
The plaintiff, Meegal, insists: (1) that there was no material evidence to support a verdict; that (2) the judge committed the reversible error in giving to the jury a special request submitted by the defendant, instructing them that the fact that the defendant railway company paid a part of the medical and hospital bills of the plaintiff should not he considered as an admission of liability on the part of the defendants, or either of them; and (3) that the plaintiff’s case was prejudiced by the misconduct of a juror in allegedly “obtaining evidence outside the court room and communicating (it) to the other jurors after the charge of the court and while the jury was deliberating.”
The accident happened in the daylight at the intersection of Florida Street and McLemore Avenue in Memphis. Florida Street runs north and south and is intersected by McLemore Avenue running east and west. Just prior to the accident the bus was proceeding north on Florida Street, the driver intending to turn east on McLemore. Plaintiff on his bicycle was also proceeding *406north, on Florida purposing to cross the intersection and continue in that direction.
The factual theory of the declaration supported by some evidence was that after plaintiff had entered the intersection the bus came from behind him into McLemore and without stopping’ or giving any warning, made the right turn into McLemore and as it did so the side of it struck the plaintiff and injured him and plaintiff ’s evidence was to this effect.
Upon the other hand, there was substantial evidence to show that the bus passed the plaintiff when he was one hundred feet south of the intersection; that as it did so the operator blew his horn twice; that the bus was then traveling at a speed of fifteen to twenty miles per hour and the bicycle at approximately five miles per hour; that after passing the plaintiff, the operator slowed the bus down to a speed of approximately five miles per hour; that he gave a right turn signal by means of electrical signal device situated on the rear of the bus; that, in addition, the operator looked to the rear by means of his rear view mirror, and seeing no bicycle, proceeded to turn east on McLemore; that when the turn had been almost completed and the bus was facing east on McLemore, the plaintiff ran his bicycle into the right center of the vehicle; that the bus stopped within two feet thereafter; that the plaintiff did not see the bus until after he entered McLemore Avenue and that just prior to the accident instead of being on the lookout ahead, the plaintiff was looking back over his right shoulder
That the evidence tending to show the foregoing facts was abundantly sufficient to justify the jury verdict is not a debatable question.
*407Pertaining to the plaintiff’s second contention, it appears that immediately after the accident the operator of the bus telephoned a request to the office of the street railway company that a policeman and an ambulance be sent to the scene. Very soon thereafter, the ambulance and the officer arrived and the plaintiff was conveyed to St. Joseph’s Hospital. Shortly after the plaintiff’s admission to the hospital, the defendant railway company sent a doctor to attend the plaintiff. Plaintiff accepted the doctor’s services without demur, and did not himself call another physician until after he had employed an attorney.
In- addition, the plaintiff offered in evidence a hill from the hospital, showing on its face that the defendant railway company paid certain medical and hospital expenses incident to the treatment of the plaintiff at that institution.
Applicable to thes facts, the judge granted the defendant’s special request to the effect that the payment of the medical and hospital hills should not be considered an admission of liability on the part of either defendant.
If the question he the control or identity of the apparatus causing the injury, an offer of assistance to the injured party or the payment of his hospital and medical expenses, may be competent as evidence of an implied admission hearing on that issue, hut hy the weight of authority, such evidence is not competent as an admission tending to show actionable negligence. Wigmore on Evidence, 3d Ed., Vol. II, sec. 283-A; 31 C. J. S., Evidence, p. 1052, Section 291. Cf. D. S. Etheridge Co. v. Peterson, 19 Tenn. App. 530, 90 S. W. (2d) 957. The considerations which are the bases of the majority rule are the same as those which underlie the *408rule that the making of repairs of premises subsequent to an accident due to a defect thereon cannot he considered as an admission of antecedent negligence. Wigmore on Evidence, supra, and Cf. Illinois Cent. Railroad Co. v. Wyatt, 104 Tenn. 432, 58 S. W. 308.
The courts of North Carolina, though recognizing the general rule, appear to hold that if the offer of assistance or payment of hospital and medical expenses is attended by circumstances indicating an admission of liability rather than an act of benevolence, the evidence is competent upon the issue of negligence. Brown v. Wood, 201 N. C. 309, 160 N. E. 281; Arnold v. Owens, 4 Cir., 78 F. (2d) 495. The same position is taken in Briggs v. John Yeon Co., 168 Or. 239, 122 P. (2d) 444.
We need not speculate whether under the rule for which plaintiff contends an offer of assistance, fulfilled or unfulfilled, would jeopardize the protection ordinarily afforded by the now widely carried policies of liability insurance where such a policy is held by the offerer.
It is sufficient that, with the greatest deference to those who entertain it, we are unable to assent to the view that the motive with which assistance is rendered or offered, should be a controlling factor in determining whether the fact that such assistance was rendered constituted an admission bearing on the issue of negligence.
Apart from the elusiveness of human motives generally and the fact that a contrary view would sanction as an admission against interest, a conclusion of law reached by a layman or at least one of mixed law and fact. Cf. D. S. Etheridge Co. v. Peterson, supra, under the suggested rule one involved in an accident could never lend substantive assistance to an injured party by procuring a doctor for him or otherwise, without running the risk of making evidence against himself. Liability in person*409al injury cases is often a doubtful matter, about which lawyers and judges have difficulty in agreeing. It ought not to be required that a layman be put to such a decision before he can contribute to the relief of an injured party without running the risk of being held to have admitted that the injuries were due to his fault. Cf. Sias v. Consolidated Lighting Co., 73 Vt. 35, 50 A. 554.
A willingness to assist another in distress should not, we think, be accompanied by such a hazard. It is not in the interest of society that humanitarian or benevolent instincts be so hobbled. Nor is it in keeping with the mores of the community. Before heeding a call for succor, only an outcast would debate the question of his liability vel non and turn his answer on the conclusion reached.
The ruling upon the particular question in Sullivan v. Heyer, 300 Ill. App. 599, 21 N. E. (2d) 776, does support the plaintiff’s contention, but it was made without discussion or citation of authority, and, with due deference, we are unable to regard it as persuasive.
In the present case, the subject was not touched upon by the judge in his general charge. Therefore the request embodying correct statement of the law applicable to the facts of the case was not improper.
The remaining question is based on the alleged misconduct of the juror, Graham.
During the trial Graham rode on one of the defendant’s buses, similar to the one involved in the accident under review. When the bus which was proceeding-north on Cleveland Street made a right turn at Overton Park (an entirely different intersection from that here involved), Graham inquired of the operator, “Do you always stop for this corner?” to which the operator *410responded, “I Rave always stopped there because there is always somebody on the street to get on or off.”
During the deliberations of the jury, Graham communicated this information to the other jurors. All the jurors, who were examined in the connection with the motion for a new trial, testified that Graham’s statement had no influence whatsoever on their verdict. With respect to the last statement, to avoid any undue implication, we repeat what has been said many times before, that a juror will not be allowed to impeach his verdict by saying after the trial what did or did not influence him. The testimony of jurors is, of course, received to show the fact that material evidence not heard upon the trial was communicated to them during their deliberations, but not to show its effect. However, since the act of 1911, Chapter 32, carried into the Code as Section 10654, misconduct consisting of such extraneous communications is not reversible error, unless it affirmatively appear that the result was affected thereby. Thomason v. Trentham, 178 Tenn. 37, 154 S. W. (2d) 792, 138 A. L. R. 461; Hime v. Sullivan, Tenn. Sup., 221 S. W. (2d) 893.
There is no such showing in this case. Apart from other reasons, the statement of the defendant’s servant that it was his duty to stop before making a right turn from Cleveland Street to Overton Park, an entirely different intersection, or that he always did so because at that corner there was always someone to get on or off the bus, was not relevant or material to any issue in the present case. Moreover, if it could be said to have been of any probative force at all, it was obviously more favorable to the plaintiff than it was to the defendant when the issues and evidence in the case are considered. Hence, there is no reasonable basis for *411the view that the communication by juror Graham to his fellow jurors affected the result or operated in any wise to prejudice the plaintiff’s rights. Cf. McAlester v. Monteverde, 22 Tenn. App. 14, 21, 115 S. W. (2d) 257.
In support of his contention the plaintiff cites a line of cases typified by Street Railway & Tel. Co. v. Simmons, 107 Tenn. 392, 64 S. W. 705; and Robilio v. Webb, 7 Tenn. Civ. App. 127. While we do not think the rule of these cases, if applicable, would require a different result, it is well enough to note that since the decision in Thompson v. Trentham, supra, they can no longer be regarded as authoritative on the particular question.
The result is, we find no reversible error in the record and the judgment is affirmed at the cost of the plaintiff.
Swepston, J., and Tipton, Sp. J., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2441226/ | 967 N.E.2d 494 (2008)
382 Ill. App. 3d 1205
359 Ill. Dec. 764
PEOPLE
v.
DIMATTEO.
No. 1-06-2589.
Appellate Court of Illinois, First District.
June 18, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601338/ | 391 So.2d 224 (1980)
BEAVER CRANE SERVICE, INC., Appellant,
v.
NATIONAL SURETY CORPORATION, Pittman Insurance Agency, Inc., and William Pittman, Chesapeake Adjustors, Inc. and William Kotaska and Markel Service, Inc., Appellees.
No. 79-2221.
District Court of Appeal of Florida, Third District.
November 18, 1980.
Rehearing Denied January 9, 1981.
*225 Montgomery, Lytal, Reiter, Denney & Searcy and Charles C. Powers, West Palm Beach, for appellant.
Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael Murphy and Thomas F. Martin, Miami, Walsh, Theissen & Boyd and Mark R. Boyd and Alan V. Hanson, Ft. Lauderdale, David L. Willing and Karel H. Baarslag, McDonald & McDonald and J.A. Dillian, Miami, for appellees.
Before HUBBART, C.J., and BARKDULL and DANIEL S. PEARSON, JJ.
HUBBART, Chief Judge.
The central question presented for review by this appeal is whether insurance proceeds due and payable under an insurance policy for accidental damage to an insured chattel [which is the subject of a security agreement and the collateral for a loan] are payable to the secured party under the security agreement. We hold that such proceeds are so payable to the above secured party to the extent of its secured interest under Section 679.306(1), (2), Florida Statutes (1975). As the subject insurance proceeds were properly paid by the insurer to the secured party in the instant case, we affirm the final summary judgment entered below.
I
The facts of this case as they pertain to the issue on appeal are somewhat complex. The plaintiff Beaver Crane Service, Inc. purchased a certain mechanical grove crane for its business and financed the purchase thereof through Associates Commercial Corporation. The plaintiff executed a promissory note and a security agreement to Associates pledging the grove crane as collateral therefor. Under the security agreement, Associates was given a security interest in the crane with the right at its option to take possession of same without notice or demand upon the plaintiff's failure to make timely payments required under the promissory note. The security agreement further required the plaintiff to provide insurance coverage on the subject grove crane for the benefit of the secured party in a sum not less than the amount secured. Finally, the security agreement specifically adopted the applicable sections of the Uniform Commercial Code with respect to the disposition of proceeds on the *226 subject collateral. A duly executed financing statement was subsequently filed with the Secretary of State in order to protect the interest of the secured party Associates in both the collateral grove crane and the proceeds of the collateral.
The plaintiff, in compliance with the above security agreement, obtained an insurance policy on the subject crane from the defendant National Surety Corporation. Defendants Pittman Insurance Agency and William Pittman, as agent, were the insurance brokers which procured the insurance coverage requested by the plaintiff; the defendant Markel Service, Inc. was the insurance broker who issued the insurance policy for the defendant National Surety.
The subject insurance policy contained the following relevant provisions as to the party or parties to be paid in case of an insured loss:
"Loss Payable Clause: Loss if any to be adjusted only with the insured and payable to the insured and Associates Commercial Corporation, P.O. Box 8428, Ft. Lauderdale, Florida. See endorsement."
The endorsement referred to in the above provision, in turn, provided in relevant part as follows:
"Loss or damage, if any, under the policy shall be payable as interest may appear to Associates Commercial Corp., P.O. Box 8428, Ft. Lauderdale, Florida, 33310."
"Whenever a payment of any nature becomes due under the policy, separate payment may be made to each party at interest provided the Company protects the equity of all parties."[1]
A
On June 1, 1976, the insured crane sustained accidental damage during the course of operation while in the possession of the plaintiff. The plaintiff notified and filed a claim with the defendant National Surety Corporation for the damage loss sustained to the crane in the accident. The lienor Associates made no claim under the subject policy at this time. The defendant National Surety through its agent and adjusters, the defendant Chesapeake Adjusters, Inc. and William Kotaska, proceeded to adjust the claim. The plaintiff took the crane to the defendant Florida Equipment Company for repairs. The defendant Florida Equipment Company, in turn, repaired the crane and submitted a bill for $56,397.85.
On August 16, 1976, the defendant National Surety wrote a letter to the plaintiff and refused to pay the claim on the ground that the insured crane utilized a boom which exceeded 40 feet in length and was allegedly excluded from coverage under paragraph five of the subject insurance policy.[2] The defendant Florida Equipment, in turn, refused to return the crane to the plaintiff for failure to pay the submitted bill, and eventually converted the crane by selling it to a third party without the consent of the plaintiff.
B
On June 1, 1976, at the time of the aforementioned accident, the plaintiff was six days late on an installment payment to Associates under the promissory note. On June 2, 1976, Associates sent a letter to the plaintiff stating that its May 25, 1976, payment was overdue, that delinquent charges *227 were being assessed against the plaintiff and that immediate remission of the overdue installment plus delinquent charges was required. The letter further stated, "If you cannot forward these funds, please contact us and we will attempt to work with you on arrangements for payment." The plaintiff, however, made no further payments on the note claiming that the defendant National Surety's refusal to pay the claim and the defendant Florida Equipment's sale of the crane caused it to lose certain revenues and eventually go out of business. As a result, the plaintiff defaulted on the loan to Associates, and, on July 12, 1977, a judgment of $90,552.93 was entered against the plaintiff and in favor of Associates in the Circuit Court for the Eleventh Judicial Circuit of Florida.
C
On May 17, 1977, the lienor Associates belatedly asserted its rights under the subject insurance policy by bringing action in the Circuit Court for the Eleventh Judicial Circuit of Florida against the defendant National Surety, averring that it was entitled, under the above policy, to payment on the claim involving the damaged insured crane.[3] On November 6, 1978, the defendant National Surety settled with Associates on the lawsuit, paid an undisclosed sum to Associates under the subject insurance policy, and the lawsuit in question was dismissed by the court. It plainly appears from the record that the secured interest of Associates in the crane at the time of the subject accident far exceeded the damage loss to the crane.[4]
D
On October 28, 1977, the plaintiff brought suit against the defendant National Surety in the Circuit Court for the Eleventh Judicial Circuit of Florida for breach of the subject insurance policy based on the failure to pay the plaintiff on the claim involving the damaged crane. Suit was also brought against the defendants Chesapeake Adjustors and William Kotaska for certain misrepresentations allegedly made that the claim in question would be paid to the plaintiff. Suit was further brought against the defendants Pittman Insurance Agency and William Pittman for failure to procure insurance covering the subject accident as requested by the plaintiff. Finally, the plaintiff also sued the defendants Florida Equipment Company and J.T. Vernon, as its agent, for converting the subject insured crane by selling same without the consent of the plaintiff.
Based on the above record, the trial court entered a partial summary judgment on liability for the plaintiff against the defendants Florida Equipment Company and J.T. Vernon on the conversion claims; no appeal has been taken from this ruling. The trial court also entered a final summary judgment for the defendant National Surety as well as the other defendants in this cause; the plaintiff has taken a timely appeal from this final summary judgment.
II
The controlling statutory authority in this case is Section 679.306, Florida Statutes (1975) which provides as follows:
(1) "`Proceeds' includes whatever is received when collateral or proceeds is sold, exchanged, collected or otherwise disposed of. The term also includes the account arising when the right to payment is earned under a contract right. Money, checks and the like are `cash proceeds.' All other proceeds are `noncash proceeds.'
(2) Except where this chapter otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless his action was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor."
It has been held, based on the above statute, that insurance proceeds due and payable *228 under an insurance policy for loss or damage, including theft or destruction, to an insured chattel [which is the subject of a security agreement and the collateral for a loan] is payable to the secured party to the extent of its secured interest under the security agreement. Kahn v. Capital Bank, 384 So.2d 976 (Fla. 3d DCA 1980); Insurance Management Corp. v. Cable Services of Florida, Inc., 359 So.2d 572 (Fla. 2d DCA 1978); see Paskow v. Calvert Fire Insurance Co., 579 F.2d 949 (5th Cir.1978); PPG Industries, Inc. v. Hartford Fire Insurance Co., 531 F.2d 58 (2d Cir.1976). Indeed, this case law has since been expressly codified by amendment to the above statute. Kahn v. Capital Bank, 384 So.2d at 977 n. 2; § 679.306(1), Fla. Stat. (1979).
III
In the instant case, the subject insurance policy by endorsement makes the secured party Associates the loss payee under the policy only to the extent "as interest may appear." In our view, Associates' interest in the subject insurance proceeds clearly appears in this case by virtue of the security agreement and applicable UCC law stated above. The security agreement makes Associates the secured party on the collateralized, insured crane, and, indeed, requires the plaintiff to take out insurance in order to properly protect the interest of Associates in the crane. The security agreement further adopts the applicable provisions of the UCC with reference to proceeds on the collateral. Under the applicable UCC law, as stated above, the secured party Associates was entitled to the proceeds on the insurance policy upon the damage loss sustained to the crane on June 1, 1976 to the extent of its secured interest. Its secured interest in the crane at the time of the subject accident greatly exceeded the damage loss sustained, and, accordingly, Associates as the secured party was entitled to, and properly received, the entire insurance payout in this case.
The plaintiff strenuously argues, and we agree, that it was in lawful possession of the insured crane at the time of the damage to the crane on June 1, 1976. We do not believe, however, that such lawful possession entitles the plaintiff to the insurance proceeds herein. The entitlement to insurance proceeds upon the loss or damage to collateral which is the subject of a security agreement does not turn on lawful possession or title under the UCC. It turns on whether the secured party, as here, has an interest, by virtue of said security agreement, in the subject collateral. Associates demonstrated such an interest in this cause, and, therefore, properly received the full insurance payout herein; the plaintiff is not entitled, as correctly ruled by the trial court, to any of these proceeds.
At the oral argument in this cause, the plaintiff conceded, and we agree, that its claims against the defendants Chesapeake Adjusters, William Kotaska, Pittman Insurance Agency and William Pittman must necessarily fall if its claim against the defendant National Surety falls. As we have concluded that the plaintiff has no claim against the defendant National Surety herein, it follows that it has no claims against the above remaining defendants either. The final summary judgment entered in favor of all the above defendants is, accordingly,
Affirmed.
NOTES
[1] It is a matter of some dispute whether this endorsement was before the trial court at the time of the motion for summary judgment. It was clearly argued by both parties at the hearing on the motion for summary judgment. Our review of the record reveals that the endorsement does appear in the record at pages 13 and 1445 and was, in view of all the circumstances, properly before the trial court at the time of the motion for summary judgment. Indeed, no one on this appeal contests either the existence or accuracy of the above endorsement to the policy or that the endorsement formed, in part, the basis for the trial court's ruling herein.
[2] The defendant National Surety subsequently abandoned this position when it settled on the submitted claim with Associates Commercial Corporation, the lienholder on the insured crane. In any event, National Surety was correct, albeit for the wrong reason, in refusing to pay the plaintiff Beaver Crane under the subject policy because, as will be seen, the lienor Associates was entitled to the total payout under the said policy.
[3] From this record, it is apparent that no claim was submitted by Associates for the conversion of the insured crane.
[4] We reject the plaintiff's contention that the record discloses a genuine issue of fact on this subject. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601425/ | 379 N.W.2d 30 (1985)
C. Norris BUCKINGHAM, Plaintiff-Appellant,
v.
D. Morris STILLE and Vivian Stille, Defendants-Appellees.
No. 84-1635.
Court of Appeals of Iowa.
October 29, 1985.
Robert Kohorst and Daniel J. Murtaugh of Louis, Moore, Kohorst, Louis, Murtaugh & Kohorst, Harlan, for plaintiff-appellant.
Mark D. Swanson of Swanson, Boeye & Bloom, and Phillip C. Armknecht of Reese & Armknecht, Red Oak, for defendants-appellees.
Heard by DONIELSON, P.J., and SCHLEGEL, and HAYDEN, JJ.
HAYDEN, Judge.
Plaintiff appeals from an adverse judgment in an action based upon an alleged oral contract for a real estate finder's fee. He asserts that: 1) the statute of frauds provision set forth in 700 Iowa Administrative Code 1.23 is not applicable to oral finder's fee agreements; 2) defendants' statute of frauds defense was waived by partial performance and equitable estoppel, and 3) substantial evidence supports plaintiff's *31 recovery on either contract or quantum meruit theories. We affirm.
C. Norris Buckingham was a licensed real estate broker. In 1977, he was contacted by D. Morris and Vivian Stille, who wished to sell their Wyoming ranch and buy some land in southwest Iowa. Buckingham met with the Stilles several times between 1977 and 1980. During this time, Buckingham claims the Stilles agreed to pay a finder's fee in the amount of five percent of the value of the Stilles' Wyoming ranch.
In January 1981, the Stilles wrote Buckingham and indicated that they were still interested in purchasing some land in Iowa. In July 1982, Buckingham received a tip that one Marian Confer was interested in selling his farm and purchasing a ranch out west. Plaintiff spoke to Confer and then called the Stilles to confirm the finder's fee arrangement. The Stilles allegedly indicated that the arrangement was still good. A few days later, plaintiff and Confer visited the Wyoming ranch. At that time Morris Stille allegedly told Buckingham that he would not be able to complete the five percent finder's fee agreement.
In September of 1982, defendants listed their ranch with a Wyoming realtor. They subsequently sent a letter to plaintiff informing him of the listing contract and suggesting that plaintiff contact their realtor to make a fee-splitting arrangement.
In the early part of 1983, Buckingham met with Confer and Confer's attorney to help draft an offer for defendants' property. Defendants rejected the offer and all negotiations stopped. Later that year defendants and Confer exchanged properties.
Buckingham brought this action to recover the finder's fee. The trial court ruled that plaintiff failed to show that the finder's fee agreement existed between him and defendants. The court found that any sort of agreement failed when plaintiff learned defendants' ranch was listed with a Wyoming realtor and began working with the realtor. Buckingham has appealed.
In reaching its decision, the trial court indicated that the rationale of Maynes Real Estate, Inc. v. J.F. McPherron, 353 N.W.2d 425 (Iowa 1984), was controlling. In Maynes the supreme court considered whether a broker could recover under the theory of quantum meruit although he had not met the written agreement requirement of section 1.23, Iowa Administrative Code, chapter 700. The court ultimately concluded that quantum meruit recovery would thwart the purpose of section 1.23 and, thus, recovery was not allowed. Id. at 428.
Buckingham claims that the trial court's reliance on Maynes is misplaced. He argues that the present case is distinguishable since he is attempting to enforce a finder's fee contract rather than a listing agreement. Because of this, it is claimed that the writing requirement of section 1.23 is not applicable and quantum meruit is available.
The determinative issue is whether section 1.23 of the Iowa Administrative Code, chapter 7, applies to finder's fee contracts. If this section does apply, then any judicial interpretations such as Maynes would also be applicable.
Section 1.23 provides, in part:
All listing agreements shall be in writing, properly identifying the property and containing all of the terms and conditions under which the property is to be sold, including the price, the commission to be paid, the signatures of all parties concerned and a definite expiration date. It shall contain no provision requiring a party signing the listing to notify the broker of the listing party's intention to cancel the listing after such definite expiration date.
As with a statute, we seek to determine and give effect to the intent of those who drafted the rule. Pursuant to Iowa Code section 4.2, we construe the provision liberally "to promote its objects and assist the parties in obtaining justice."
The purpose of section 1.23 was discussed in Milholin v. Vorhies, 320 N.W.2d 552, 554 (Iowa 1982). There the court indicated that the rule is analogous to a statute *32 of frauds provision. The court further endorsed a statement of the Vermont Supreme Court characterizing a similar rule:
Ostensibly, the purpose of this rule is for the protection of the public to establish fair dealings between parties, standardize the procedure and practices in the real estate business and to prevent fraud. Its purpose is similar to that of the statute of frauds, which, ... "is to prevent a party from being compelled, by oral and perhaps false testimony to be held responsible for a contract he claims he never made."
Id. (quoting Green Mountain Realty, Inc. v. Fish, 133 Vt. 296, 299, 336 A.2d 187, 189 (1975)). The effect of the rule "is not to invalidate oral listing agreements, but to make them unenforceable under proper objection." Id.
Our research reveals several other jurisdictions with rules or statutory provisions having similar purposes. However, courts have reached varying conclusions regarding their applicability to finder's fees contracts. See Annot., 24 A.L.R.3d 1160, 1168-69 (1969). In jurisdictions where oral finder's fee contracts are considered enforceable, courts generally limit their consideration to the narrow nonnegotiating powers of a "finder." See, e.g., State v. Rentex, Inc., 51 Ohio App.2d 57, 365 N.E.2d 1274 (1977); Tyrone v. Kelley, 9 Cal.3d 1, 106 Cal.Rptr. 761, 507 P.2d 65 (1973). The fact that the nature of the business is real estate is deemed to be of little consequence.
Some courts have recognized that the line of demarcation between finders and brokers is somewhat vague and have refused to exempt finders from operation of the statute of frauds provisions.
In Schoenfeld v. Silver Moon Springs, Inc., 325 F.Supp. 199 (Wisc.1971), a Wisconsin district court considered the following statute of frauds provision:
Every contract to pay a commission to a real estate agent or broker or to any other person for selling or buying real estate shall be void unless such contract or note or memorandum thereof describing such real estate, expressing the price for which the same may be sold or purchased, the commission to be paid and the period during which the agent or broker shall procure a buyer or seller, be in writing and be subscribed by the person agreeing to pay such commission.
Section 240.10(1), Wis.Stats. (1967) (emphasis added).
The plaintiff in Schoenfeld argued that this provision was inapplicable since his services were limited to finding a buyer and he would not participate in actual negotiations with the buyer. 325 F.Supp. at 200. In rejecting this argument, the court noted that the statutory phrase "any other person" was broad enough to include the plaintiff. Id. at 201. The court also refused to recognize any legally significant distinction between "selling" or "procuring a purchase," reasoning that the words are synonymous terms when used in real estate contracts. Id. at 202.
In Minichiello v. Royal Business Funds Corp., 18 N.Y.2d 521, 277 N.Y.S.2d 268, 223 N.E.2d 793 (1966), the New York Court of Appeals recognized that contracts required to be evidenced by a writing include a contract for compensating a "finder," "originator," or "introducer." Id. at 525, 277 N.Y.S.2d at 270, 223 N.E.2d at 795. In reaching this conclusion, the court stated:
If, indeed, there is any definite distinction between finders and brokers, it would probably be in the quantity of services rendered by each. It is possible for a finder to accomplish his service by making only two phone calls and, if the parties later conclude a deal, he is entitled to his commission. But the difficulty in proving services ordinarily varies in an inverse proportion to the amount of services rendered.
Thus, to include brokers and to exclude finders from the statute is to permit oral testimony in the very cases which are the least susceptible to oral proof.
Id. at 527, 277 N.Y.S.2d at 272, 223 N.E.2d at 796.
*33 We subscribe to the view set forth in Minichiello and Schoenfeld. The services performed by finders and brokers are very similar. As such, we see little reason to distinguish between the two when applying commission rule 1.23. The nature of real estate transactions, whether they involve brokers or finders, is such that unfounded and multiple claims for commissions are frequently asserted. Likewise, in absence of a writing requirement employers are able to escape liability by simply denying the fact of employment. We believe the commission intended to guard against these evils through the writing requirement set forth in rule 1.23. Absent some indication from the commission, we are not willing to allow persons to avoid the writing requirement simply by characterizing themselves as "finders" rather than "brokers." To do so would seriously undermine the intent of the commission, as well as the effectiveness of the rule.
Furthermore, as in Minichiello and Schoenfeld, the language of rule 1.23 is broad enough to include finders. The rule requires "listing agreements" to be in writing, a term which the commission has defined as "an agency agreement, whereby the property owner employs the real estate broker to find a purchaser for his property, or a third party employs the broker to find property for him to buy." Iowa Real Estate Commission, Real Estate Manual at 74 (1980) (emphasis added). It is evident that this definition would include the services performed by the plaintiff in this action finding a purchaser for the Stilles' Wyoming real estate. In a broader sense, we determine this definition includes all services commonly performed by a finder.
Accordingly, we hold that finder's fee contracts must be in writing pursuant to the real estate commission rule 1.23. We further hold that the Maynes decision is controlling insofar as it precludes quantum meruit recovery for contracts which do not comply with rule 1.23. As the Maynes court indicated recovery under this theory would thwart the purpose of section 1.23. 353 N.W.2d at 428. For similar reasons we also reject Buckingham's claim that the Stilles are equitably estopped from asserting the statute of frauds provision due to part performance. The provision in question explicitly prohibits recovery on oral contracts of employment; plaintiff cannot now attempt to bypass this mandate by relying on an equitable theory of recovery, whether it be quantum meruit or equitable estoppel. As the Maynes court indicated, "If this rule works some inequities in particular cases, it is within the purview of the legislature and not this court to correct what is now well-settled public policy." Id.
Our holding today precludes recovery for Buckingham under a contract theory or an equitable theory. Because of this, we need not address Buckingham's arguments concerning sufficiency of the evidence to support the trial court's decision.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601459/ | 869 So.2d 313 (2004)
Donna M. PHILLIPS
v.
DIOCESE OF LAFAYETTE.
No. 03-1241.
Court of Appeal of Louisiana, Third Circuit.
March 24, 2004.
*314 Christopher R. Philipp, Lafayette, LA, for Plaintiff/Appellee: Donna M. Phillips.
Eric J. Waltner, Allen & Gooch, Lafayette, LA, for Defendant/Appellant: Diocese of Lafayette.
Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
SULLIVAN, Judge.
In this workers' compensation case, the Diocese of Lafayette (the Diocese) appeals a judgment in favor of Donna Phillips rejecting its claim for forfeiture of benefits under La.R.S. 23:1208 and awarding Ms. Phillips penalties and attorney fees for a one-year delay in approving psychotherapy and biofeedback sessions recommended by her treating psychiatrist. Ms. Phillips has answered the appeal, seeking an additional penalty, as well as additional attorney fees for defending this appeal. We affirm and amend as follows.
Factual and Procedural Background
Ms. Phillips was injured on October 11, 1997, as she lifted two food trays while working in a school cafeteria. She was initially treated by Dr. Stanley Foster, an orthopedic surgeon, for pain in her neck and between her shoulder blades that radiated to the left hand and lower back. A cervical MRI indicated degenerative changes at C4-5, C5-6, and C6-7 that Dr. Foster related to some of her pain, as well as a small herniation at C6-7 that caused some compression of the thecal sac, but did not require surgery at that time. In May of 1998, Dr. Foster referred Ms. Phillips to a physiatrist, Dr. Thomas Laborde, who treated her with medication and steroid injections through July of 2002 for chronic pain, diffuse tenderness, and intermittent spasm and trigger points. During the course of his treatment, Dr. Laborde referred Ms. Phillips to a psychologist, Dr. *315 Jimmie Cole, and to a psychiatrist, Dr. Charles Bramlet.
Ms. Phillips had also been evaluated by Dr. John Cobb, an orthopedic surgeon. After reviewing the cervical MRI and a thoracic MRI that showed spondylosis from T6 through T9, Dr. Cobb recommended a cervical fusion and thoracic injections, with a possible thoracic fusion from T6 through T9, should her pain in that area become unacceptable. Dr. Thomas Montgomery, another orthopedic surgeon, did not recommend surgery, as he found no evidence of a compressive neuropathy. The Office of Workers' Compensation (OWC) then ordered an examination by a third orthopedic surgeon, Dr. Angela Mayeux.[1] Dr. Mayeux saw no need for thoracic surgery, and she believed that the cervical procedure recommended by Dr. Cobb would have only a 50% chance of improving Ms. Phillips' symptoms.
The Diocese disputed certain aspects of Ms. Phillips' claim, which resulted in a judgment of March 16, 2001, recognizing her entitlement to supplemental earnings benefits (SEB) at a zero-earnings rate and declaring the reasonableness and medical necessity of the surgical procedure recommended by Cobb. Ms. Phillips never underwent that procedure, but she continued treatment for pain management with Dr. Laborde and Dr. Bramlet.
Dr. Bramlet first saw Ms. Phillips in January of 2001, when she reported a high level of cervical and lower back pain, which significantly limited her physical abilities, and a significant amount of depression and anxiety symptoms, including the loss of interest in pleasurable activities, crying spells, and problems with memory and concentration. Although Dr. Bramlet noted that Ms. Phillips was "a little dramatic with her presentation and detail," he concluded that she met the criteria for chronic cervical and lower back pain, with some radiculopathy and a myofascial component. He also concluded that she exhibited an "anxiety disorder ... chronic in nature from trying to learn to deal with changes that goes [sic] along with dealing with this type of injury." To improve her chances of returning to gainful employment, Dr. Bramlet believed it was necessary to be "extremely aggressive with her treatment" and to "really manage her psychological factors." He proposed several medication changes, as well as ten individual therapy sessions and five biofeedback training sessions.
On February 5, 2001, the Diocese's managed care company denied Dr. Bramlet's request for continued psychotherapy as not "reasonable or necessary for this claimant's soft tissue injury." This denial was affirmed on February 28, 2001 and again on July 19, 2001, with the notation that "it is not reasonable to assume that a soft tissue injury could have precipitated a major psychiatric illness." In the meantime, Dr. Bramlet, who continued to see Ms. Phillips for medication management, believed that she had decompensated since her initial visit, leading him to recommend a more intensive nine-week, half-day program to deal with the worsening of her condition caused by the delay in treatment.
On September 26, 2001, Dr. James Anderson, also a psychiatrist, examined Ms. Phillips at the Diocese's request. Ms. Phillips reported that she experiences tightness in her neck that makes it hard to turn her head, aching under the shoulder blades, and pain around the mid-back and chest that "paralyzes" her. She stated that she is in pain almost every day and that if she did not take her pain medication *316 she would be hurting all the time. Dr. Anderson noted that her MMPI-2 clinical profile, indicating neurotic tendencies, was valid. He further stated that standardized testing supported his clinical impression that a major component of Ms. Phillips' pain is related to psychological issues and functional in origin. He believed that she could benefit from continued psychiatric treatment, including biofeedback, but he considered her a poor candidate for surgical intervention to relieve her pain.
When the Diocese did not provide the requested medical treatment after receiving Dr. Anderson's report, Ms. Phillips filed this disputed claim for medical benefits, penalties, and attorney fees on January 25, 2002. A mediation conference was held on March 19, 2002, after which the Diocese agreed to approve the requested treatment, but still contested the issues of penalties and attorney fees. On May 9, 2002, the Diocese asserted a claim for forfeiture of benefits based upon video surveillance that allegedly "chronicles her ability to move in normal fashion and free of pain."
After a trial, the workers' compensation judge (WCJ) rejected the Diocese's forfeiture defense. Although the WCJ noted that the surveillance was "somewhat at odds with Ms. Phillips' dramatic complaints," the WCJ found that this disparity did not warrant a finding of fraud, given corroboration at trial from Ms. Phillips' neighbors and Ms. Phillips' credible explanations for her conduct. The WCJ also concluded that the severity of Ms. Phillips' complaints to her physicians was based upon unintentional exaggeration or neurotic tendencies as identified by Dr. Anderson in the MMPI-2 profile, rather than wilful misrepresentation. In awarding penalties of $2,000 and attorney fees of $5,000, the WCJ concluded that the Diocese could not rely on surveillance obtained in July of 2001 to reasonably controvert a claim for medical benefits that it initially denied in February of 2001.
Forfeiture of Benefits
In its first assignment of error, the Diocese argues that the WCJ erred in finding that it did not meet its burden of proving that Ms. Phillips violated La.R.S. 23:1208. That statute, in part, provides:
A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
....
E. Any employee violating this Section shall, upon determination by workers' compensation judge, forfeit any right to compensation benefits under this Chapter.
(Emphasis added.)
In Flintroy v. Scott Cummins Salvage, 36,857, p. 12 (La.App. 2 Cir. 3/10/03), 839 So.2d 1231, 1238, writ denied, 03-1068 (La.6/6/03), 845 So.2d 1093 (citations omitted), the court explained the application of La.R.S. 23:1208 as follows:
La.R.S. 23:1208 authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. The statute applies to any false statement or misrepresentation made willfully by a claimant for the purpose of obtaining benefits. All of these requirements must be present before a claimant can be penalized. Because this statute is penal in nature, it must be strictly construed, both in its substantive ambit and in its penalty provisions.
*317 Concerning the standard of appellate review of a forfeiture claim, the court in Rowan Cos., Inc. v. Powell, 02-1894, 02-1895, p. 6 (La.App. 1 Cir. 7/2/03), 858 So.2d 676, 680, writ denied, 03-2177 (La.11/14/03), 858 So.2d 425 (citations omitted), stated:
The determination of whether there is a false statement or representation willfully made for the purpose of obtaining any benefit or payment involves inherently factual determinations and, thus, this court's review of those findings by the WCJ is governed by the manifest error standard. Under that standard of review, this court may only reverse the WCJ's decision if we find (1) there is no reasonable factual basis for the finding in the record and (2) the finding is clearly wrong or manifestly erroneous.
The Diocese contends that video surveillance of Ms. Phillips contradicts statements that she made in her deposition and to her doctors concerning her gardening activities and the severity of her complaints. In her deposition, taken in April of 2002, Ms. Phillips admitted that she "piddles" with her flowers, including "pull[ing] weeds and stuff," but she denied that she moves her window flower boxes around because, even though she can, she is "going to be hurting" or is "going to pay for it." On the surveillance tapes obtained in July of 2001, however, Ms. Phillips is shown stepping through a large window several times onto her porch, where she moved two window boxes. At trial, Ms. Phillips testified that she had forgotten about that incident, explaining that she was moving the window boxes so that a neighbor could water her flowers while she was out of town.
In her deposition, Ms. Phillips described pain in her neck that restricts her ability to turn her head while driving; numbness in her hands, fingers, and feet; pain in both arms, worse on the left; and a heaviness in her legs that prevents her from walking at times. In July of 2001, about the time of the first surveillance taken, Ms. Phillips reported to Dr. Cobb that she was not improving and that the pain at times was so unbearable that she had to go to bed. During her individual therapy sessions in March of 2002, she reported to Dr. Bramlet's nurse that she was overwhelmed by her chronic pain, which interferes with doing what she wants to do. In those sessions, she was tearful at times, reporting numerous symptoms of depression, including a low energy level, lack of sleep, low self-esteem, and social isolation. The Diocese argues that these complaints are inconsistent with the activities shown on the July 2001 surveillance tape, as well as surveillance obtained in January and February of 2002. In the later videos, Ms. Phillips is seen bending forward while rolling down a vehicle's windows and while picking up something from the ground, walking up and down stairs, entering and exiting the passenger side of a vehicle, and covering the plants on her porch with a plastic bag.
The WCJ considered Ms. Phillips statement in her deposition that she had not moved her window boxes to be a "clear `misrepresentation'" in light of the surveillance taken in July of 2001, but she found that it did not amount to fraud. "After establishing that a claimant has made a false statement or misrepresentation... the [WCJ] must make a factual determination as to whether, based on the record, the statement was willfully made specifically to obtain benefits, and thus defraud the workers' compensation system." Harris v. Christus St. Patrick Hosp., 02-1502, p. 6 (La.App. 3 Cir. 10/22/03), 857 So.2d 1278, 1283, writ denied, 03-3193 (La.2/13/04), 867 So.2d 697 (quoting Marler v. New Orleans Area *318 Council, Boy Scouts of Am., 01-1167, pp. 7-8 (La.App. 5 Cir. 3/13/02), 815 So.2d 131, 135) (second alteration in original). In the present case, the WCJ apparently accepted Ms. Phillips' explanation that she had forgotten about that occasion in July, in which she moved the window boxes so that a neighbor could water the flowers while she was out of town. We find no error in this credibility determination, given the corroboration of Ms. Phillips' explanation at trial. In the video, Ms. Phillips is seen moving the window boxes from an area that is only accessible from inside her apartment toward a common porch area, which is consistent with her explanation that she moved them so that a neighbor could water them while she was away. Jackie Cormier, who lives in the same complex as Ms. Phillips, testified that she has seen Ms. Phillips tend to her flowers through her window only once, just before Ms. Phillips left town at the beginning of August 2001. Ms. Cormier also testified that she and other neighbors have moved Ms. Phillips' large plants for her.
The WCJ next considered what she termed an "ambiguous `misrepresentation,'" in that Ms. Phillips activities on the tapes were "somewhat at odds" with her dramatic complaints to her doctors. However, the WCJ again found that Ms. Phillips' did not commit fraud, considering that Dr. Anderson reported that her MMPI-2 profile includes "neurotic" tendencies and that Ms. Phillips exhibited some movements on the tapes that were "consistent with pain, age or deconditioning[.]" Again, we find no error. First, we note that the surveillance tapes do not appear to show Ms. Phillips performing activities that are inconsistent with the sedentary to light duty restrictions placed on her by her doctors. We next point out that some of Ms. Phillips' complaints were corroborated by lay testimony at trial. Lisa Istre, who lived next door to Ms. Phillips from July of 1997 through October of 2000, testified that she has helped Ms. Phillips with her heavy housecleaning, including moving the large plants, cleaning the carpets, and mopping. Ms. Istre testified that she has seen Ms. Phillips grab her neck in pain and complain about picking up a bag of sugar. According to Ms. Istre, Ms. Phillips seems more mobile at some times, but worse at others. Ms. Cormier testified that Ms. Phillips calls her whenever she needs help. She has rearranged Ms. Phillips' furniture and has moved her large plants. In her observation, Ms. Phillips has become worse since their first meeting in March of 2001. Although Ms. Cormier testified that she has seen Ms. Phillips tend to her flowers, she also stated that Ms. Phillips can only do so for about an hour and that pain is evident on her face when she is done.
In Bergeron v. Cajun Kwik Mart, Inc., 03-675, pp. 3-4 (La.App. 3 Cir. 11/5/03), 858 So.2d 748, 750, this court refused to disturb the WCJ's rejection of a forfeiture defense, stating: "While there is some discrepancy between [the plaintiff's] testimony and what is depicted on the surveillance video, we, as did the [WCJ], find that these discrepancies do not equate to fraud, but rather reflect on the extent of her disability." Similarly, in Palmer v. Schooner Petroleum Services, 02-397 (La.App. 3 Cir. 12/27/02), 834 So.2d 642, writ denied, 03-367 (La.4/21/03), 841 So.2d 802, we found that variances between the plaintiff's testimony and video surveillance of his activities did not support a finding of fraud, where the plaintiff testified that he has good days and bad days and that he suffers great pain when he exceeds his physical limitations, and where the video showed him walking slowly and tentatively, supporting his claim that he could not walk, stoop, or bend for extended periods of time. In the present case, we find no *319 error in the determination that Ms. Phillips did not commit fraud, given the WCJ's credibility determinations; the corroboration, both lay and medical, of her complaints; and the videotapes themselves, which do not depict Ms. Phillips performing activities beyond her physical restrictions.
Penalties and Attorney Fees
In its second assignment of error, the Diocese argues that the WCJ erred in imposing penalties and attorney fees, given its reliance on the utilization review process in denying the claim and the video surveillance that supported its forfeiture defense. The WCJ imposed these sanctions after determining that the Diocese could not rely on the subsequently-obtained surveillance to justify its failure to approve psychotherapy and biofeedback within sixty days of their request and that the utilization review process was insufficient to reasonably controvert the claim. We find no error.
In Harrington v. Coastal Construction & Engineering, 96-681, p. 3 (La.App. 3 Cir. 12/11/96), 685 So.2d 457, 459, writ denied, 97-109 (La.3/7/97), 689 So.2d 1375, we stated that "the employer must rely on competent medical advice when the decision to deny the medical treatment is made." Accordingly, we held that the WCJ had erred in refusing to award penalties and attorney fees based upon the employer's decision to schedule an independent medical examination after it had already denied treatment. As we explained: "The determination is erroneous because it looks to actions taken after the denial of treatment to support the denial of treatment.... [T]he [WCJ] was erroneous in utilizing post-denial actions to support a finding that Coastal was not arbitrary and capricious." Id. at 459-60.
In Harrington, 685 So.2d at 460, we also addressed the reliance on utilization review to controvert a claim as follows:
In a letter dated November 10, 1995, and signed by a registered nurse, Harrington was informed that his request for physical therapy was denied based upon his "current medical status" and "the information obtained." In Dozier [v. Garan's, Inc., 94-1363 (La.App. 3 Cir. 4/5/95), 653 So.2d 137], this court held that simply producing a different opinion from a nurse and a doctor who had not examined the claimant did not, at that stage, reasonably controvert the claimant's entitlement to the disputed medical expenses. Dozier, 653 So.2d 137. Furthermore, this court found, in Ramsey v. Cash and Carry Foods, Inc., 95-544 (La.App. 3 Cir. 11/2/95), 664 So.2d 511, that a lone report of questionable basis does not constitute "competent medical advice." In the present case, Harrington's request for physical therapy was denied by a nurse who had not examined him, based upon information which is, at best, questionable. The denial letter does not state what the employer thought Harrington's "current medical status" to be, nor does it state what "information obtained" supported this decision. Based upon the jurisprudence established in Dozier and Ramsey, such evidence does not constitute "competent medical advice" sufficient to avoid the imposition of penalties and attorney fees.
In the present case, the request for psychotherapy and biofeedback was initially denied on February 5, 2001, after a managed care company determined that it was not "reasonably or necessary for this claimant's soft tissue injury." This decision was affirmed on February 28, 2001 and again on July 19, 2001, based upon a determination that "it is not reasonable to assume that a soft tissue injury could have *320 precipitated a major psychiatric illness." On July 25, 2001, Dr. Bramlet disputed this basis for denial, stating: "I am not suggesting that she has a major psychiatric illness. I am reporting that she has an adjustment disorder with both symptoms of depression and anxiety related to a chronic illness, such as a chronic pain disorder, which is clearly indicated from the history gathered from Mrs. Phillips that occurred in October of 1997." (We also note that Ms. Phillips' medical records, including two MRIs showing degeneration in three cervical discs and spondylosis at T6 through T9, indicate that she has more than a soft tissue injury.) The Diocese did not schedule an independent medical examination until September of 2001, six months after its initial denial of the claim, and that physician found that Ms. Phillips could benefit from the requested treatment. Additionally, the surveillance of Ms. Phillips did not take place until July of 2001. Based upon the above, we agree with the WCJ that the Diocese did not rely on competent medical advice or otherwise reasonably controvert the claim when it was denied in February of 2001. Accordingly, the imposition of penalties and attorney fees was not in error.
In her answer to the appeal, Ms. Phillips asks that we impose an additional penalty for the Diocese's refusal to approve the requested treatment after it received Dr. Anderson's report in October of 2001, indicating that psychotherapy and biofeedback would be beneficial to her. Although the supreme court concluded in Fontenot v. Reddell Vidrine Water District, 02-439, 02-442, 02-478 (La.1/14/03), 836 So.2d 14, that multiple penalties are recoverable under La.R.S. 23:1201, we find that a second penalty is not appropriate in this case. As the WCJ noted in her reasons for judgment, "[t]he videotaped surveillance would have constituted a reasonable controversion of Ms. Phillips' request for Dr. Bramlet's recommended treatment had those tapes been `in hand' six months or so previous to when they were obtained." However, the Diocese did have that surveillance by the time it received Dr. Anderson's report. We agree with the WCJ that the surveillance sufficiently controverted the claim, notwithstanding Dr. Anderson's report. We, therefore, decline to award a second penalty for the denial of Dr. Bramlet's recommended treatment.
In her answer, Ms. Phillips also requests additional attorney fees for work performed on appeal. In Stacks v. Mayflower Transit, Inc., 95-693 (La.App. 3 Cir. 11/2/95), 664 So.2d 566, we held that an appellee who successfully defends a trial court judgment should not be denied additional attorney fees on appeal, even when the relief sought in his answer is denied. In the present case, Ms. Phillips successfully defended the judgment of the OWC in her favor. We, therefore, award her $2,000 in additional attorney fees.
Decree
For the above reasons the judgment of the Office of Workers' Compensation is amended to award Plaintiff, Donna Phillips, additional attorney fees of $2,000. In all other respects, the judgment is affirmed. Costs of this appeal are assessed to Defendant, the Diocese of Lafayette.
AFFIRMED AS AMENDED.
NOTES
[1] Dr. Mayeux's report and deposition are not in the record before us, but a summary of their contents is contained in Dr. Anderson's records. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601384/ | 1 So. 3d 174 (2009)
ALVAREZ
v.
STATE.
No. 1D07-5875.
District Court of Appeal of Florida, First District.
January 22, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601382/ | 391 So. 2d 1116 (1980)
STATE of Louisiana
v.
Raymond DUPLESSIS.
No. 65903.
Supreme Court of Louisiana.
October 6, 1980.
Rehearing Denied November 10, 1980.
Dissenting Opinion December 16, 1980.
*1117 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Sheila C. Myers, Victor Ortiz, James Kevin McNary, Asst. Dist. Attys., for plaintiff-appellee.
Orleans Indigent Defender Program, Paul Katz, Clyde Merritt, New Orleans, for defendant-appellant.
DIXON, Chief Justice.
Early in the morning of May 18, 1979, New Orleans city police received an anonymous telephone call stating that a tall black male wearing cream colored pants and holding a brown leather case was carrying a concealed weapon. The suspect was said to be in the vicinity of the 1400 block of North Claiborne Avenue. This information was broadcast on the police radio. Two officers of the city police proceeded to the designated location and observed the defendant, who matched the given description. They approached the defendant, told him of the report they had received, and advised him that he was under investigation. They then asked the defendant what he had in the leather pouch clutched under his arm. According to the officers' uncontradicted testimony, the defendant handed over the bag, stating that he had just found it. An officer took the bag, felt the outline of a gun through the soft leather, and handed the bag to his partner, who opened it. The defendant was then arrested.
The defendant was charged with violating R.S. 14:95.1, possession of a concealed weapon by a convicted felon. Following the trial court's denial of a motion to suppress the introduction of the gun into evidence, the defendant pleaded guilty to the offense, reserving this appeal on the denial of the motion to suppress. On appeal, the defendant argues that an anonymous tip cannot justify a police-created "street encounter," and that evidence seized as a result of an illegal investigatory stop should be excluded from evidence.
Although one officer conducted a frisk of the defendant, the record indicates that the frisk was made after the defendant relinquished the bag. It is clear that the gun was not seized as a result of a "stop and frisk." See Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). However, the defendant contends that the police were without legal justification in creating the initial encounter, and that the evidence could not have been discovered in the absence of such an encounter. In short, the defendant claims that the police violated his "right to be let alone." State v. Saia, 302 So. 2d 869 (La.1974).
The Fourth Amendment of the United States Constitution and Article 1 § 5 of the Louisiana Constitution protect citizens from unreasonable searches and seizures. Implicit within this protection is a legal restraint upon the police from approaching citizens "under circumstances that make it seem that some form of detention is imminent unless they have probable cause to arrest the individual or reasonable grounds to detain the individual." State v. Saia, supra, at 873. However, the police do have the right to engage anyone in conversation, even without reasonable grounds to believe that they have committed a crime. State v. Neyrey, 383 So. 2d 1222 (La.1979); State v. Shy, 373 So. 2d 145 (La.1979); State *1118 v. Brown, 370 So. 2d 547 (La.1979) (Dixon, J. concurring). Restraints are imposed upon police conduct only when the police attempt to encounter or detain a citizen against his will. As the court stated in Terry v. Ohio, supra:
"... It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person. ..." 392 U.S. at 16, 88 S.Ct. at 1877. 20 L.Ed.2d at 903. (Emphasis added).
The mere incident of a police officer encountering an individual in a public place does not, in and of itself, restrain that individual's "freedom to walk away." The police in this case parked their car ten feet away from where the defendant was standing and approached him on foot. They had done little more than explain their purpose when the defendant gave them the bag. These circumstances, as distinguished from the method used by the police in State v. Chopin, 372 So. 2d 1222 (La.1979), do not indicate that "some form of official detention was imminent."
Even if the officers in the present case did not have reasonable grounds to accost the defendant in an initial encounter, it is essential to inquire whether the officers' actions "infringed upon the defendant's right to be left alone." State v. Ryan, 358 So. 2d 1274, 1275 (La.1978). If the defendant voluntarily gave up the bag before the police intruded upon his right to be free from unjustified governmental interference, the gun can properly be admitted into evidence. This is similar to the case in which a person abandons property prior to any unlawful intrusion by the police. See State v. Chopin, supra; State v. Ryan, supra. In the instant case, the defendant was told that "if he'd done nothing wrong, then he could just go about his business." When asked what he had in the bag he was holding, the defendant voluntarily handed it over. Had the defendant chosen to keep possession of the bag, or to remain silent, the issues in this case would be entirely different. If the police had seized the bag from the defendant without his consent, the question to be addressed would be whether such a search and seizure was based on probable cause or other reasonable grounds. C.Cr.P. 215.1; State v. Davis, 383 So. 2d 1005 (La.1980); State v. Bolden, 380 So. 2d 40 (La.1980); State v. Jernigan, 377 So. 2d 1222 (La.1979). The defendant foreclosed any evaluation of these issues by voluntarily cooperating with the police. The record does not indicate that the defendant was coerced into doing so. The record does indicate that the defendant chose to relinquish the bag, apparently in an attempt to create the appearance of innocence, since he simultaneously made an exculpatory remark. It was this misguided ploy that resulted in the discovery of the evidence, rather than any forcible intrusion by the police.
We reiterate that no one is required to stop or to answer questions posed by police under circumstances in which the Fourth Amendment protections are operative. However, when one who is suspected of a crime voluntarily complies with a police request, to his own detriment, he cannot reclaim the rights which he has waived.
The conviction and sentence are affirmed.
MARCUS, J., concurs and assigns reasons.
DENNIS, J., dissents with reasons.
MARCUS, Justice (concurring).
The information provided by the unidentified caller, combined with independent police corroboration, provided reasonable cause for the officers to investigate the report of a concealed weapon by approaching the defendant. Hence, the initial detention of defendant was justified. State v. Davis, 383 So. 2d 1005 (La.1980); State v. Bolden, 380 So. 2d 40 (La.1980); State v. Jernigan, 377 So. 2d 1222 (La.1979). I agree with the majority's finding that defendant voluntarily complied with the officers' request to hand over the bag containing the gun. Accordingly, I respectfully concur.
DENNIS, Justice, dissenting.
When the police officers approached and stopped Duplessis, a seizure for Fourth *1119 Amendment purposes occurred because a reasonable person in defendant's position would have believed that he was not free to leave. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980) (opinion of Justice Stewart) and 100 S.Ct. at 1880 n.1 (opinion of Justice Powell). Further, the officers did not have enough trustworthy information to warrant such a stop. See Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). I continue to adhere to the view I expressed in my dissent in State v. Jernigan, 377 So. 2d 1222 (La.1979), that an anonymous tip alone cannot supply reasonable cause to justify an intrusion on a person's liberty.
Therefore, I respectfully dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601388/ | 379 N.W.2d 615 (1985)
John D. LARSON, et al., Appellants,
v.
ANDERSON, TAUNTON & WALSH, INC., d.b.a. Tom & Bill's Skylark Red Owl, Respondents.
No. C3-85-562.
Court of Appeals of Minnesota.
December 31, 1985.
Review Denied March 14, 1986.
*617 Juan A. Alsace, Montevideo, for appellants.
Joe E. Thompson, Willmar, for respondents.
Heard, considered, and decided by RANDALL, P.J., and PARKER and SEDGWICK, JJ.
OPINION
RANDALL, Judge.
Appellants, John and Nanette Larson, sued respondent, Red Owl, for personal injuries caused when a Red Owl truck driven by Red Owl's employee, Paul Adams, tipped over during a windstorm and collided with appellants' car. Adams was killed and the appellants sustained personal injuries. Red Owl counterclaimed for property damage, but later dismissed its counterclaim.
The case was tried to a jury, which found neither party at fault. On appeal appellants argue that numerous evidentiary errors by the trial court justify reversal of the trial court's post-trial order denying appellants' motion for a new trial. We affirm.
FACTS
The accident occurred on September 12, 1982. Appellants were westbound on Highway 7, traveling from Minneapolis to Montevideo. John Larson was driving and his wife Nanette was a passenger. It was raining and stormy. At the intersection of Highway 7 and Township Road 55 in Carver County, appellant saw respondents' semi tractor-trailer fishtail from the eastbound lane and swing four to five feet into the westbound lane.
Appellant slowed down as he approached the semi. The semi again fishtailed, tipped, and slid on its side into the westbound lane. Appellant slowed, applied his brakes, but was unable to stop in time to avoid colliding with the semi. The parties disagree as to who hit whom.
The semi driver, Adams, was killed. Mrs. Larson was cut above her left eye, received a puncture wound in her arm, and suffered a bump on her head. Mr. Larson's forehead was cut and he now has a scar. His arms were bruised. The Larsons sued respondents for personal injury.
At trial respondents' expert, meteorologist Bruce Watson, testified that on the day of the accident thunderstorms were present in the area, together with rotational winds of 90 miles per hour, constituting a "mini tornado."
Over appellants' objection, Adrid Hagberg's deposition was read into the record. Hagberg, 81 years old, was a passenger in John Skalberg's car, which was behind appellants' car at the time of the accident.
Appellants' attorney informed respondents' attorney, several days before trial, that Hagberg was moving to Arizona and that his deposition would be read in place of live testimony. By agreement of the parties, Hagberg's deposition was read during presentation of appellants' case in chief. Appellant objected, based on lack of foundation, to admission of Hagberg's testimony that Adams could have done nothing to avoid the accident. The trial court overruled the objection.
Following the reading of Hagberg's deposition into the record, appellants moved for a mistrial based on their contention that Hagberg's opinion was prejudicial and a thinly disguised opinion on the ultimate fact question. Appellants raised the same objections to similar testimony by Skalberg and Trooper McGovern, the investigating officer.
Appellants objected to testimony of respondents' expert, Meteorologist Bruce Watson. Appellants attacked Watson's qualifications, claiming that since Watson had not been in the area the day of the accident, his testimony lacked proper foundation. *618 They further objected to Watson's relying solely on meteorological reports as the basis for his testimony.
The trial court refused to admit testimony by appellants' expert, Harold B. Clayton, a certified director of trucking safety, that the accident was avoidable and that Adams could have done specific things to prevent the accident. The trial court also sustained objections to appellants' attempts to elicit Clayton's reconstruction of the accident. Clayton was allowed to testify to other matters, including safety procedures involving large trucks.
At the close of respondents' case, appellant moved for directed verdict on the question of Mr. Larson's negligence. The court denied the motion and submitted Larson's comparative negligence to the jury.
ISSUES
1. Did the trial court err in admitting the deposition of a witness who was unavailable for trial?
2. Did the trial court err in admitting lay opinion testimony of respondents' witnesses on the issue of avoidability?
3. Did the trial court err in admitting testimony of respondents' expert witness?
4. Did the trial court err in excluding testimony of appellants' expert witness?
5. Did the trial court err in failing to grant appellants' motion for a directed verdict on Larson's contributory negligence?
6. Did the trial court err in denying appellants' summary judgment motion?
7. Was respondents' closing argument improper, warranting a new trial?
8. Did the trial court err in instructing the jury on the emergency rule?
9. Did the trial court err in refusing to grant a judgment notwithstanding the verdict?
ANALYSIS
I.
Deposition Testimony
Appellants claim there is a difference between a "discovery deposition" and a deposition done when a witness is unavailable for trial. They claim their original attorney conducted only a cursory deposition of Hagberg, assuming he could cross-examine Hagberg at trial to demonstrate Hagberg's limited ability to observe events.
Appellants cite no cases which accord different treatment to a "discovery deposition" as opposed to a deposition done to procure testimony of a witness unavailable for trial, absent an agreement by the parties to limit use of depositions to discovery and to mutually agree to produce their witnesses for live testimony.
Use of depositions at trial is governed by Minn.R.Civ.P. 32.01:
At the trial * * * any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, and subject to the provisions of Rule 32.02, may be used against any party who was present or represented at the taking of the deposition * * *
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(b) that the witness is at a distance greater than 100 miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition.
Appellants do not allege that respondents procured Hagberg's absence. Moreover, appellants exercised their right to object to admission of the deposition testimony, allowed under Minn.R.Civ.P. 32.02, which states:
Subject to the provisions of Rules 28.02 and 32.04(3), objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of evidence if the witness were then present and testifying.
Appellants argue that, under Krech v. Erdman, 305 Minn. 215, 217-218, 233 *619 N.W.2d 555, 557 (1975), respondents have a duty to apprise appellants of changes in circumstances which make it necessary to call witnesses. Krech deals with suppression of testimony of expert witnesses not disclosed prior to trial and is not applicable here.
Appellants also cite Reikow v. Bituminous Construction Co., Inc., 302 Minn. 316, 224 N.W.2d 921 (1974). In Reikow, plaintiff subpoenaed a witness whom defendant wished to question. Plaintiff did not need the witness' testimony and discharged him. Defendants had not subpoenaed the witness. The court held that although counsel has a duty to make witnesses available for trial, if defendants had wanted this witness' testimony, they should have subpoenaed him. Appellants did not subpoena Hagberg. Hagberg was legitimately an out-of-state witness at the time of the trial, and it was not error for the court to allow the use of his deposition at trial.
II.
Lay opinion evidence
Appellants' claim allowing Hagberg's and Skalberg's testimony that Adams could not have avoided the accident was prejudicial to their case and lacked foundation. Appellants also claim that the lay opinion was an inadmissible "thinly disguised legal opinion" embracing the ultimate issue, Adams' negligence.
Evidentiary rulings are within the sound discretion of the trial court. McGuire v. C. & L. Restaurant, Inc. 346 N.W.2d 605, 615 (Minn.1984) (citations omitted), Lines v. Ryan, 272 N.W.2d 896, 902 (Minn.1978) (citations omitted).
Admission of lay opinion testimony is governed by Minn.R.Evid. 701 and 704. Rule 701 states:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
Moreover, "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Minn.R.Evid. 704.
The trial court, in its post-trial memorandum, noted that Hagberg's and Skalberg's testimony was helpful to the jury because the men were eyewitnesses to the accident and their testimony was based on first-hand knowledge. The court noted that the witnesses did not give a legal conclusion, each merely testified that, based on their experience, Adams could have done nothing to avoid the accident. The testimony of the two witnesses as to what they perceived is clearly admissible, and appellant does not challenge their perceptions, just their conclusion that the accident was unavoidable. The admission of this conclusion is questionable, but once the trial court in its discretion determined that their opinion was rationally based on a perception, we do not find reversible error as a matter of law. The opinions of the two lay witnesses, although loose, fit under Rules 701 and 704.
Appellants also dispute respondents' claim that Hagberg was an eyewitness to the accident. They claim Hagberg was looking at the trailer, not the cab, when the accident occurred. Appellant's objection goes to weight, not admissibility.
III.
Expert opinion testimony
Trooper McGovern, the investigating officer and an accident reconstruction expert, testified over appellants' objection that "the truck was tossed to its side by a strong crosswind and slid out of control down the oncoming lane." Appellants claim this is an inadmissible opinion as to who was at fault, the ultimate issue in this matter. Appellant cites Ramfjord v. Sullivan, 301 Minn. 238, 246, 222 N.W.2d 541, 546 (1974) for the proposition that "it is clearly erroneous to admit into evidence the opinion of an investigative officer as to *620 which party is at fault." While Ramfjord stands for this proposition, Trooper McGovern did not testify as to who was at fault. His testimony was his reconstruction of the accident based on his training and experience, and therefore admissible.
Appellants argue that McGovern's testimony lacked foundation and was hearsay because McGovern was not on the scene and had no personal knowledge of the accident, and was inadmissible because McGovern was never qualified as an expert.
A trial court has broad discretion with respect to the admission of an expert's opinion. Wohlfeil v. Murray Machinery, Inc., 344 N.W.2d 869, 875 (Minn.Ct.App. 1984). Objections based on foundation "are committed to the sound discretion of the trial judge and will only be the basis for reversal where that discretion has clearly been abused." Jenson v. Touche Ross & Co., 335 N.W.2d 720, 725 (Minn. 1983). Furthermore, it is not necessary that an expert personally observe how a person was injured for his testimony to be admissible. His testimony must be based on facts sufficient to form an adequate foundation for an opinion and he should not be allowed to speculate. Wohlfeil, 344 N.W.2d at 874-75.
Minn.R.Evid. 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
McGovern was appellants' witness and appellants, on direct examination, elicited from McGovern testimony on the cause of the accident. They cannot complain because respondents followed up on that line of inquiry during cross-examination. The trial court did not abuse its discretion in admitting his testimony.
Meteorologist Watson was qualified as an expert. Appellants claim Watson's testimony lacked foundation because he was not present at the time of the accident. The trial court, within its discretion, found Watson qualified as an expert witness. Moreover, respondent had the opportunity to test Watson's credibility by cross-examination. See Minn.R.Evid. 705.
Appellants complain that Watson gave a different description of the weather that day than did farmers living in the area and that Watson did not view the storm first hand. Watson's testimony included interpretation of weather charts and maps.
Appellants challenge each of Watson's factual statements as contradicted by other witnesses. Appellants' criticism of Watson's testimony goes to weight, not admissibility. The court did not err in admitting this expert's testimony.
IV.
Appellants' Expert Witness
Through the testimony of safety expert Harry Clayton appellants attempted to rebut respondents' `act of God' defense. According to appellant, Clayton would have testified on ways Adams could have avoided the accident. He also would have given accident reconstruction testimony.
Clayton was qualified as a safety expert but not as an accident reconstruction expert. The trial court sustained respondents' objections to any opinion by Clayton both on what Adams could have done to avoid the accident and on how the accident happened, ruling Clayton was unqualified to render an opinion concerning reconstruction of the accident and its causes. Clayton's testimony was limited to safety matters within the scope of his qualifications as a safety expert.
The question of sufficiency of foundation for opinion evidence is a matter within the sound discretion of the trial court. Koehnle v. M.W. Ettinger, Inc., 353 N.W.2d 612, 615 (Minn.Ct.App.1984). "The determination of whether a witness is sufficiently qualified to testify as an expert is left to the sound discretion of the trial court, whose ruling will not be reversed unless it is based on an erroneous view of *621 the law or is clearly not justified by the evidence." DeRemer v. Pacific Intermountain Express Co., 353 N.W.2d 694, 698 (Minn.Ct.App.1984) (citation omitted).
Here, where the court found that appellant's expert was not qualified as an accident reconstruction expert, we cannot say that the trial court abused its discretion in refusing to admit his testimony on how the accident might have happened. Because the trial court allowed into evidence opinions by respondents' lay witnesses on avoidability, the better practice here would be for the court to also be liberal with appellants' expert, but given the discretion of a trial court on evidentiary matters, we cannot say the court committed reversible error in partially restricting the scope of Clayton's testimony.
Appellants argue that the evidence should have been admitted under the doctrine of "curative admissibility" citing McNab v. Jeppesen, 258 Minn. 15, 102 N.W.2d 709 (1960) and Busch v. Busch Construction, Inc., 262 N.W.2d 377 (Minn. 1977). The doctrine was recently reaffirmed by this court:
In order to be entitled as a matter of right to present rebutting evidence on an evidentiary fact: (a) the original evidence must be inadmissible and prejudicial, (b) the rebuttal evidence must be similarly inadmissible, and (c) the rebuttal evidence must be limited to the same evidentiary fact as the original inadmissible evidence.
Danielson v. Hanford, 352 N.W.2d 758, 761 (Minn.Ct.App.1984) (quoting Busch, 262 N.W.2d at 387).
Appellants do not meet the initial threshold (a) since in this case the "original evidence" is the evidence presented by Hagberg, Skalberg and McGovern, all of which was not inadmissible but was ruled admissible by the trial court and that ruling upheld in this opinion.
Appellants argue that exclusion of Clayton's testimony, together with the other evidentiary errors appellants claim were committed by the trial court, entitle them to a new trial. "[B]efore an error in the exclusion of evidence may be grounds for a new trial, it must appear that such evidence might reasonably have changed the result of the trial if it had been admitted." Jenson, 335 N.W.2d at 725 (Minn.1983). We cannot say the trial court's refusal to admit part of Clayton's testimony was reversible error.
V.
Motion for Directed Verdict
Appellant John Larson claims that his motion for a directed verdict on his contributory negligence should have been granted as no evidence contradicted his testimony that he did everything he could to avoid the accident and that all evidence established that he was free of fault.
In a motion for a directed verdict the court must view the evidence as a whole in the light most favorable to the non-moving party. Such motions should be granted "only in those unequivocal cases where, in the light of the evidence as a whole, it would clearly be the duty of the trial court to set aside a contrary verdict as being manifestly against the entire evidence.
American Machine and Tool Co., v. Strite-Anderson Manufacturing, 353 N.W.2d 592, 598 (Minn.Ct.App.1984), pet. for rev. denied (Minn. Sept. 12, 1984) (citations omitted).
Although the issue was submitted to the jury and the jury found Larson free of fault, appellants claim they were prejudiced by being denied a directed verdict because the jury wasted time considering Mr. Larson's negligence and was "distracted" from considering Adams' negligence.
The jury found Mr. Larson free of fault. We see no error nor even minimal prejudice in submitting to a jury the contributory negligence of both drivers in an accident where each side presented conflicting expert and lay testimony on causation.
*622 VI.
Motion for Summary Judgment
Appellants moved for summary judgment claiming that, as a matter of law, respondents could not prove their "act of God" defense, and that, therefore, Adams was negligent. Minn.R.Civ.P. 56.03 states:
Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is not genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.
This court has held:
It is settled that a party who moves for summary judgment has the burden of proving the absence of any genuine issues of material fact, and that the non-moving party is entitled to the benefit of that view of the evidence most favorable to him.
Ritter v. Mortenson Co., 352 N.W.2d 110, 112 (Minn.Ct.App.1984).
The cause of the accident was a genuine issue of material fact and properly submitted for trial. The court properly denied the motion for summary judgment.
VII.
Jury Instructions
Appellants claim the court erred in instructing the jury on the emergency rule. The trial court instructed the jury as follows:
That a person confronted with an emergency through no negligence of his own who, in an attempt to avoid the danger, does not choose the best or the safest way, is not negligent.
Appellants claim this instruction is appropriate only when the defendant is free from negligence. They also claim the instruction is inconsistent with respondents' "act of God" defense.
The emergency rule does not contradict respondents' act of God defense, as appellants claim. Nor did the instruction require the court to determine, prior to submission of the case to the jury, that the respondent was not negligent. Determination of negligence was left to the jury.
The emergency rule instruction is appropriate "where the evidence would sustain a finding that one of the persons whose negligence will be submitted to the jury had been confronted with a sudden peril or emergency and acted under its stress." Byrns v. St. Louis County, 295 N.W.2d 517, 519 (Minn.1980).
Appellants do not argue that they were denied an instruction on their theory of the case. We find the emergency rule instruction within the trial court's discretion.
VI.
Closing Argument
Appellants argue that the following remarks made by respondent during closing argument were prejudicial and warrant a new trial:
"That God reached out of the sky on that day and said
`Paul, its your time to come.'"
"it wasn't (the Larson's) time. It was Paul's time."
"the accident happened because God said `It's time'"
"(the wind) caught him, it pushed him, it carried him, it killed him"
"(the wind) moved to meet Paul * * * (he)never suspected it * * * and was killed"
"Paul Adams met his destiny"
"that if young Paul Adams had had the chance to (move into the opposing lane or traffic), thank God he didn't"
Granting a new trial is a drastic remedy "and rests largely in the discretion of the trial court, but when serious misconduct appears and prejudice is shown, it is an abuse of discretion not to grant a new trial." Anderson v. Hawthorn Fuel Co., 201 Minn. 580, 584, 277 N.W. 259, 261 (1938). Here appellant failed to object to the respondents' remarks at trial and raised the objection for the first time in its *623 motion for a new trial. The court was within its discretion in denying appellants' motion.
IX.
Motion for a New Trial
Appellants argue that the jury's finding that Adams was not negligent was unjustified by the evidence and contrary to law. They argue that the evidence conclusively established Adams' negligence and that "act of God" is no defense to negligence. We disagree.
A motion for a new trial made upon the ground that the jury verdict is not supported by the evidence should be granted only in cases where the preponderance of the evidence clearly suggests jury mistake, improper motive, bias, or caprice.
Newmaster v. Mahmood, 361 N.W.2d 130 (Minn.Ct.App.1985) (citing Conover v. Northern States Power Co., 313 N.W.2d 397, 408 (Minn.1981)). There is sufficient evidence to support the jury's verdict and we will not disturb it on appeal.
DECISION
The trial court did not err in admitting the deposition of a witness who was unavailable for trial, in admitting lay opinion testimony of respondents' witnesses, in admitting testimony of respondents' expert, and refusing to admit testimony of appellants' expert.
The trial court did not err in failing to grant appellants' motion for a directed verdict on John Larson's contributory negligence, and did not err in denying appellant's summary judgment motion on Adam's negligence.
Appellant did not properly preserve for appeal his objections to respondents' closing argument. The trial court did not err in instructing the jury on the emergency rule, and the verdict is supported by the evidence.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922263/ | 897 A.2d 1200 (2006)
In the Matter of: I.A.C., Minor.
Appeal of: I.C., Mother.
In the Matter of: M.D.C., a Minor.
Appeal of: I.C., Natural Mother.
In the Matter of: M.C., a Minor.
Appeal of: I.C., Mother.
Superior Court of Pennsylvania.
Submitted November 30, 2005.
Filed April 10, 2006.
*1201 Robin D. Bleecher, Harrisburg, for appellant.
Myles A. Kaufmann, Hummelstown, Guardian Ad Litem, for I.C.A., M.D.C. and M.C., appellees.
Jason Kutulakis, Carlisle, for Dauphin County Children and Youth.
BEFORE: JOYCE, ORIE MELVIN and TAMILIA, JJ.
*1202 OPINION BY TAMILIA, J.:
¶ 1 Mother appeals from the March 4, 2005, Decree involuntarily terminating her parental rights to her three children, I.C., a female born May 31, 1993, and two males, Me.C., born September 23, 1994, and Mo.C., born August 19, 1997.[1] We affirm.
¶ 2 With regard only to the youngest child, Mo.C., mother contends the trial court erred by concluding appellee Dauphin County Social Services for Children and Youth, hereinafter "the Agency", (1) presented clear and convincing evidence to satisfy the requirements of 23 Pa.C.S.A. §§ 2511, Grounds for involuntary termination (a)(1), (2), (5) & (8); and, (2) made reasonable efforts toward unification.
¶ 3 The facts underlying the Agency's petition for involuntary termination follow. Docket No. 6336-2005, No. 1, Petition for Involuntary Termination of Parental Rights. As indicated above, the child in question, Mo.C., was born August 19, 1997; he lived with his mother, the appellant, and other siblings.[2] On November 12, 2003, appellant left Mo.C., age six, home alone at night while she purportedly went to do laundry. This fact was discovered when a sibling who was in foster care called the house and asked to speak to her mother at 9:30 in the evening. Mo.C. told his older sister he was home alone and was afraid, so she, along with her foster mother and an Agency worker, remained on the phone with Mo.C. until the appellant returned home. The Agency visited the home the following day, November 13, 2003, and spoke with appellant and the child, whom mother purportedly had kept home from school for the purpose of speaking with the social worker. Appellant stated the child knew how to get in touch with her if need be; mother had Mo.C. demonstrate to the Agency worker on the computer how to look up "contact information."
¶ 4 Five days later, allegedly upon the direction of the appellant, Mo.C. arrived at school with his four-year-old brother in tow. The children were neither wearing socks, nor had they been fed breakfast. When the school called appellant, she came to the school, but denied responsibility for the boys' actions and physical conditions, telling police that she had been sleeping when they left for school. The next day, the school called the Agency again, this time stating that Mo.C. had arrived at school on this winter's day, "without a shirt, underwear or socks[,]" and clearly had not had a bath or been fed that morning. Id. at 3. According to Mo.C., appellant again was sleeping when he left for school that morning. Mother blamed her excessive sleeping on the medication she was taking. On this same date, November 19, 2003, Mo.C. was placed in foster care, where he remains.
¶ 5 The Agency averred in its complaint that when it investigated appellant's home this day, it was in total disorder. "[T]he home appeared in complete disarray, having various hazards of lightbulbs laying on the floor, cleaning water out in the open, and clothing strewn through the first floor. A bloody diaper and sheet, as well as blood on the first floor were also found, which [appellant] later verified belonged to her, stating she had used the diaper as an emergency sanitary napkin." Id. A broken light bulb was on the floor where an infant child was crawling. Mother was arrested and charged with recklessly endangering her children.
*1203 ¶ 6 On December 29, 2003, Mo.C. was found dependent and placed in the legal custody of the Agency by Order dated January 6, 2004.[3] At the dispositional hearing, appellant was ordered to follow and complete the family service plan developed by the Agency, and a goal of reunification was ordered.[4] In the months that followed, however, despite the Agency's plan to reunite appellant with Mo.C., appellant failed to demonstrate any progress toward rectifying the issues that led to Mo.C.'s placement, and the goal was changed from reunification to adoption on October 19, 2004. On February 8, 2005, the Agency filed a petition for involuntary termination of appellant's parental rights, and after a detailed hearing, the Decree was entered. This appeal followed.
¶ 7 Mother avers that during the six months prior to the filing of the termination petition, she made great strides toward remedying the unsafe situations that led to Mo.C.'s placement; she kept her home clean and had sufficient food available. Appellant's brief at 9. Contrary to Agency testimony, appellant argues that during one of Mo.C.'s visits, she left him overnight with a friend, not a stranger, and the reason she refused to provide urine samples was because the demand for same was premised only upon a seven-year-old's statement that she slept too much. Id. at 10-11.
Contrary to the trial court's assessment, the evidence demonstrated that Mother, until her visits were curtailed, was making substantial strides toward achieving reunification with [Mo.C.]. And these efforts were being made up until approximately six weeks prior to the filing of the termination petition. Her inability to complete the plan in a time frame which accords with the American Safe Families Act ("ASFA") should not have been a decisive factor either. Her clinical depression [as the result of her mother's unexpected death in a car crash] played a role in her progress, most notably in the employment objective.
Id. at 12.
¶ 8 In conducting our review, we adhere to the following well-established legal principles:
In a proceeding to involuntarily terminate parental rights, the burden of proof is upon the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so.
In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super.2003) (citation omitted).
When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental *1204 rights, this Court must accord the hearing judge's decision the same deference that it would give to a jury verdict. We must employ a broad, comprehensive review of the record in order to determine whether the trial court's decision is supported by competent evidence.
In re B.L.W., 843 A.2d 380, 383 (Pa.Super.2004), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004), (citations omitted). If competent evidence supports the court's findings, we will affirm even if the record could also support the opposite result. In re Adoption of T.B.B., at 394.
¶ 9 In a termination proceeding, the focus is on the conduct of the parent. In re B.L.W., at 383. Paramount, however, is that adequate consideration be given to the needs and welfare of the child. In re J.I.R., 808 A.2d 934, 937 (Pa.Super.2002), appeal denied, 573 Pa. 672, 821 A.2d 587 (2003); see also 23 Pa.C.S.A. § 2511(b), Other considerations. In evaluating the needs and welfare of the child, the trial court must consider "whatever bonds may exist between the children and [the parent], as well as the emotional effect that termination will have upon the children." In re Adoption of A.C.H., 803 A.2d 224, 229 (Pa.Super.2002), quoting In re Adoption of A.M.R., 559 Pa. 422, 741 A.2d 666 (1999).
¶ 10 The Agency filed a petition to terminate appellant's parental rights to Mo.C. pursuant to Sections (a)(1), (2), (5) and (8) of 23 Pa.C.S.A. § 2511, Grounds for involuntary termination. In pertinent part, section 2511 provides:
The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
.....
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
.....
(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.
23 Pa.C.S.A. § 2511(a). We need only agree with the trial court's decision as to any one subsection of 23 Pa.C.S.A. § 2511(a) in order to affirm the termination of parental rights. In re B.L.W., at 384.
*1205 ¶ 11 At the March 4, 2005, termination of parental rights hearing, the court heard testimony from appellant, reunification practitioner Greg Seetoo, Agency counselor Judith Turnbaugh, and Agency placement caseworker, Hope Rohde. Mother began her testimony by addressing the removal of I.C. and Me.C. from her home. She explained that on April 24, 2002, she intentionally beat the children with a stick so that they would be removed from the home. Appellant alleged that she did so primarily because she was not getting any help from the Agency. N.T., 3/4/05 at 16, 22. "They told me that they could not help me and I needed to find ways of my own to resolve whatever we were going through [...] that services had been closed." Id. at 22. Appellant testified that after the two older children were removed, but before the November 19, 2003 incident with Mo.C., she was ordered to work toward the goal of reunification with the assistance of Keystone Intensive Outpatient Program. She admitted, however, that she cooperated only minimally, attending only 17 of 43 scheduled sessions. Id. at 39. Also toward the goal of reunification with the two older children, Keystone spent, to no avail, 14½ hours face-to-face, in-home time with appellant, and 22 hours coordinating services. Id. at 39-40.
¶ 12 As to the youngest of three children, Mo.C., he came into the Agency's care on November 19, 2003, and the petition for termination of appellant's parental rights with regard to him was filed almost 15 months later, on February 8, 2005. At the March 4, 2005, termination hearing, appellant admitted that Mo.C. was removed from the home on November 19, 2002, at age six, because, "[she] screwed up." Id. at 26. Appellant explained that she was taking medicine that made her drowsy (Celexa, an antidepressant), was sleeping 12 hours a day, and Mo.C. "was removed because basically he had been taking care of himself for about a week and a half." Id. at 26-27. Appellant also admitted that Mo.C. went to school, on November 18th and/or 19th, 2003, without adequate clothing and nourishment, and that her home was unsanitary. Id. at 27-28. She testified that on the afternoon the Agency representative came as a result of the school incident, she was awakened at about noon by a phone call; she explained that only a ringing phone could arouse her. Id. at 32. She stated she had used the bloody diaper lying on the floor to stop the menstrual flow that began unexpectedly during the night. Id. at 31. Appellant testified that she hadn't disposed of the diaper because she was busy taking care of her one-year-old's soaked diaper. Id. at 33-34.
¶ 13 The month following Mo.C.'s removal from the home, appellant began overnight and weekend visits with him, a critical step, appellant acknowledged, toward the goal of reunification. Nevertheless, appellant admitted that on December 14, 2004, she left Mo.C. with a friend whose last name she did not know.[5]Id. at 42, 43. On January 6, 2005, because of this incident and the fact appellant refused to provide a urine sample despite her history of marijuana use and the warning that her refusal could affect her visitation, appellant was advised that rather than unsupervised visits in the home, all further visits would be supervised and would be conducted at the local YWCA. Id. at 44-45, 58-60, 103. Incensed or perhaps frustrated *1206 by this turn of events, appellant testified she did not contact the YWCA to schedule those visits until February 7, 2005. Id. at 45. It was also at this point, appellant admitted, that she stopped seeing her therapist. Id. at 53.
¶ 14 The court next heard testimony by Gregory Seetoo, a reunification practitioner with Keystone Children and Family Services who assisted appellant with the reunification process two to three times per week, from July, 2004, until February 16, 2005, when she was discharged as a result of her inaccessibility (inability to maintain regular contact). Id. at 80-82. Seetoo explained his involvement with appellant as follows:
The focus of the service was to assist [appellant] in providing proper care and supervision for her children, ... focusing on her environment, improving the environment of her children, ensuring the educational and physical well-being of her children, assisting with opportunities for her children, positive recreational opportunities during weekend visits, as well as for [appellant] to her own basic needs including medical needs for herself, food needs, basic needs in the home, making sure there's food, shelter, heat, basic needs of the family; and assisting [appellant] in utilizing formal and informal resources in the community until those needs were met.
Id. at 82-83.
¶ 15 As for the home environment, Seetoo testified that during the time period he was involved with appellant, she did make some progress in keeping her home neat. Id. at 92. According to his testimony however, that was where appellant's cooperation with the reunification plan stalled. On December 4, 2004, when Seetoo stopped in to visit Mo.C. during a weekend visit, the child was not there and appellant stated she had left him with a friend.[6]Id. at 95-96. Seetoo explained that this was unacceptable, that the Agency did not know anything about this person (she was not an approved caregiver), and that the purpose of the visits was for her to "spend time with [Mo.C.], to demonstrate an ability to maintain his basic needs, maintain his safety." Id. at 97. Appellant rejected Seetoo's concerns and stated that his worries were self-serving.
¶ 16 Also during this time, Seetoo attempted, unsuccessfully, to help appellant develop a budget and secure consistent employment to meet that budget. Appellant's monthly income was $48, from a utility allowance, and her food stamps had been discontinued. Seetoo testified that between June, 2004 and the March, 2005, hearing, appellant did not maintain steady employment, despite his efforts to assist her. She had left the employ of the temporary agency Manpower, was unsuccessful obtaining any other temporary work through agencies, and did not pursue employment on her own. Id. at 86-91. According to Seetoo, appellant had no physical limitations that would have precluded her from working, and Keystone not only had physically transported appellant to certain potential employers, it had provided her with at least three months' bus passes to assist her search. Id. at 92, 101, 115-166. Keystone's concerted efforts to help appellant obtain and maintain employment were unsuccessful.
¶ 17 According to Seetoo, appellant's efforts to care for Mo.C. were likewise half-hearted and unsuccessful. When Seetoo visited the home on December 17, 2004, two weeks after the previously-discussed caregiver incident, seven-year-old Mo.C. told Seetoo his mother had slept most of the weekend and that he had to prepare his own meals. Id. at 98-99. This is the *1207 visit that prompted the request for a urine sample and the December 30, 2004, meeting, when appellant stated, "she wasn't sure as of that point if she wanted [the agency's] services to continue." Id. at 102. According to Seetoo, after that meeting, Keystone was unable to contact appellant; her cell phone had been turned off, and she did not return messages left on her home phone. Id. at 104. When Seetoo stopped by the house on January 21, 2005, appellant basically informed him that she no longer wanted Keystone's services. Id. at 104-105. Believing appellant may just have been "having a bad day," Seetoo testified he continued unsuccessfully to attempt to contact appellant for the next month. Seetoo summarized for the court that he spent 70 hours face-to-face time with appellant, as well as time spent with other agencies and potential employers. Id. at 107.
¶ 18 The next witness at the termination hearing was Judith Turnbaugh, an employee of Dauphin County Children and Youth (the Agency), who worked with appellant bi-weekly from August 2003, three months prior to Mo.C.'s removal from the home, until August 2004. Id. at 120, 123. Turnbaugh repeated the concerns voiced in the Agency's termination petition regarding Mo.C. being left home alone and his having gone to school in November 2003, without being properly clothed or fed. Id. at 121. Turnbaugh, who was the case worker who visited the home after the school incident, testified only briefly about the condition of the home on that day: "[t]he house was in general disarray. The baby was on the floor crying. [Appellant] had recently been woken up through the phone calls by the school and ourselves." Id. at 122.
¶ 19 Hope Rohde, a placement caseworker for the Agency, testified next in support of the termination of appellant's parental rights. As to her connection with the child Mo.C., Rohde testified that by the time he was removed from the home, the goal for the two older children had been changed to adoption due to mother's failure to comply with the reunification plan; Mo.C.'s plan, instituted December 29, 2003, therefore was developed accordingly. Id. at 135. Mother was required (1) to continue participating in the parent education services offered by Keystone Reunification Services and the Community Action Commission related to child care and supervision; (2) to learn what to expect of seven-year-old Mo.C. and appropriately supervise him to as to assure his safety; (3) to develop coping strategies for stress; (4) to receive and utilize psychiatric and psychological services; (5) to be available for scheduled and unscheduled visits; and (6) to follow through with her probation officer. Id. at 136-137. Rohde testified that even before the November, 2003 incidents that prompted removal of Mo.C. from the home, the Agency was concerned with appellant's lack of employment and her inability or refusal to follow through with the service plan; the Agency feared for the children's safety and was concerned that appellant had no food in the house, and did not pay her utility bills. "[S]o we had great concern with regards to that and her inability to maintain her living." Id. at 143. The urine testing, Rohde testified, was requested as the result of evidence appellant was sleeping excessively and had a prior history of drug use. Id. at 144. Rohde explained, however, that appellant refused the Agency's multiple requests for a sample. Id. at 145. Lastly, Rohde testified that in February, 2005, when appellant was challenged about the fact that the Agency was unable to contact her, mother replied, "you'll just have to wait until I call you." Id. at 145.
¶ 20 As set forth above, § 2511(a)(5) allows for termination of a *1208 parent's rights provided the child in question has been out of the home for a period of at least six months, and the parent has, "evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties." Id. Mo.C. was removed from appellant's home on November 19, 2003, and the petition for termination was filed February 5, 2005, well beyond the six-month period required. The record before us establishes appellant, "has refused or failed to perform" her parental duties, as evidenced by the fact that the conditions that led to placement remain. As discovered through testimony, while appellant has made some effort to clean her home and obtain a psychiatric/psychological evaluation, she has done nothing else required by the reunification plan; most importantly she has not taken the steps necessary to assure Mo.C.'s safety and well-being when in her care. To the contrary she has demonstrated defiance and indifference to all efforts of assistance by the Agency and its associates, placing her needs and wants ahead of those of her children. See In the Interest of A.L.D., 797 A.2d 326, 337 (Pa.Super.2002) (concluding parental rights can be terminated not only due to parental incapacity, but also for acts of refusal); see also In re V.E. and J.E., 417 Pa.Super. 68, 611 A.2d 1267, 1271 (1992) (holding a parent must show a willingness to cooperate with CYS to obtain the rehabilitative services necessary to enable him or her to meet the duties and obligations inherent in parenthood).
¶ 21 At the time of the hearing, mother had been involved with the Agency for nine years, six of which were due to her inability to care for her children.[7] To date, appellant has made little affirmative effort to prove her ability to parent and regain custody of her children. As summarized by the court, "Mother has not made progress toward reunification or performance of her parental responsibilities." Trial Court Opinion, Hoover, J., 7/29/05, at 6. Further, a review of the record supports the conclusion that the Agency made more than reasonable efforts toward reunification. We find no basis upon which to disturb the trial court's rulings, and the court was justified in terminating appellant's parental rights as to Mo.C.[8]See In re B.L.W., supra (holding this Court need only agree with the trial court's decision as to any one subsection of 23 Pa.C.S.A. § 2511(a) in order to affirm the termination of parental rights).
¶ 22 Appellant also argues, "the trial court erred or abused its discretion when it granted C & Y's petition to terminate Mother's parental rights to I.C. [Me.C.], and [Mo.C.] given that the agency did not provide competent evidence to demonstrate clearly and convincingly that termination would serve the best interests of the children[,]" as is required by 2511(b), Other considerations.[9] Appellant's brief at 4. Appellant argues the Agency presented no evidence, other than hearsay testimony, concerning the bond or relationship that existed between her and the children.
¶ 23 Initially, we note that while "the best interests of the child" is the appropriate standard when applied at the time of an adoption proceeding, it is not *1209 the standard of review to be applied in termination of parental rights proceedings. In re Adoption of A.M.B., 812 A.2d 659 (Pa.Super.2002). We are looking, rather, to "what will best serve the needs and welfare of the child". See In re J.I.R., supra; see also 23 Pa.C.S.A. § 2511(b). Appellant challenges the court's consideration, or lack thereof, of the emotional bonds that exist between her and the children.
¶ 24 We conclude clear and convincing evidence was presented to prove that the bonds that existed between parent and child, if any, were so tenuous and destructive as to unequivocally warrant severance. Appellant's failure to supervise her children resulted in the physical abuse of the two older children, purportedly in their best interests; mother intentionally beat I.C. and Me.C., as evidenced by explicit photographs, and those same two siblings engaged in sexual activities together.[10] When told by Agency officials and the guardian ad litem that adoption was being considered, neither child expressed a desire to return to appellant. I.C.'s only concern was being able to visit and/or live with her siblings, and Me.C. expressed outright anger toward appellant for the lifestyle he endured while with her. Both children were doing well in their foster homes and expressed a desire to remain there. As for Mo.C., he has been living in the same foster home since November, 2003, is thriving physically, emotionally, and academically, and Mo.C.'s foster mother has expressed a definite interest in adopting him.[11]
¶ 25 While appellant offered self-serving testimony concerning her love and devotion to her children, her actions, or sometimes lack thereof, belie her words. We agree with the trial court that the children's needs and welfare will be best served by terminating their mother's parental rights and giving them the opportunity to be adopted into a caring and loving home, where they will be safe and free from worry that by right does not belong to a child.
¶ 26 Decree affirmed.
NOTES
[1] We have used the initials utilized by the trial court; I.C., Me.C., and Mo.C. Appellant's brief refers to the children as I.C., M.D.C., and M.C., respectively.
[2] In addition to the three children at issue here, appellant has three other children who live with their father.
[3] The other two siblings at issue had been declared dependent April 25, 2002, and were placed in foster homes where they have remained.
[4] The reunification plan required that appellant (1) participate in Keystone Reunification Services and the Community Action Commission; (2) provide supervision that would ensure her children's safety; (3) develop strategies to cope with stress; (4) receive psychological and psychiatric evaluations and follow any recommendations; (5) participate in County mental health services; (6) receive counseling specific to the sexual behavior of her children and herself; (7) be available for scheduled and unscheduled visits by the Agency; and (8) follow the safety plan created by the Agency with regard to proper supervision of her children. N.T. 3/4/05, at 136-137.
[5] Counsel asked mother whether she left the child at a friend's during one of Mo.C.'s weekend visits, but references the date as December 14, 2004, a Tuesday. Seetoo testified that the incident in question occurred on December 4, 2004, a Saturday. Because the parties agree and the record supports that the incident occurred during a weekend visit, we can only assume the correct date is December 4, 2004.
[6] See footnote number five.
[7] Appellant's initial contact with the Agency was in 1996, when she struck her mother in the head with a hammer.
[8] While there is a plethora of testimony regarding appellant's failure to care for I.C. and Me.C., mother does not make an argument with regard to these two children.
[9] Section 2511(b), 42 Pa.C.S.A., states, in pertinent part, that "[t]he court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child."
[10] Testimony was also offered that while in appellant's care, I.C. was sexually abused by her uncle and her cousin.
[11] The guardian ad litem for all three children, Myles Kauffman, Esquire, was unable to appear at the termination hearing, but did submit a letter dated March 1, 2005, stating his position on behalf of the children. The letter is included in the certified record, and states in pertinent part that it is his opinion the children's best interests would be served by changing the Agency goal to adoption. Kauffman opined that appellant (1) "has continuously demonstrated an inability to properly care for, control and/or supervise the children"; (2) "has demonstrated an inability or unwillingness to make reasonable efforts toward improving her parenting skills"; and (3) the circumstances that originally caused placement have not been remedied. Specifically as to Mo.C., the guardian stated that despite mother's initial cooperation, once she was granted unsupervised visitation, she immediately fell back into her pattern of leaving Mo.C. with friends, staying out late and sleeping until very late the day. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601408/ | 391 So. 2d 974 (1980)
Anthony ABADIE and Chris Schubert
v.
Curtis T. MORALES.
No. 11445.
Court of Appeal of Louisiana, Fourth Circuit.
December 9, 1980.
*975 Torres & Bischof, George N. Bischof, Jr., Chalmette, for Anthony Abadie, plaintiff-appellant.
Glenn E. Diaz, Chalmette, for defendant-appellee.
Before BOUTALL, SCHOTT and CHEHARDY, JJ.
CHEHARDY, Judge.
Plaintiff Anthony Abadie appeals from a trial court judgment dismissing at his cost his suit for personal injury damages against the defendant, Curtis T. Morales.
The record reflects that on November 19, 1974 at approximately 6 p. m., the plaintiff was operating a pickup truck on Louisiana Highway 46 (St. Bernard Highway) in a northward direction, and the defendant was operating a four-door sedan on the opposite lane of the highway, in a southward direction, when a collision between the two vehicles occurred.
At the trial on the merits in the district court the parties gave two completely different versions of the manner in which the accident happened.
The plaintiff testified there was a car parked on the side of the highway on which the defendant was driving and that the crash occurred in the plaintiff's lane as soon as Morales had passed the parked car. Abadie also stated when he saw the defendant's car coming, crossing into the plaintiff's lane, Abadie, in an attempt to avoid the defendant's car, drove his own truck into the northbound lane's adjacent ditch. As he tried to drive the car out of the ditch, however, he said the defendant's car hit his headlight, propelling the plaintiff's truck across the highway where it overturned in the southbound ditch.
The defendant testified, to the contrary, that although he did change lanes to go around the parked car, the parties' vehicles collided after he had returned his car to the southbound lane and had travelled thereon for approximately 150 feet. He stated his vehicle was completely in his own lane when it was struck by the plaintiff's truck, which only had one headlight, and that there was nothing he could do to avoid the collision. Morales' version of the occurrence was substantiated by Rhonda Couture, a passenger who was riding in the front seat of defendant's car. Both she and Morales also stated that neither of them spoke to the investigating police officer at the scene of the accident and that everyone in the defendant's car was subsequently transported by ambulance to a hospital.
Edwin Nunez, Jr., a deputy employed by the St. Bernard Parish Sheriff's Office, the investigating officer at the accident site, stated that due to the fact the accident occurred five years prior to the trial date, he did not have an independent recollection of the incident, but his report, based on his having talked with both drivers at the accident scene, showed the impact occurring directly to the side of the vehicle parked on the shoulder. Nunez testified the defendant told him he had cut into the opposite lane because of the parked car on the shoulder, and the plaintiff told him when the defendant's car came into his lane he pulled over to the right but could not avoid the crash. Although his report indicated he interviewed the defendant at the accident site, Nunez said he had no independent knowledge of having done so.
In giving his oral reasons for judgment from the bench, the district court judge stated in part:
"Mr. Abadie, your testimony was straight forward and direct and perhaps a little more so than Mr. Morales', but every plaintiff like yourself is required to prove his case by a preponderance of the evidence and if it were you and Mr. Morales only testifying I might have reached a different result but both Mr. Morales and his witness, who I have no reason to dispute, testified that the accident happened on their side of the road and that you were coming with one light and there has been no contradiction to that of the one light. * * * So, what really happened I don't know, but, I just don't feel that you were able to prove your case by the preponderance of the evidence despite *976 a very good job by your lawyer. So, I have no alternative but to dismiss your suit."
The record supports the trial judge's conclusion that plaintiff did not prove his case by a preponderance of the evidence. Although the police report substantiated the plaintiff's version of the accident, there was evidence presented at the trial that the information on the report was given mostly by the plaintiff, due to the fact that defendant was injured in the accident. Moreover, both the defendant and his passenger were consistent in narrating the actual events leading up to the collision.
Canter v. Koehring Company, 283 So. 2d 716, 724 (La.1973), articulates the standards to be applied in appellate review:
"When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court's finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court's better capacity to evaluate live witnesses (as compared with the appellate court's access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts."
Accordingly, we find no reason to disturb the trial court's findings of fact in the present case.
For the reasons assigned the district court judgment is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601472/ | 445 F. Supp. 1245 (1978)
UNITED STATES of America, Plaintiff,
v.
STATE OF TEXAS, Mark White, Secretary of State of Texas, John Hill, Attorney General of Texas, Waller County, Texas, Leroy Symm, Tax Assessor-Collector of Waller County, Texas, Defendants.
Civ. A. No. 76-H-1681.
United States District Court, S. D. Texas, Houston Division.
February 16, 1978.
John P. MacCoon, Dept. of Justice, Washington, D. C., Anna E. Stool, Asst. U. S. Atty., Houston, Tex., for United States of America.
David M. Kendall, Jr., First Asst. Atty. Gen. of Texas, Austin, Tex., for State of Texas, Mark White, and John Hill.
Will G. Sears, Michael T. Powell, Sears & Burns, Houston, Tex., for Waller County and Leroy Symm.
Before INGRAHAM, Circuit Judge, and SEALS and COWAN, District Judges.
MEMORANDUM OPINION
Prior Litigation, Legislation and Administrative Action Relating to Voter Rights of Prairie View Students
The case which controls this controversy is Whatley v. Clark, 482 F.2d 1230 (5th Cir. 1973) (hereinafter "Whatley"). That case holds that the statutory presumption of non-residency contained in Article 5.08(k) of the Texas Election Code is unconstitutional. Much of the previous litigation relating to voting rights in Waller County is rendered inapplicable by Whatley; however, that prior litigation, in the interest of completeness, should be reviewed.
The two previous cases in which the courts have grappled with the problem of Prairie View A & M University (hereinafter "Prairie View") student voters are Wilson v. Symm, 341 F. Supp. 8 (S.D.Tex.1972) and Ballas v. Symm, 351 F. Supp. 876 (S.D.Tex. 1972); 494 F.2d 1167 (5th Cir. 1974) (hereinafter "Wilson" and "Ballas").
*1246 Wilson was an effort by five Prairie View students to compel Tax Assessor-Collector Symm to register them to vote. The case was never certified as a class action pursuant to Rule 23, Fed.R.Civ.Proc. Wilson was decided before Whatley v. Clark, 482 F.2d 1230 (5th Cir. 1973), and the court's holding in Wilson is predicated upon the court's conclusion (later proved incorrect by Whatley) that Article 5.08(k) was constitutional. The court held that the function of the challenged questionnaire was to provide student applicants a means by which to overcome a statutory presumption of nonresidency. Since Wilson v. Symm was predicated upon an incorrect assumption concerning the constitutionality of Article 5.08(k), it now has limited authoritative force.
Wilson was decided in the spring of 1972. In the fall of that same year, the Honorable James Noel decided the case of Ballas v. Symm, 351 F. Supp. 876 (D.C.Tex.1972). The trial court decision in Ballas, like the decision in Wilson, was decided before the appellate decision in Whatley, and was similarly predicated upon an assumption that the statutory presumption of 5.08(k) was constitutional.
Ballas, a white student at Prairie View, complained of Symm's practice of requiring students to complete the questionnaire attached to this opinion as Exhibit A [Appendix]. The Ballas case was never certified as a class action pursuant to Rule 23. The court specifically declined (351 F.Supp. at 880) to certify the case as a class action.
The trial court's opinion in Ballas v. Symm, 351 F. Supp. 876, at 877, discusses the fact that on October 2, 1972, the United States District Court for the Eastern District of Texas (Judge Wayne Justice) decided Whatley, holding at the trial court level that the statutory presumption contained in Article 5.08(k) was unconstitutional. The opinion also discusses the fact that on October 3, 1972, the Chief Election Officer of the State of Texas, Secretary of State, Robert Bullock, issued a bulletin to all voting registrars, advising that:
"No county registrar may require any affidavits or questionnaire in addition to the information required on the application for a voter registration certificate."
The trial court in Ballas held that this bulletin and Bullock's acceptance of Judge Justice's decision in Whatley was:
"Utterly lacking in candor or credibility; legally incorrect; misleading; in excess of his statutory authority, and irrelevant." 351 F.Supp. at 888.
Subsequent to Judge Noel's decision in Ballas in November of 1972, the Fifth Circuit decided Whatley in August of 1973, holding that Bullock's legal position, as stated in his memorandum, and Judge Justice's trial decision in Whatley were in fact legally correct and that Article 5.08(k) was unconstitutional.
In 1975, in an action which the State of Texas here contends was taken in response to Judge Noel's criticism of Secretary of State Bullock in Ballas, the 64th Legislature of the State of Texas passed a statute, amending the Texas Election Code. The Texas Election Code, as modified by the 1975 amendments reads:
"Art. 1.03. Secretary of State as Chief Election Officer.
"Subdivision 1. The Secretary of State shall be the chief election officer of this state, and it shall be his responsibility to obtain and maintain uniformity in the application, operation and interpretation of the election laws. In carrying out this responsibility, he shall cause to be prepared and distributed to each . . . county tax assessor-collector, . . . detailed and comprehensive written directives and instructions relating to and based upon the election laws as they apply to elections, registration of electors, and voting procedures which by law are under the direction and control of each such respective officer. Such directives and instructions shall include sample forms of ballots, papers, documents, records and other materials and supplies required by such election laws. He shall assist and advise all election officers of the state with regard to the application, *1247 operation and interpretation of the election laws.
"Subdivision 2. At least 30 days before each general election, the Secretary of State shall prescribe forms of all blanks necessary under this Code, and shall furnish same to each county clerk.
. . . . .
"Art. 5.02. Qualification and Requirements for Voting.
. . . . .
(b) All citizens of this state who are otherwise qualified by law to vote at any election of this state or any district, county, municipality, or other political subdivision shall be entitled and allowed to vote at all such elections. The Secretary of State shall, by directive, implement the policies stated herein throughout the elective procedures and policies by or under authority of this state. Enforcement of any directive of the Secretary of State pursuant to this section may be by injunction obtained by the Attorney General."
Although there is no way to determine the legislative history of an Act of the Texas Legislature with certainty, the State of Texas contends (and it seems reasonable to assume) that these statutory changes were enacted in reaction to Judge Noel's statements critical of Bullock in Ballas.
The Fifth Circuit Court of Appeals in Ballas v. Symm, 494 F.2d 1167 (5th Cir. 1974) affirmed the trial court decision, emphasizing, however, two significant facts:
1. The use of the form itself did not violate the federal Constitution because the determination of whether or not an applicant was a voter was not made on the basis of the form alone, but on the contrary, was made after a hearing; and
2. There was no proof that the questionnaire itself was used as a device to prevent legal residents from voting.
The Fifth Circuit opinion by Circuit Judge Roney is drawn with precision and decides a very narrow issue, as stated at 494 F.2d at 1168:
"The precise issue which this suit seeks to determine is whether use of a questionnaire to assist in residence determination by a voter registrar is a violation of the 14th Amendment Equal Protection Clause, and the amended 1964 Voting Rights Act because only some voter applicants, but not all, were required to complete the questionnaire."
The Fifth Circuit, as did the trial court, emphasized that the case was not a class action and not properly regarded as a class action. (See 494 F.2d at 1169).
The case at bar was filed on October 14, 1976 and on March 15, 1977, this court, in an unpublished Memorandum Opinion, overruled defendant Symm's motion for summary judgment. Symm's motion for summary judgment was predicated upon a theory that the Fifth Circuit opinion in Ballas was res judicata and barred the United States from relitigating the controversy relating to Waller County voting rights. The court held that res judicata was not applicable because of lack of identity of parties and because the cause of action asserted by the Government herein differs from that asserted by Ballas. In reaching its conclusion, the court relied upon Southwest Airlines Co. v. Texas International Airlines, Inc., 546 F.2d 84, 95 (5th Cir. 1977); Black Voters v. McDonough, 421 F. Supp. 165 (D.C.Mass.1976). This court in its opinion of March 15, 1977, however, decided that the doctrine of abstention was applicable. This court's decision to abstain was reversed 15 days later in a one paragraph opinion. Thereafter, the factual record which is discussed below was developed in a series of hearings.
Pleadings and Assertions of the Present Parties
The complaint of the United States alleges that defendant Symm, by virtue of certain practices, including the use of a unique form, has abridged the right of Prairie View dormitory residents to vote in violation of their rights under the 14th, 15th and 26th Amendments to the Constitution of the United States. In oral argument, the *1248 United States has consistently contended that its cause of action is considerably broader than the cause asserted in Ballas, supra, in that the United States does not object to the use of the Symm form per se, but contends that the form is merely a part of a more pervasive pattern of conduct which has the effect and the intent of depriving dormitory students at Prairie View of their rights under the 14th, 15th and 26th Amendments.
The claims of the United States are asserted against Symm, the County Commissioners of Waller County, the State of Texas, Mark White, Secretary of State of the State of Texas, and John Hill, Attorney General of the State of Texas.
Hill and White answer by alleging that they have done everything within their power to guarantee the dormitory students of Prairie View their rights under the 14th, 15th and 26th Amendments and also assert that the use of the Symm questionnaire has had the practical effect of discouraging applicants for registration from completing the registration process. John Hill also asserts a cross-claim against Leroy Symm, stating that on September 1, 1977, the Secretary of State adopted Emergency Rule 004.30.05.313 prohibiting the use of questionnaires of the type employed by Symm. John Hill asserts that under the Texas Election Code, the Secretary of State had authority to issue this Emergency Rule, and prays that this court enjoin Symm from continuing to use the questionnaire contrary to the directions of the Emergency Rule adopted by the Secretary of State.
In answer to the cross claims asserted by White and Hill, Symm has filed a crossclaim against White asserting that White's Emergency Rule 004.30.05.313 is contrary to the laws of the State of Texas and in excess of the legal authority of the Secretary of State, and requesting this court to enter a Declaratory Judgment finding that White had no authority to issue (1) Emergency Rule 004.30.05.313 and (2) a letter of September 1, 1977 to Mr. Symm prohibiting Symm from continuing to use any voter registration procedure which required an applicant to provide any written information not required by Article 5.13b, subdivision 1, of the Texas Election Code.
In oral argument, counsel for Symm requested the court to invoke its pendent or ancillary jurisdiction for the purpose of entering a Declaratory Judgment to the effect that White has no authority to issue the Emergency Rule and the letter in controversy.
EVIDENCE IN PRESENT CASE
Testimony of Prairie View Students and Administrators
Sidney Hicks is a full time student at Prairie View. He resides in the dormitory and is active in student affairs. Before commencing college, he lived in Navarro County, Texas.
Students at Prairie View commenced their efforts to vote in Waller County in 1966. The most recent drive to encourage students to vote was in March of 1976. In March of 1976, Mark White, the Secretary of State, and a number of his deputies visited the campus to assist students to register and vote. Hicks believes that White's staff was extremely helpful, but he cannot testify that White did everything possible to aid the students in their desire to register and vote in Waller County.
During the drive to register students in the spring of 1976, Hicks, accompanied by others, visited Mr. Symm to discuss with him the desire of many Prairie View students to register and vote in Waller County, and their belief that they were legally entitled to do so. Symm explained to Hicks and his companions that allowing students to register and vote would not be fair to permanent residents of Waller County who had devoted their entire lives to the county and who would be present in the county long after the students were gone. Symm further explained that as he viewed the matter, students and military personnel fell into the same category and neither were entitled to be routinely registered on the same basis or by the same procedures as "permanent" residents.
*1249 The town of Prairie View is located within Precinct 12 of Waller County. In the 1976 election, Hicks became a candidate for city councilman for the town of Prairie View and was elected, even though the bulk of the students at Prairie View University were not registered voters. He attributed his victory at the polls to the fact that the registered voters in Prairie View approved of his efforts to assist and encourage qualified students to register and vote.
In an effort to register and vote in Waller County, Hicks filled out the Symm questionnaire. He stated in the questionnaire that he was a resident of Prairie View, lived in the dormitories, was a full time student, returned to his parents' home in Nacogdoches on holidays and in the summers, spent approximately 75% of his time at Prairie View, and regarded Prairie View as his residence while he was pursuing his studies. He was not allowed to register in Waller County and in the 1976 election was able to vote only by driving approximately 300 miles to his parents' home in Navarro County.
Hicks, throughout, has been aware that he and other students may have a legal right to request federal registrars to come to Waller County to assist in the registration of students. He states that he and other students have refrained from pursuing this remedy because they did not wish to create hard feelings, hoped to create a feeling of amity in Waller County, and to make Waller County the best county in the state.
Hicks testified without equivocation that dormitory students at Prairie View were simply not allowed to register in Waller County.
Hicks testified that during the voter registration drive of 1976, he, through the student organization in which he was active, kept detailed records concerning the number of applications to vote by students. He testified that over 1,000 application cards were forwarded to Mr. Symm. In one of his conferences with Hicks, Symm told Hicks that only 700 of these were received. Only 27 students were registered to vote, and none of those 27 were dormitory students. All of the 27 were either Waller County natives or were married students.
Three other Prairie View students testified. All testified that they were dormitory residents, full time students, and had no definite intention concerning returning to the counties of their parents' homes when they completed their studies. All testified that they had filled out Symm's form but had not been allowed to register and vote. One of them had been allowed to register and vote, after refusal by Mr. Symm, in the county of his parents' residence. One other had not been successful in registering in the county of his parents' residence, and was not able to vote in the 1976 presidential election.
Mr. C. A. Thomas, the Registrar of Prairie View A & M University, testified that undergraduates from outside Waller County were required to live in the dormitory when dormitory space was available; that normally the dormitories had space for all students; that Prairie View freshmen were normally in the 17-19 age bracket; that all dormitory students were black; and that as of October 1976 there was a total of 2,918 students living in the dormitories.
Testimony of University of Texas Students and Registrars from other Counties
Students from the University of Texas testified that in Travis County students were routinely registered like other voters, simply by filling out the state prescribed registration form and furnishing the information there, and were not subjected to further or special inquiry.
The United States introduced in evidence the testimony of 70 registrars of voters, located in virtually every Texas county containing an institution of higher learning. None of the registrars of the 70 other Texas counties containing institutions of higher learning follows Mr. Symm's procedure; none applies the presumption contained in Article 5.08(k) and declared unconstitutional in Whatley; and none subjects students to any more rigorous scrutiny than other *1250 applicants for voting. All feel that they are applying the law of the state properly. All state that they would not register a potential applicant, if they knew he was not a resident of the county, but that they do not have the personnel or manpower to conduct detailed inquiries with reference to each applicant.
Testimony of Representatives from Office of Secretary of State
Mark White, Secretary of State of the State of Texas, and Leroy Beck, a deputy Secretary of State, testified that during the period from February, 1976 until October, 1976, Mr. White or his deputies made a total of ten visits to the Prairie View campus for the purpose of educating students concerning their rights and attempting to discuss the Waller County situation with Mr. Symm.
White testified that he visited Symm and explained to him that Article 5.08(k) had been declared unconstitutional in Whatley. White also testified that he and his deputies visited Prairie View campus on numerous occasions, attempting to explain the law to students, and attempting to assist students to register in whatever county the student felt was in fact his residence.
White testified that he told students that they could not automatically be registered where they were students but were required to establish residence in the place where they wished to vote.
White also testified that in September, 1977, he issued the following directive:
Suffrage Use of Questionnaires or other Written Information in Qualifying Registrants 004.30.05.313
The Secretary of State has adopted Emergency Rule 004.30.05.313. The rule states that no questionnaire or additional information may be required of an applicant who has properly completed a voter registration application. The rule is necessary to meet administrative problems concerning voter registration for the November 8, 1977 Constitutional Amendment Election, and for this reason is adopted as an emergency rule.
This emergency rule is adopted under the authority of Articles 1.03, 5.02(b), and 5.13a, Vernon's Texas Election Code.
.313. No questionnaire or additional written information shall be required prior to the registration of any applicant for voter registration who has properly completed a voter registration form which has been prescribed by the Secretary of State.
Issued at Austin, Texas, on September 1, 1977.
/s/ MARK WHITE
Secretary of State
Testimony of Leroy Symm
Mr. Symm was first elected Tax Assessor-Collector of Waller County in 1956 and has served continuously since that time.
Commencing about 1966, there were efforts by persons whom Mr. Symm regards to be non-residents to vote, and at that time he instituted the procedure of having each person whose good faith residence he questioned, complete an affidavit. There was some objection to these affidavits, and consequently in about 1970, he ceased the use of the affidavit and instead started to use the "Questionnaire," a copy of which is attached to this opinion as Exhibit A (hereinafter the "questionnaire").
One of the reasons for Symm's use of the questionnaire is his belief that Article 5.08(k) of the Election Code is applicable. Symm stated that he had read in the newspaper that an opinion from some court declared Article 5.08(k) unconstitutional, but that he did not change his practices after receiving this information and that he, himself, in making residency determinations, still applies the presumption set forth in Article 5.08(k) and instructs his deputies to do the same. His testimony in this connection is confirmed by the testimony of his deputies, who state that they also, by virtue of instructions from Symm, apply the presumption decreed in Article 5.08(k).
*1251 Symm states that he has received Mark White's "Emergency Order" and has discussed this order with White. In his discussions with White, Symm questioned White's authority to issue the emergency directive. Mr. Symm states that he will continue to use the form until this court determines whether White has the authority to issue his directive, and that he will comply with the order of this court in connection with the determination of White's authority.
Mr. Symm, in his deposition taken on January 16, 1978, testified definitely, without equivocation, in response to numerous questions, that he still applies the presumption contained in Article 5.08(k). At the hearing held before this court on January 31, 1978, he forthrightly and candidly repeated this testimony.
Symm's basic procedure is as follows: A very large number of persons who apply to register to vote are personally known to Symm or his deputies as being residents of Waller County. These persons are routinely registered, upon filling out the state form, without further inquiry. A second category of persons exists who are also registered routinely and without further delay. This second category consists of persons who are not personally known to Symm or his deputies as residents of Waller County, but who are listed on the tax rolls as owning property in Waller County and whose address on the tax rolls shows an address in Waller County. A third category consists of those who do not fit within either of the above categories, and those persons are issued the questionnaire which is attached to this opinion as Exhibit A [Appendix].
Upon examining the questionnaire, Symm either registers the persons as voters, or gives them notice that a hearing has been set to hear evidence and make a determination as to their residency. Experience demonstrates that a very high percentage of the persons for whom hearings are set do not appear, and that a majority of the persons who appear for hearings are not registered.
With reference to the third category (i. e., non-property owners not known to Symm or his deputies), Mr. Symm, in making his residency determination, does not rely upon a single factor, but instead, considers the entire factual background. In this connection he considers the marital status of the applicant, the question of whether he is employed in Waller County, the question of whether he has family in the county, the question of whether he is a Waller County native, and the question of whether or not the place where he lives is a permanent address, as distinguished from a temporary residence. He states that generally students are not regarded by him as residents unless they do something to qualify as permanent residents, such as marrying and living with their spouse or obtaining a promise of a job in Waller County when they complete school. He does not regard a dormitory room as a permanent residence, and regards a permanent residence only as a place with a refrigerator, stove and furniture.
Mr. Symm has no information concerning procedures followed in other counties and no interest in those procedures.
With reference to the voter registration drive in 1976, Mr. Symm received 898 applications for voter registration which bore a permanent mailing address at Prairie View, Texas. Of these 898 applications, 79 were registered as voters on the basis of Symm's personal acquaintance and knowledge that the applicants were good faith residents of Waller County. Thirteen of these 898 were registered on the basis of examination of ad valorem tax rolls. 101 applicants were challenged and hearings set. Of the 898, 545 were requested to complete the questionnaire by certified or registered mail. 209 of the Symm mailings (which requested the addressees to fill out his questionnaire) were returned "refused" or "unclaimed." 295 of the applicants received the questionnaire but did not return it to Symm's office. 78 of the applicants completed the questionnaire and 25 of these were registered as voters without a hearing on the basis of the total contents of the questionnaire. 238 notices of hearing were sent wherein the *1252 applicants did not appear for the hearing. Thirty applicants who were sent notices of hearing appeared, and ten were registered as good faith voters after a hearing.
In summary, of 545 potential voters who were sent the questionnaire, a total of 35 were registered as voters.
Mr. Symm believes that students and servicemen fall within the same category, and that neither are residents, as a general rule, of the place where they are stationed or attending school, and in making this determination of residency, he applies this assumption and the Article 5.08(k) presumption.
Symm testifies that a number of the questions on his questionnaire are not really very significant in enabling him to make a determination concerning residence. For example, the length of time a student has been at Prairie View, the length of time he has resided in Texas, and the question of whether or not he is employed, are of no particular significance; however, the question concerning property ownership is very significant, as is the question concerning whether the student has been promised a job in Waller County or intends to reside in Waller County "indefinitely." Symm agrees that "indefinite" is an indefinite word, but it is inferable from his testimony that he attempts to make a determination as to whether or not a student has an intent and a reasonable expectation of remaining permanently in Waller County upon completion of his studies. In this connection, Symm emphasizes that very few students continue to reside in Waller County upon graduation because of limited job opportunities and supports this view by reference to alumni statistics revealing that only about 2% of Prairie View alumni reside in Waller County.
The question concerning whether or not an applicant has an intent to remain "indefinitely" in Waller County is a question which he asks only of those who are required to fill out the questionnaire. He does not ask persons with jobs in Waller county whether they intend to remain in the county "indefinitely."
Students at Prairie View whose parents live in Waller County are treated differently from other students. These Prairie View students, the children of Waller County natives, are registered without question. In addition, married students, even if they reside in the dorms with their spouses, would be routinely registered, but not single students.
Tests of Symm's Perception of Non-Discriminatory Use of Questionnaire
Both the State of Texas and the Commissioners of Waller County agree that Mr. Symm sincerely perceives that his use of the questionnaire is non-discriminatory and that it is issued only to persons whom Symm does not know personally or who do not appear as property owners on the tax rolls of Waller County. This perceived assumption was accepted by both trial and appellate courts as having been established conclusively on the basis of the record developed in Ballas. The record in Ballas was obviously less comprehensive than the record developed in the case at bar.
In an effort to test the accuracy of Symm's perception, the United States, plaintiff herein, has subjected this perception to the test described below.
In answers to interrogatories served upon him pursuant to Rule 33, Fed.R.Civ.Proc., Mr. Symm attached the voter registration forms of all Waller County voters who were registered on the basis of his personal knowledge. After these interrogatories were answered, investigators for the United States interviewed every fifth person on the list of those persons who had been registered because of Symm's personal knowledge. A large percentage of these registrants did not themselves know Mr. Symm or know how Mr. Symm could have knowledge of their residence.
Thereafter Symm and his deputies analyzed the list of those voters who denied that they knew Mr. Symm, and identified each of those persons whom Symm or his deputies knew. This list appears in this record as Defendant's Exh. 10. Mr. Symm *1253 and his deputies were not able to state, with reference to a large number of the persons listed on Defendant's Exh. 10, that they had personal knowledge concerning the residence of such individuals.
The United States of America contends that this procedure and the results thereof prove conclusively that Symm's perception as to the non-discriminatory use of his questionnaire is inaccurate.
Detailed examination of the identity of persons to whom questionnaires are sent also reveals that it appears that only Prairie View students or persons with addresses on the campus have been issued the Symm questionnaire and that others not known to Symm are not required to complete the questionnaire. This fact, among others, distinguishes the factual patterns assumed by both trial and appellate courts in Ballas, supra.
Evidence Relating to County Commissioners and Analysis of Same
There is no evidence that Waller County Commissioners have in any degree participated in Symm's determinations concerning residency of voters, or the selection of his procedures.
The parties have, however, placed before the court detailed correspondence from the County Commissioners to the Department of Justice concerning the Attorney General's objection under Section 5 of the Voting Rights Act of 1976 to a proposed redistricting. In a letter dated August 24, 1976, counsel for the County Commissioners made the following statement:
"Pursuant to the provisions of 28 C.F.R. § 51.23 (1975), the Commissioners Court of Waller County presents this request for reconsideration of the Attorney General's objection to the 1975 redistricting of Waller County. That objection appears to have been premised upon the failure of the Commissioners Court to include approximately 2,000 of the students at Prairie View A & M University (`Prairie View') in the population base for the reapportionment of Waller County. These excluded students have not qualified to vote in Waller County and are probably ineligible to qualify."
This record does not reveal where the figure of "2,000 students" originated. The testimony of C. A. Thomas, the Registrar of Prairie View, is that as of October 21, 1976, there were 2,918 dormitory students residing at Prairie View. The testimony of Mr. Hicks is that approximately 1,000 Prairie View students attempted to register and vote during the voter registration drive in 1976. The origin of the "2,000 students" figure is obscure.
In view of the undisputed fact that for many years Mr. Symm has applied the presumption set forth in Article 5.08(k), it is impossible to determine from this record, or from the facts as they must exist at the present time, how many duly qualified registered voters do exist at Prairie View University. All that can be said with certainty is that there are probably more than 38 and less than 2,918. Until Mr. Symm and the Commissioners have gained some experience in registering students applying proper procedures, it is impossible to determine how many of the dormitory students at Prairie View are properly registered voters in Waller County.
The case of Eristus Sams v. Commissioners of Waller County, Civil Action No. 75-H-965, is a pending case challenging the districting methods used in Waller County. Questions relating to the districting or redistricting of Waller County must be resolved in that case.
AUTHORITIES
Authorities Relating to 26th Amendment Allegations
On June 22, 1970, Congress passed the Voting Rights Act Amendments of 1970, containing in Title III, the following provisions:
TITLE III REDUCING VOTING AGE TO EIGHTEEN IN FEDERAL, STATE AND LOCAL ELECTIONS
Declaration and Findings
Sec. 301 (a) The Congress finds and declares that the imposition and application *1254 of the requirement that a citizen be twenty-one years of age as a precondition to voting in any primary or in any election
(1) denies and abridges the inherent constitutional rights of citizens eighteen years of age but not yet twenty-one years of age to vote a particularly unfair treatment of such citizens in view of the national defense responsibilities imposed upon such citizens;
(2) has the effect of denying to citizens eighteen years of age but not yet twenty-one years of age the due process and equal protection of the laws that are guaranteed to them under the Fourteenth Amendment of the Constitution; and
(3) does not bear a reasonable relationship to any compelling State interest.
(b) In order to secure the constitutional rights set forth in subsection (a), the Congress declares that it is necessary to prohibit the denial of the right to vote to citizens of the United States eighteen years of age or over.
Prohibition
Sec. 302 Except as required by the Constitution, no citizen of the United States who is otherwise qualified to vote in any State or political subdivision in any primary or in any election shall be denied the right to vote in any such primary or election on account of age if such citizen is eighteen years of age or older.
Enforcement
Sec. 303 (a) (1) In the exercise of the powers of Congress under the necessary and proper clause of section 8, article 1 of the Constitution, and section 5 of the Fourteenth Amendment of the Constitution, the Attorney General is authorized and directed to institute in the names of the United States such actions against States or political subdivisions, including actions for injunctive relief, as he may determine to be necessary to implement the purpose of this title.
(2) The district courts of the United States shall have jurisdictions instituted pursuant to this title, and shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28, of the United States Code, and any appeal shall lie to the Supreme Court. It shall be the duty of the judges designated to hear the case to assign the case for hearing and determination thereof, and to cause the case to be in every way expedited.
(b) Whoever shall deny or attempt to deny any person of any right secured by this title shall be fined not more than $5,000 or imprisoned not more than five years, or both.
Definition
Sec. 304 As used in this title, the term "State" includes the District of Columbia.
The statute quoted above was limited to federal elections by Oregon v. Mitchell, 400 U.S. 112, 91 S. Ct. 260, 27 L. Ed. 2d 272 (1970), but almost immediately Congress proposed and three-fourths of the states adopted the 26th Amendment which provides that the right of citizens who are over 18 to vote shall not be "denied or abridged" by any state "on account of age."
Senate Report No. 26, 92nd Cong., 1st Sess. (1971), with reference to the 26th Amendment noted that:
". . . forcing young voters to undertake special burdens obtaining absentee ballots, or traveling to one centralized location in each city, for example in order to exercise their right to vote might well serve to dissuade them from participating in the election. This result and the election procedures that create it, are at least inconsistent with the purpose of the Voting Rights Act, which sought to encourage greater political participation on the part of the young; such segregation might even amount to a denial of their 14th Amendment right to equal protection of the laws in the exercise of the franchise."
In 1976, Congress amended the language of Title III of the Voting Rights Act in § 1973bb to specifically set out that this portion of the Act was "to implement" the 26th Amendment.
*1255 Litigation was necessary to enforce the promises of Title III of the Voting Rights Act Amendment of 1970, and the 26th Amendment. One such case was Whatley. Whatley does not stand alone, but is merely one of a number of cases reaching virtually the identical conclusion and applying the same philosophy.
The first of this series of cases is Bright v. Baesler, 336 F. Supp. 527 (E.D.Ky.1971). Like Whatley, Bright v. Baesler was a case in which officials in Lexington, Kentucky sought to enforce a presumption that students were domiciliaries of their parents' homes. Plaintiffs contended that the official practices were violative of the 14th and 26th Amendments, as well as of 42 U.S.C. § 1971, et seq. As in the case at bar, the registrar in Bright had required students to complete and answer a series of questions designed to overcome a presumption that they were domiciliaries of their parents' homes.
The court enjoined the defendants from imposing additional or special criteria for proof of domicile upon University students; required the defendant to ask each applicant the same questions regardless of occupation and required that the questions asked reasonably relate to proof of domicile. The court at 336 F.Supp. at 533 said:
". . . Because voting rights involve the First Amendment freedom of association, the State may not impose restrictions upon that right unless there is a compelling state interest in the imposed restriction or classification. Williams v. Rhodes, 393 U.S. 23, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968). It would seem, therefore, that the extra burden of proof imposed upon students in regard to proof of their domicil may only be held constitutional if a compelling state interest is thereby served.
"There is no dispute in this case that Kentucky has the right to require every applicant for voter registration to be a domiciliary of the precinct in which he offers to vote. But may the State require, and is there any compelling reason why it should require, students to go to greater lengths to prove domicil than other citizens. This court thinks not.
. . . . .
"There is no reason to assume, and the defendants have offered none that would satisfy the compelling interest test, that a person claiming to have fulfilled the domiciliary requirement is not to be believed if he is a student . . . Simply put there are no salient reasons to treat registering students differently from other people merely because they are students.
. . . . .
"Notwithstanding the fact that there may be a significant number of students who do intend to return to their former homes, there is an equally significant number of students who do not intend to return to their former homes, and the presumption against university domicil unfairly discriminates against them.
. . . . .
"The court cannot conceive of any reason why it should not be presumed that student applicants for voter registration, like any other applicant, have made their application to register in good faith. Admittedly a student may not be able to state with certitude that he intends to permanently live in the university community, but such a declaration is not necessary to establish domicil.
. . . . .
"This is not to say that the defendants may not require each applicant to prove domicil. The defendants may ask each applicant a series of questions directed at proving domicil, but each applicant should be asked the same questions, and the questions should reasonably relate to proof of domicil."
In Shivelhood v. Davis, 336 F. Supp. 1111 (D.Vt.1971) the registrar was held to be applying an incorrect standard by requiring students to produce more persuasive evidence of their domicile than did other voter applicants. The registrar required of each registrant an intent to remain in Middlebury permanently, thus precluding most students, who were unable to state with *1256 certainty where they would live upon completing their studies. The court said (336 F.Supp. at 1115):
"The fact that a student lives in a dormitory, is unmarried, is supported financially by his parents who live elsewhere, would be considered a minor in the state in which his parents live and occasionally visits his parents, even if all these factors occur together, is not alone sufficient to preclude domicile in the town in which the student attends school, although these factors may be considered together with other relevant evidence. Furthermore, although we do not imply that the Board has considered them to be relevant, we think it important to note that such factors as the lack of a Vermont driver's license or car registration are irrelevant unless the individual has a license or registration in another state.
. . . . .
"Thus, the Board of Civil Authority must not require students to fill out a supplemental questionnaire involving questions concerning their domicile unless all applicants are required to complete the same questionnaire. Moreover, the Board of Civil Authority must use its best efforts to insure that any questionnaire is equally relevant to all applicants and not designed only to apply to student applicants."
Ownby v. Dies, 337 F. Supp. 38 (E.D.Tex. 1971) involved Article 5.08(m) of the Texas Election Code, which provided for voting residency of persons under 21 years of age on a different basis than that applied to persons 21 years of age or over. Ownby, supra, is in effect an agreed judgment in which the State of Texas agreed with the plaintiffs that Article 5.08(m) violated the plaintiff's rights under the 14th and 26th Amendments.
The litigation to make genuine the guarantees of the 26th Amendment was not limited to the federal courts. The Supreme Court of California decided Jolicoeur v. Mihaly, 5 Cal. 3d 565, 96 Cal. Rptr. 697, 488 P.2d 1 (Aug. 27, 1971) decreeing that newly enfranchised young people in California, residing apart from their parents, should be treated like other voters for the purpose of acquiring voting residence and should not be presumed to reside with their parents. Voting registrars of five major counties in California declined to register students on the basis of a California Attorney General's opinion concluding that for voting purposes the residence of an unmarried minor would normally be his parents' home. The plaintiffs sought from the court a decree directing the various registrars to register them in accordance with the same procedures and qualifications followed with respect to adult registrants. The Supreme Court of California granted relief, reasoning that to compel students to travel to the homes of their parents, or to compel them to vote absentee burdened their right to vote, and thus abridged that right in contravention of the 26th Amendment.
The California Supreme Court enjoined the defendants from treating students in a manner different from other voter registrants primarily on the basis of a detailed and comprehensive review of the legislative history of Title III of the Voting Rights Act of 1970 and the 26th Amendment. The California Supreme Court said (96 Cal.Rptr. at 703, 488 P.2d at 7):
"America's youth entreated, pleaded for, demanded a voice in the governance of this nation. On campuses by the hundreds, at Lincoln's Monument by the hundreds of thousands, they voiced their frustration at their electoral impotence and their love of a country which they believed to be abandoning its ideals. Many more worked quietly and effectively within a system that gave them scant recognition. And in the land of Vietnam they lie as proof that death accords youth no protected status. Their struggle for recognition divided a nation against itself. Congress and more than three-fourths of the states have now determined in their wisdom that youth `shall have a new birth of freedom' the franchise. Rights won at the cost of so much individual and societal suffering may not and shall not be curtailed on the basis of *1257 hoary fictions that these men and women are children tied to residential apron strings. Respondents' refusal to treat petitioners as adults for voting purposes violated the letter and spirit of the Twenty-Sixth Amendment."
The identical result was reached by the Supreme Court of New Jersey in Worden v. Mercer County Board of Elections, 61 N.J. 325, 294 A.2d 233 (1972). That court distinguished any earlier, inconsistent decisions by pointing out that earlier decisions were made "in relatively immobile areas when it was generally assumed that the college student would lead a semi-cloistered life with little or no interest in non-college community affairs and with the intent of returning on graduation to his parents' home and way of living. Such assumption, of course, has no current validity."
Well reasoned opinions by courts in Pennsylvania, Mississippi and Michigan have reached identical conclusions. See Sloane v. Smith, 351 F. Supp. 1299 (M.D.Pa.1972); Latham v. Chandler, 406 F. Supp. 754 (N.D. Miss.1976); Frazier v. Callicutt, 383 F. Supp. 15 (N.D.Miss.1974); Wilkins v. Bentley, 385 Mich. 670, 189 N.W.2d 423 (1971).
Ballas must be construed in the light of the foregoing authorities and also in the light of the very careful, limiting language of Judge Roney in Ballas. Ballas merely holds that on the record in that case, in which there was no proof of either racial discrimination or discrimination based on age, the use of the Symm form was constitutionally permissible so long as it did not abridge 26th Amendment rights to provide, by itself, the basis for a refusal of registration. Judge Roney carefully pointed out in Ballas that:
". . . The alleged harm is not in the denial of voter registration but in being required to answer the questionnaire. . . .
the cumulative effect of the answers is to support or fail to support the applicant's assertion of residency. It appears to be nothing more . . . There is no proof that the questionnaire was used as a device to prevent legal residents from voting."
In the case at bar, plaintiff does not challenge the Symm questionnaire per se, but alleges that in fact Mr. Symm has improperly denied voter registration to numerous students at Prairie View and that the Symm questionnaire was an integral step in the procedure involved in such denial. In addition, there is here both allegation and proof that the questionnaire was used as a part of a pattern of conduct in which Symm denied Prairie View students the right to vote or abridged such right by the application of a presumption declared unconstitutional in Whatley and in the other cases discussed above.
Texas Authorities
The evidence in this case establishes that Symm is the only registrar in the State of Texas who uses the questionnaire of the type here in controversy. Seventy counties in the state have institutions of higher learning, and Symm is the only county registrar who employs a questionnaire of the type here under attack. Symm contends this fact is not only immaterial, but that it establishes that he is the only registrar in the state who complies with the requirements of law and who conscientiously makes a factual determination as to the residence of students.
Symm's position is inconsistent both with the 26th Amendment cases discussed above, and also with the relevant Texas cases.
The only Supreme Court of Texas case relating to residency of students is Mills v. Bartlett, 377 S.W.2d 636 (Tex.Sup.Ct.1964). While the facts of Mills, supra, are not similar to any of the facts relating to any Prairie View student, the language of the Supreme Court is significant (377 S.W.2d at 637):
". . . Neither bodily presence alone nor intention alone will suffice to create the residence, but when the two coincide at that moment the residence is fixed and determined. There is no specific length of time for the bodily presence to continue . . ."
*1258 It is apparent from Mills v. Bartlett that there is no requirement that a student, in order to establish that he is a resident of the place where he wishes to vote, establish that he intends to remain there permanently or for any particular period of time.
A review of the applicable opinions of the Texas courts of civil appeals reveals that the courts have not applied the same standards and the same reasoning as has Mr. Symm in dealing with students and other persons whose life style is similar to that of students. For example, in Cavallin v. Ivey, 359 S.W.2d 910 (Tex.Civ.App. El Paso 1962), the court dealt with a problem created by two Mexican-American citizens of the United States whose wives and families lived in Mexico. The Mexican-American citizens visited their families in Mexico on Sundays, and worked during the week in Brewster County. Although Article 5.08(f) of the Texas Election Code provides that a married man, not permanently separated from his wife, shall be deemed to have a residence where his family lives, the Court of Civil Appeals held that a literal application of that language would disenfranchise these Mexican-American citizens and thus held them qualified to vote in Brewster County even though their families resided in Mexico, and even though the men visited Mexico each weekend and simply worked in Brewster County.
In McBeth v. Streib, 96 S.W.2d 992 (Tex. Civ.App. San Antonio 1936) the voters in question were members of the Civilian Conservation Corps, living in a CCC camp. In finding the young men living in the CCC camp were qualified voters in the county in which they were physically present, the San Antonio Court of Civil Appeals, long before Carrington v. Rash, 380 U.S. 89, 85 S. Ct. 775, 13 L. Ed. 2d 675, said (96 S.W.2d at 995):
"The presumption, of course, obtains here, as generally in this state, that every man has the right and privilege of fixing his residence according to his own desires. This applies to single men as well as married men, though it is a matter of common knowledge that single men do change their places of residence more frequently than married men. That fact, however, does not change or take away their definite legal rights, if, as, and when they comply with the law and acquire same under a change of residence or otherwise. It is equally true that a man is presumed, ordinarily, to `reside' where he `lives,' and this is true for voting privileges, provided he has lived there for the length of time prescribed by law; and certainly this is true if he declared such to be his intention and he proceeds to perform the acts and duties incident to legal residence, such as securing his poll tax receipt or exemption certificate, and for the very purpose of so doing, and then actually votes, at the local or precinct elections of his residence. McCharen v. Mead, Tex.Civ.App., 275 S.W. 117; Hogg v. Waddell, Tex.Civ.App., 42 S.W.2d 488."
In Clark v. Stubbs, 131 S.W.2d 663 (Tex. Civ.App. Austin 1939) one of the challenged votes was that of a college student who had voted in the county of her parents' residence. In upholding this vote, the court said: ". . . that a student in college may retain his or her residence in the county where they resided before they became a student." The obvious inference is that if a student may retain his or her residence in the county where he resided before he became a student, he may also lose it and become a resident of the place where he is attending college. This precise situation, where a person loses his previous residence in the county of his parents' residence, is illustrated by Spraggins v. Smith, 214 S.W.2d 815 (Tex.Civ.App. Amarillo 1948) where a young woman had lived with her parents before going to Washington to take a job which arguably would not be permanent. The court upheld a trial court determination that the young woman, who had gone to Washington for an arguably temporary job, had lost her residence in the county where her parents resided and her vote was disallowed.
Another case where a student lost his residence in the county where his parents resided, and where he had resided before becoming a student, is Harwell v. Morris, *1259 143 S.W.2d 809 (Tex.Civ.App. Amarillo 1940). This was an election contest involving Oldham County. The challenged voter had left Oldham County and gone to Amarillo where he became a student with a part time job. The trial court, with appellate court concurrence, held that the student had lost his residence in the county where he had resided before becoming a student and had become a resident of Amarillo where he was a student with a part time job.
It is clearly inferable from Mr. Symm's detailed testimony on deposition and at the trial that he will register a dormitory student at Prairie View, only if the dormitory student is a Waller County native whose family lives in Waller County, or if the student has been promised a job in Waller County after he completes school. No Texas case supporting this procedure has been discovered. Even without reference to the unconstitutionality of Texas Election Code Article 5.08(k), Symm's procedures and criteria with reference to dormitory students appears inconsistent with the relevant Texas cases.
Authorities Relating to Pendent or Ancillary Jurisdiction
Both the State of Texas and Symm contend that this court has pendent jurisdiction to decide the controversy between them relating to whether or not the Secretary of State, pursuant to the powers granted to him by the Texas Election Code, has the power to prohibit Symm from using the Symm questionnaire. The United States, for reasons not apparent to the undersigned, contests this pendent jurisdiction.
Rule 13(g), Fed.R.Civ.Proc., in its pertinent parts, states that:
"A pleading may state as a cross claim any claim by one party against a co-party arising out of the same transaction or occurrence that is the subject matter either of the original action, or of a counterclaim therein . . ."
The term "transaction" as used in Rule 13(g) has a "flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon the logical relationship . . ." Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S. Ct. 367, 70 L. Ed. 750 (1926).
Applying the language of Moore and the test as set forth in Revere Copper & Brass, Inc. v. Aetna Casualty Insurance Company, 426 F.2d 709 (5th Cir. 1970), it would appear that the subject matter of the cross-claims between White, Hill and Symm do in fact arise out of the same "transaction" as does the United States' complaint. Accordingly it would appear that this court does have pendent jurisdiction over the controversy between White, Hill and Symm. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218. It is apparent that the state and federal claims both derive from a "common nucleus of operative fact" and that all of the claims asserted by all of the parties are such that the parties would ordinarily be expected to try them in one judicial proceeding. See 383 U.S. 715 at 725, 86 S. Ct. 1130, 16 L. Ed. 2d 218.
Authority of the Secretary of State to Prohibit Use of the Symm Form
The Texas Election Code, on its bare language, supports the claim of the Secretary of State and the Attorney General that the Secretary of State has power to prohibit use of the Symm form, particularly where, as here, there is substantial evidence that the Symm form has been used as an integral part of a pattern of conduct which abridged the voting rights of a segment of the citizenry. When the statutory language is considered in the light of the history set forth on page 1246 above in this Memorandum Opinion, the conclusion that the Secretary of State did have the authority to issue his Emergency Order No. 004.30.05.313 is confirmed.
The Texas Election Code, after amendment in 1975 in apparent response to the trial court's opinion in Ballas reads:
"Article 1.03. Secretary of State as Chief Election Officer.
*1260 "Subdivision 1. The Secretary of State shall be the Chief Election Officer of this state, and it shall be his responsibility to obtain and maintain uniformity in the application, operation and interpretation of the election laws. In carrying out this responsibility, he shall cause to be prepared and distributed to each county judge, county tax assessor-collector, . . . detailed and comprehensive written directives and instructions relating to and based upon the election laws as they apply to elections . . . Such directives and instructions shall include sample forms of ballots, papers, documents, records and other materials and supplies required by such election laws.
"Article 5.02. Qualification and Requirements for Voting.
. . . . .
(b) All citizens of this state who are otherwise qualified by law to vote at any election of this state or any district, county, municipality, or other political subdivision, shall be entitled and allowed to vote at all such elections. The Secretary of State shall, by directive, implement the policies stated herein throughout the elective procedures and policies by or under authority of this state. Enforcement of any directive of the Secretary of State pursuant to this section may be by injunction obtained by the Attorney General."
Bullock v. Calvert, 480 S.W.2d 367 (Sup. Ct.Tex.1972) is not factually analogous; however, the language of the Texas Supreme Court supports the Secretary of State's power to issue the Emergency Order. Justice Reavley there said:
". . . He (i. e., the Secretary of State) is designated `Chief Election Officer' for the purpose of obtaining uniformity in the operation of the election laws. He is to assist and advise all election officers of the state. It is surely his office to communicate and explain the law to the end that all of the provisions of this Election Code will be followed throughout the state at every election and in every polling place. But no commission is given for him to conduct and pay for party primaries."
Recent cases of the Supreme Court of the United States Relating to State Restrictions on the Right to Vote
Carrington v. Rash, 380 U.S. 89, 85 S. Ct. 775, 13 L. Ed. 2d 675 (1965) involved a constitutional provision prohibiting any member of the armed forces who moved his home to Texas during the course of his military service from voting in an election in Texas so long as he was a member of the armed services. The State of Texas in Carrington made arguments very similar to those asserted by Mr. Symm herein. The state argued it could reasonably be assumed that servicemen were mere transients who would not remain within the state for an extended period.
In rejecting the state's arguments, the Supreme Court said:
". . . `Fencing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible. `The exercise of rights so vital to the maintenance of democratic institutions,' Schneider v. State, 308 U.S. 147, 161, 60 S. Ct. 146, 84 L. Ed. 155 cannot constitutionally be obliterated because of a fear of the political views of a particular group of bona fide residents. Yet, that is what Texas claims to have done here . . ."
The Supreme Court in Kramer v. Union Free School District, 395 U.S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969) held it unconstitutional for the State of New York to restrict the right to vote in school elections to owners of real property or parents of children attending schools, relying upon earlier language of Reynolds v. Sims, 377 U.S. 533, 562, 84 S. Ct. 1362, 1381, 12 L. Ed. 2d 506 (1964) wherein it was stated that:
"Since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized."
*1261 While pointing out that the plaintiff, a bachelor and non-property owner who lived with his parents, nevertheless was a member of the community and that the entire community had a crucial interest in the quality and structure of public education, Justice Warren said (395 U.S. at 627, 89 S.Ct. at 1890):
". . . when we are reviewing statutes which deny some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a `rational basis' for the distinctions made are not applicable. See Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 670, 86 S. Ct. 1079, 1083, 16 L. Ed. 2d 169 (1966). The presumption of constitutionality and the approval given `rational' classifications in other types of enactments are based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality."
On the same day that it decided Kramer, supra, the Supreme Court held in Cipriano v. City of Houma, 395 U.S. 701, 89 S. Ct. 1897, 23 L. Ed. 2d 647 (1969) that the City of Houma could not constitutionally restrict the right of all properly qualified voters to vote in elections called to approve the issuance of revenue bonds by a municipal utility.
In Evans v. Cornman, 398 U.S. 419, 90 S. Ct. 1752, 26 L. Ed. 2d 370 (1970), the Supreme Court held that the State of Maryland could not constitutionally deprive residents of a federal reservation or enclave from voting in the State of Maryland because such deprivation constituted a violation of the Equal Protection Clause. Justice Marshall said (398 U.S. at 423, 90 S.Ct. at 1755):
". . . there can be no doubt at this date that `once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.' Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665, 86 S. Ct. 1079, 1081, 16 L. Ed. 2d 169 (1966); see Williams v. Rhodes, 393 U.S. 23, 29, 89 S. Ct. 5, 9, 21 L. Ed. 2d 24 (1968). Moreover, the right to vote, as the citizen's link to his laws and government, is protective of all fundamental rights and privileges. See Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S. Ct. 1064, 1071, 30 L. Ed. 220 (1886); Wesberry v. Sanders, 376 U.S. 1, 17, 84 S. Ct. 526, 534, 11 L. Ed. 2d 481 (1964). And before that right can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny."
In Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972) the Supreme Court held unconstitutional Tennessee's one-year durational residency requirement because such requirements penalize persons who travel from one place to another to establish a new residence during the qualifying period, and thus deny a portion of the citizenry their rights under the Equal Protection Clause of the 14th Amendment.
Mr. Symm's practices here are inconsistent with the philosophy and trend of the foregoing cases, and directly in contravention of the holdings and language in Carrington v. Rash, supra, and Evans v. Cornman, supra.
CONCLUSION
Mr. Symm's forthright admission that he has, for many years, applied the unconstitutional presumption of Whatley establishes that the plaintiff is entitled to relief against Symm. Since Symm has, for a number of years (in the face of advice from the Secretary of State) continued to apply to the students of Prairie View an erroneous rule of law in making his factual determinations of residency, the court believes that a detailed injunction is appropriate and counsel are directed to prepare, and if possible agree upon, the form of an appropriate judgment.
*1262 Plaintiff has not on this record demonstrated that it is entitled to any relief against the County Commissioners of Waller County. While it could be inferred that the Court Commissioners of Waller County have taken official action on the incorrect assumption that virtually none of the students at Prairie View are properly classified as residents of Waller County, this fact is not established with definiteness and precision. In addition, this is not a redistricting case. Plaintiff has not sought redistricting. The question of the proper districting of Waller County is the subject matter of another suit, and thus the court at this time will deny relief against the County Commissioners of Waller County, except that the United States is given leave to reopen the factual record within thirty (30) days, to introduce additional evidence and present additional authorities relating to possible relief against the Waller County Commissioners in this case, if the United States believes that such relief is appropriate.
It appears from this record that the State of Texas, the Secretary of State of the State of Texas, and the Attorney General of Texas have taken all practicable steps within their command to encourage Mr. Symm to apply a correct rule of law and to protect the 14th, 15th and 26th Amendment rights of Prairie View dormitory students; therefore, no relief against the State of Texas, the Secretary of State of the State of Texas, or the Attorney General of Texas would appear appropriate.
The Clerk will forward true copies hereof to counsel of record who will draft and submit judgment accordingly.
APPENDIX
EXHIBIT A
OFFICE OF ASSESSOR-COLLECTOR OF TAXES
Waller County
Hempstead, Texas
Questionnaire Pertaining To Residence
The undersigned, at the request of the Registrar of Waller County, answers the following
questions in support of the application of the undersigned for a voter registration certificate or for
appointment as a Deputy Registrary, as the case may be:
Please print or type your name and address: __________________________________________________________
_____________________________________________________________________________________________________.
Are you a college student? _______________________________________. If so, where do you attend school?
____________________________________________________. How long have you been a student at such school?
________________________________________. Where do you live while in college? ________________________
________________________________. How long have you lived in Texas? ______________________________. In
Waller County? _______________________________. Do you intend to reside in Waller County indefinitely?
__________________________. How long have you considered yourself to be a bona fide resident of Waller
County? ______________________________. What do you plan to do when you finish your college education?
_____________________________________________________________________________________________________.
Do you have a job or position in Waller County? _______________________________. Own any home or other
property in Waller County? __________________________. Have an automobile registered in Waller County?
__________________. Have a telephone listing in Waller County? __________________________. Belong to a
Church, Club or some Waller County Organization other than college related? _________________________.
If so, please name them: _____________________________________________________________________________
_____________________________________________________________________________________________________.
Where do you live when the college is not in session? _______________________________________________.
What address is listed as your home address with the college? _______________________________________.
Give any other information which might be helpful:
______________________________________________________________________________________________________
______________________________________________________________________________________________________
______________________________________________________________________________________________________
*1263 The undersigned understands that the giving of false information to procure the registration of a voter is a felony.
Executed this _________ day of ___________________, 197__.
Signature ______________________________
Must be returned within five days of delivery. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601506/ | 379 N.W.2d 197 (1985)
In the Matter of the ESTATE OF Gerald Charles ANDERSON, a.k.a. Gerald C. Anderson, Deceased.
No. C5-85-871.
Court of Appeals of Minnesota.
December 24, 1985.
Review Denied February 19, 1986.
*198 Richard A. Beens, Anoka, for appellant Mary Ann Reynolds.
Rolf T. Nelson, Robbinsdale, for respondents Sally Ann Sellers, Carol Ann Young, Robert Charles Anderson and Carl Earl Anderson.
Heard, considered and decided by HUSPENI, P.J., and FOLEY and FORSBERG, JJ.
OPINION
HUSPENI, Judge.
Mary Ann Reynolds, appellant and daughter of decedent Gerald Anderson, attempted to admit into probate a second codicil to decedent's will. Respondents, who were decedent's four other children, objected to the probate of this second codicil. An advisory jury found that the second codicil was executed as a result of undue influence exerted by Reynolds. The trial court adopted the advisory jury's finding of undue influence. Reynolds appeals from the order denying probate of the second codicil and the trial court's denial of her motion for amended findings or a new trial. We reverse.
FACTS
In 1981, decedent executed a will leaving his entire estate to his five children in equal shares. Later that same year, decedent executed a codicil to his will which merely changed the designated personal representative.
On April 17, 1984, decedent was found intoxicated and walking about the neighborhood near his home in Osseo, Minnesota. The police took him home and, at his direction, telephoned Reynolds in Oklahoma City. Reynolds told the police to *199 take her father to the hospital. She left later that same evening by car for Minneapolis. Decedent was taken immediately to the Veterans Administration Hospital in Minneapolis.
Reynolds left Oklahoma City without informing any of her brothers or sisters of their father's condition. All respondents also resided in Oklahoma City. Upon arriving in Minneapolis on April 18, Reynolds went to visit her father at the hospital and there learned that he was terminally ill. She then proceeded to take charge of her father's affairs.
On April 19, Reynolds contacted Medard Kaisershot, decedent's attorney who drafted decedent's will and first codicil, and told him that her father wished to deed his house to her. Kaisershot met with decedent that same day in the hospital. Early the next morning Reynolds telephoned Kaisershot and told him that her father would not recover from his illness. Kaisershot returned that afternoon with the second codicil to decedent's will which was executed there in the hospital. Reynolds was not present during either of these two meetings between decedent and his attorney.
The second codicil provided that Reynolds alone receive the homestead. It did not otherwise change the will which provided that all five children share equally in the remainder of decedent's estate. Apart from the homestead, the estate consisted primarily of decedent's coin and currency collections. Decedent valued these collections at around $100,000, although it appears they were in fact worth much less at the time of his death.
On April 23, three days after the codicil was executed, Reynolds arranged for another attorney to prepare a general power of attorney. This power of attorney, executed that same day, gave Reynolds control over decedent's safety deposit boxes which contained his coin and currency collections. Soon thereafter, decedent signed a signature card naming Reynolds the joint owner of his checking account. At no time did she inform her brothers and sisters that she was in Minneapolis, that their father was dying or that she was taking charge of their father's affairs.
Hospital records indicate that decedent was alert and oriented from the time of his admission on April 17 until execution of the codicil on April 20. Kaisershot testified that decedent recognized him immediately when he entered his hospital room on April 19. Decedent appeared to be alert throughout Kaisershot's explanation of the tax advantages of conveying the house by will rather than by a quit claim deed. When Kaisershot asked decedent whether he wanted Reynolds alone to have the entire homestead, decedent responded "yes" without hesitation. When Kaisershot returned to the hospital on April 20, decedent again confirmed that he intended Reynolds alone to get the house. Decedent then signed the codicil although he probably could not read it due to his poor eyesight. Decedent's physical condition progressively worsened and he remained in the hospital until he died on May 14, 1984.
In his prime, decedent was a strong-willed man with numerous avocations. Although his physical activity was restricted in his final years, he continued to evidence his strength of will. Barely three months before his death, he angrily confronted his son who, while visiting decedent, had stayed out too long without first informing his father. Even during his last days in the hospital, he would refuse to take his medicine if he did not like the taste.
During the last five years of his life, decedent saw Reynolds more often than his other children. She visited decedent in Minnesota once a year, whereas only one of her siblings visited him in the last five years and that visit was incidental to a funeral one of her brothers was attending. During his last two visits to Oklahoma, decedent stayed at Reynolds' house.
Unlike her brothers and sisters, Reynolds did not criticize or exclude her father for his sometimes crude and inappropriate manner of speaking. She would purchase alcohol for him if he requested and, although she did tell him he should quit *200 drinking, she did not insist that he seek alcohol treatment as did her brothers and sisters. In addition, an acquaintance of decedent testified that decedent had referred to Reynolds as his "number one child."
ISSUE
Did the trial court err in finding that decedent's second codicil was executed as a result of undue influence by appellant?
ANALYSIS
This court will not set aside a trial court's findings unless they are clearly erroneous. Minn.R.Civ.P. 52.01. A trial court's finding will be deemed clearly erroneous only if "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." In re Estate of Balafas, 293 Minn. 94, 96, 198 N.W.2d 260, 261 (1972) (quoting United States v. Oregon State Medical Society, 343 U.S. 326, 339, 72 S. Ct. 690, 698, 96 L. Ed. 978 (1952)).
Under Minn.Stat. § 524.3-407 (1984), contestants of a will have the burden of establishing undue influence. It is well settled that the will contestant must establish undue influence by clear and convincing proof. In re Estate of Pundt, 280 Minn. 102, 104, 157 N.W.2d 839, 841 (1968). Clear and convincing proof will be shown where the truth of the facts asserted is highly probable. Weber v. Anderson, 269 N.W.2d 892, 895 (Minn.1978).
In order for a court to find that someone exerted undue influence:
[t]he evidence must go beyond suspicion and conjecture and show, not only that the influence was in fact exerted, but that it was so dominant and controlling of the testator's mind that, in making the will, he ceased to act on his own free volition and became a mere puppet of the wielder of that influence.
In re Estate of Reay, 249 Minn. 123, 126-27, 81 N.W.2d 277, 280 (1957) (footnote omitted).
Direct evidence of undue influence is not required and is usually unobtainable because the influence is rarely exercised openly in the presence of others. In re Estate of Olson, 176 Minn. 360, 365, 223 N.W. 677, 679 (1929). Therefore, the circumstantial evidence must be sufficient to indicate undue influence. Id.
Among the factors important as bearing upon the fact of undue influence are the opportunity to exercise it, active participation in the preparation of the will by the party exercising it, a confidential relationship between the person making the will and the party exercising the influence, disinheritance of those whom the decedent probably would have remembered in his will, singularity of the provisions of the will, and the exercise of influence or persuasion to induce him to make the will in question.
In re Estate of Wilson, 223 Minn. 409, 413, 27 N.W.2d 429, 432 (1947).
After thoroughly reviewing the record in this case, we are left with the definite and firm conviction that the trial court mistakenly found that respondents satisfied their burden of establishing by clear and convincing proof that Reynolds exerted undue influence upon decedent. We do not consider that respondents presented sufficient evidence to meet their heavy burden of proof.
Reynolds did have the opportunity to exert undue influence while she was visiting her father in the hospital around the time when he executed the codicil. However, opportunity alone will not sustain a finding of undue influence. In re Estate of Holden, 261 Minn. 527, 113 N.W.2d 87 (1962). In this case, there is no conclusive evidence that anything more than the opportunity for undue influence existed.
Reynolds did not actively participate in the preparation of the codicil. Although she arranged the meetings between her father and Kaisershot, she was not present during these meetings. Kaisershot was not an attorney selected by Reynolds. He was her father's attorney of several years' standing. There was no evidence that *201 Reynolds instructed her father to execute a deed or a codicil. In addition, Kaisershot testified that decedent asserted that he wanted Reynolds alone to get the homestead.
Respondents argue that Reynolds' confidential relationship with her father is indicative of undue influence. Although a confidential relationship may be a factor indicating undue influence, any evidence of intimacy or affection between blood relatives "negatives rather than proves undue influence." In re Estate of Marsden, 217 Minn. 1, 11-12, 13 N.W.2d 765, 771 (1944). It is apparent that there was such intimacy and affection between Reynolds and decedent. Reynolds came to Minnesota each year for extended visits with decedent and decedent called her his "number one child." Therefore, the close relationship between Reynolds and decedent tends to refute a finding of undue influence.
Although decedent devised the bulk of his estate to Reynolds, he did not disinherit his other children. All five children shared equally in the remainder of the estate, including the coin and currency collections which decedent valued at $100,000. Therefore, decedent believed he was leaving a substantial amount to each of his other children. Decedent's belief that he adequately provided for his other children, coupled with the substantial evidence that Reynolds was his favorite child, lead us to conclude that decedent's division of his estate was not unusual or unexplainable. Hence, decedent's division of his estate does not indicate the exercise of undue influence upon him. Accord In re Estate of Meehan, 220 Minn. 1, 5, 18 N.W.2d 781, 783 (1945).
Respondents argue that Reynolds' failure to tell them about their father's illness indicates that she influenced him to execute the codicil. Although Reynolds may have behaved suspiciously, respondents offered no evidence of how Reynolds interacted with her father around the time the codicil was executed. Further, the evidence indicates that decedent, although physically weak, was alert and able to communicate while in the hospital. He also had enough mental vigor to refuse medicine he did not like and to assert that Reynolds should get the house. Consequently, any conclusion drawn from Reynolds' purported secrecy is mere suspicion and conjecture and does not establish undue influence. See In re Estate of Reay, 249 Minn. at 126-27, 81 N.W.2d at 280.
Upon a review of all the evidence, we believe that respondents did not meet their burden of establishing undue influence by clear and convincing proof. Among all the factors tending to show undue influence, respondents established only that Reynolds had an opportunity to exert undue influence. Absent evidence of some of the other factors, opportunity alone cannot sustain a finding of undue influence. See In re Estate of Holden; In re Estate of Reay; In re Estate of Meehan; In re Will of Hess, 48 Minn. 504, 51 N.W. 614 (1892). We do not lightly overturn trial court findings. However, we cannot disturb the presumed validity of a duly executed will or codicil unless the opponent offers clear and convincing proof of its invalidity.
DECISION
The trial court erred in finding that decedent's second codicil was executed as a result of undue influence by the appellant.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601473/ | 869 So. 2d 738 (2004)
Barbara JOSEPH and Peggy Ann Aronowitz, Appellants,
v.
Lena CHANIN, Appellee.
No. 4D03-2009.
District Court of Appeal of Florida, Fourth District.
April 7, 2004.
*739 Jay L. Kauffman, of Herb & Mednick, P.A., Boca Raton, for appellants.
H. Michael Muniz, of Sachs, Sax & Klein, Boca Raton, for appellee.
MAY, J.
Personal jurisdiction, or lack thereof, is the focus of this appeal. The defendants, Barbara Joseph and Peggy Ann Aronowitz, appeal the trial court's order denying their motion to dismiss count three (conversion) for lack of personal jurisdiction. The plaintiff, Lena Chanin, cross-appeals that part of the trial court's order granting the motion to dismiss for lack of personal jurisdiction as to counts one and two (unjust enrichment and fraudulent conveyances). We affirm in all respects.
The plaintiff lived with the defendants' father for nine years. He passed away in November 2001. She filed a verified complaint alleging counts for unjust enrichment *740 and fraudulent conveyances. The complaint alleged that during their relationship, she had given the defendants' father money to deposit in a joint account for living expenses, and that he wrongfully deposited the money into a savings account, safe deposit box, and two certificates of deposit for the benefit of the defendants. Neither defendant is a resident of the State of Florida; however, they both traveled to Florida to close the savings account and safe deposit box, and cash the CDs after their father's death.
The trial court held a hearing on the defendants' motion to dismiss for lack of personal jurisdiction and entered an order dismissing the verified complaint without prejudice. The plaintiff filed an amended verified complaint. This complaint alleged three counts: (1) unjust enrichment, (2) fraudulent conveyances, and (3) conversion. The defendants once again moved to dismiss for lack of personal jurisdiction. This time, the trial court granted the motion as to counts one and two (unjust enrichment and fraudulent conveyances), but denied the motion as to count three (conversion).
Florida has established a two-prong test for determining jurisdiction over the person. Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla.1989). The court must first determine whether the plaintiff alleged sufficient facts to comply with Florida's long-arm statute, section 48.193, Florida Statutes (2001). Next, the court must determine if the defendant had sufficient minimum contacts with the State of Florida to satisfy due process.
The plaintiff alleged personal jurisdiction over the defendants as to counts one and two on the basis that they were "[o]perating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state." § 48.193(1)(a), Fla. Stat. (2001). The plaintiff argues that closing the savings account and safe deposit box and cashing the CDs constitute "carrying on a business or business venture." Relying on Silver v. Levinson, 648 So. 2d 240 (Fla. 4th DCA 1994), the plaintiff suggests that if an isolated transaction by a nonresident can be sufficient to comply with due process, surely four transactions must satisfy due process. We disagree.
It is not necessarily the number of transactions, but rather the nature and extent of the transaction(s) that determines whether a person is "carrying on a business or business venture" within the state. Id. Here, while the defendants executed four transactions, they were not of a nature or extensive enough to constitute the "carrying on a business or business venture." The trial court correctly found the plaintiff's allegations inadequate to establish personal jurisdiction over the defendants as to counts one and two.
The trial court denied the motion to dismiss as it related to count three for conversion. In that count, the plaintiff alleged the defendants committed a tortious act in Florida by converting funds to which the plaintiff had a right of possession. These allegations satisfy the elements necessary to state a cause of action for conversion, defined as an act of dominion wrongfully asserted over another's property inconsistent with ownership. Warshall v. Price, 629 So. 2d 903 (Fla. 4th DCA 1993).
In Silver, this court held that if the allegations are sufficient to establish that a tort was committed in Florida, they are also sufficient to establish personal jurisdiction over the person. Because the issue of personal jurisdiction was decided on a motion to dismiss, the trial court was restricted to the four corners of the pleadings. Bell v. Indian River Mem'l Hosp., *741 778 So. 2d 1030 (Fla. 4th DCA 2001). The trial court correctly found that the plaintiff's amended verified complaint established personal jurisdiction for conversion.[1]
AFFIRMED.
KLEIN J. and HOROWITZ, ALFRED J., Associate Judge, concur.
NOTES
[1] We recognize that the trial court subsequently found the same amended verified complaint failed to state a cause of action for conversion and dismissed the complaint without prejudice. Not only is that order a non-final, non-appealable order, but it now conflicts with this court's holding. See D'Asaro v. Fla. Dep't. of Envtl. Prot., 846 So. 2d 636 (Fla. 2003). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601466/ | 869 So.2d 667 (2004)
Gayle Appel GOSSELIN, Appellant,
v.
Robert GOSSELIN, Jr., Appellee.
No. 4D03-2142.
District Court of Appeal of Florida, Fourth District.
March 31, 2004.
Nancy Little Hoffman of Nancy Little Hoffman, P.A., Pompano and Robert J. Moraitis of Robert J. Moraitis, P.A., Fort Lauderdale, for appellant.
Jeffrey P. Wasserman of Shapiro, Blasi & Wasserman, P.A., Boca Raton, for appellee.
TAYLOR, J.
Gayle Appel Gosselin (Wife) appeals an order striking her motion for attorney's fees pursuant to Florida Rule of Civil Procedure 1.525. We reverse, holding that Rule 1.525 does not apply to post-decretal orders in marital dissolution actions.
The parties to this marital dissolution action entered into a marital settlement agreement, which was incorporated into a final judgment of dissolution dated March 11, 1999. Neither document addressed attorney's fees.
Five months later, on August 3, 1999, Robert Gosselin, Jr. (Husband) moved to modify the child support downward and change the visitation schedule.
*668 Over a period of several months, the Wife filed numerous motions for contempt, for protective order, and to compel discovery. In all but one motion, she requested attorney's fees.
On February 22, 2002, the Wife moved for an award of attorney's fees and costs in connection with all activity since the final order of dissolution. Her motion chronicled the post-dissolution proceedings and the numerous orders which had been entered granting the Wife's motions, some of which specifically reserved attorney's fees awardable to the Wife.
Thereafter, on September 5, 2002, the parties entered into a settlement stipulation wherein the Husband dismissed his petition to modify child support and the parties agreed on the amount of child support arrearages. The stipulation did not address the Husband's petition for modification of visitation. The court entered an order adopting the stipulation and specifically reserving the trial court's jurisdiction to hear the Wife's claims for attorney's fees and costs and the Husband's visitation issues.
On December 13, 2002, the Wife filed an amended motion for attorney's fees, essentially repeating the matters contained in her February 22 motion and including additional allegations for fees pursuant to Rosen v. Rosen, 696 So.2d 697 (Fla.1997).
The Husband moved to strike the amended motion for attorney's fees and costs, alleging that it was barred by Florida Rule of Civil Procedure 1.525, because it was not filed within 30 days of the September 5, 2002 order approving the settlement stipulation.
The trial court concluded that the "conclusion of a case" is equivalent to a final judgment and that the order approving the settlement stipulation on child support was the conclusion of the case. Since the motion was not filed within 30 days of that order, the court struck the motion.
Because the trial court's determination that the Wife's amended motion for attorney's fees was barred by Florida Rule of Civil Procedure 1.525 is a legal determination, we review it de novo. See Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000).
Rule 1.525 was adopted, effective January 1, 2001. It provides:
Any party seeking a judgment taxing costs, attorney's fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.
This rule was adopted to establish a bright-line rule governing timeliness of post-trial motions for costs and attorney's fees. Gulf Landings Ass'n, Inc. v. Hershberger, 845 So.2d 344, 346 (Fla. 2d DCA 2003).
Rule 1.525 applies to marital dissolution actions by virtue of Florida Family Law Rule 12.020, which makes the Rules of Civil Procedure applicable in family law cases except where the Family Law Rules conflict. Wentworth v. Johnson, 845 So.2d 296, 298 (Fla. 5th DCA 2003). In Wentworth, the fifth district affirmed the trial court's order disallowing attorney's fees for failure to comply with Rule 1.525. However, Wentworth dealt with a plenary final judgment of dissolution. It did not involve the sort of post-decretal orders which are at issue in this case.
Both parties have focused their attention on whether the order approving the stipulation was a "judgment" within the meaning of the rule. The Wife argues that, because the stipulation and order resolved only the child support issue and left the child visitation issue pending, the order was not a final judgment for purposes of starting the rule's thirty-day clock. Citing to Grafman v. Grafman, 488 So.2d 115, *669 118 (Fla. 3d DCA 1986), she contends that all orders entered prior to a final order resolving a modification proceeding must be considered non-final orders.
Whether a post-decretal order is final or non-final is a source of confusion, even among experts in the field. See Remington v. Remington, 705 So.2d 920, 923 (Fla. 4th DCA 1997); Real Estate Corp. of Fla., N.V. v. Dawn Developers, Inc., 644 So.2d 145 (Fla. 5th DCA 1994); Phillip J. Padovano, Florida Appellate Practice § 22.14 (2003).
In Clearwater Federal Savings and Loan Ass'n v. Sampson, 336 So.2d 78, 79 (Fla.1976), the court stated:
An interlocutory order entered after judgment, post decretal, order, (sic) is not to be confused with one entered during the pendency of the proceedings before final judgment.... Post-decretal orders are not true interlocutory orders, and perhaps the term `interlocutory' is a misnomer. Where an order after judgment is dispositive of any question, it becomes a final post decretal order. To the extent that it completes the judicial labor on that portion of the cause after judgment, it becomes final as to that portion and should be treated as a final judgment....
(citation omitted).
In this case, many of the orders addressed in the amended motion for fees and costs were final orders under Sampson for purposes of filing an appeal. However, it does not necessarily follow that each of these orders must be deemed a "judgment" within the meaning of Rule 1.525. That rule contemplates that a single motion for fees must be filed within thirty days of what is typically the single judgment in a case. The drafters of Rule 1.525 likely never contemplated that it would be applied to post-decretal orders in marital dissolution cases. In such cases, especially where minor children are involved, a final judgment of dissolution will, as here, typically result in several post-decretal orders accumulating in short order. It would seem both awkward and inconsistent with the general practice in this area to require separate attorney's fee motions to be brought each time a post-decretal order issues.
In this regard, we look to the language of section 61.16, Florida Statutes, which governs attorney's fees in dissolution actions. This section states that the court "may from time to time" award fees to a necessitous party. We note that the "bright-line" purpose of Rule 1.525 to "resolve the uncertainty surrounding the timing of these post trial motions"[1] will grow dimmer if parties are routinely required to decide whether a particular post-decretal order is sufficiently final to constitute a separate judgment under the rule.
Instead, we adopt a bright-line construction consistent with both the simplifying purposes of Rule 1.525 and the practice under Fla. Stat. section 61.16, by holding that Rule 1.525 does not apply to post-decretal orders in marital dissolution actions. In such cases, so long as a party seeks fees within a reasonable time after the post-decretal work was performed, such a motion will be timely filed.
We reverse the order striking the Wife's motion for attorney's fees and costs and remand with directions that the court entertain the Wife's motion.
REVERSED and REMANDED.
FARMER, C.J., and GUNTHER, J., concur.
NOTES
[1] Diaz v. Bowen, 832 So.2d 200, 201 (Fla. 2d DCA 2002). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601469/ | 869 So.2d 1124 (2003)
CENTRAL RESERVE LIFE INSURANCE COMPANY
v.
Joyce FOX.
1011121.
Supreme Court of Alabama.
June 27, 2003.
*1125 Alfred F. Smith, Jr., and Charles K. Hamilton of Bainbridge, Mims, Rogers & Smith, LLP, Birmingham, for appellant.
Sidney W. Jackson III and Mathew B. Richardson of Jackson, Foster & Graham, L.L.C., Mobile, for appellee.
JOHNSTONE, Justice.
Central Reserve Life Insurance Company appeals the order by the trial court denying its motion to compel Joyce Fox to arbitrate her claims against Central Reserve. We reverse and remand.
On November 11, 1999, Joyce Fox applied for a health insurance policy with Central Reserve. The application signed by Fox contains the following provision:
"C. By signing below, I acknowledge that:
"....
"(iii) Any disputes arising under the Policy are subject to an appeals procedure, including arbitration, which may be binding, depending on state law."
On December 1, 1999, Central Reserve issued and delivered a health insurance policy to Fox. The policy includes an "Alabama Coverage Rider," which provides, in pertinent part:
"ADMINISTRATIVE REMEDIES
"ANY CONTROVERSY ARISING OUT OF OR RELATING TO THE POLICY, SUCH AS DISPUTES ABOUT THE DENIAL OF A CLAIM, ARE SUBJECT TO CERTAIN ADMINISTRATIVE PROCEDURES THAT MUST BE EXHAUSTED BY THE INSURED PERSON (INSURED) PRIOR TO THE INSURED PURSUING ANY OTHER REMEDY THAT MAY BE AVAILABLE. THESE REQUIRED ADMINISTRATIVE REMEDIES ARE (1) APPEAL OF DECISION; AND (2) BINDING ARBITRATION.
"1. APPEAL OF DECISION
"APPEALTECHNICAL MANAGER (TM)
"A. IF CRL [(Central Reserve Life)] MAKES A DECISION WHICH THE INSURED WISHES TO APPEAL, A WRITTEN REQUEST MUST BE SENT WITHIN SIXTY (60) DAYS OF THE DATE OF CRL'S WRITTEN NOTICE TO THE INSURED TO:
*1126 "APPEALTECHNICAL MANAGER
"CENTRAL RESERVE LIFE INSURANCE COMPANY
"17800 ROYALTON ROAD
"STRONGSVILLE, OHIO XXXXX-XXXX
"....
"2. ARBITRATION
"AFTER EXHAUSTION OF THE APPEAL OF DECISION PROCEDURES, ANY DISPUTE ARISING OUT OF OR RELATED TO THE POLICY THAT REMAINS SHALL BE SETTLED BY ARBITRATION IN ACCORDANCE WITH APPLICABLE FEDERAL OR STATE LAWS AND THE INSURANCE DISPUTE RESOLUTION PROCEDURES, AS AMENDED, AND ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
"ALL ARBITRATION PROCEEDINGS WILL BE CONDUCTED IN THE COUNTY OF RESIDENCE OF THE INSURED UNLESS ANOTHER LOCATION IS MUTUALLY AGREED UPON BY BOTH PARTIES.
"CRL WILL PAY THE COSTS OF ARBITRATION SUCH AS THE FEES ASSESSED BY THE AMERICAN ARBITRATION ASSOCIATION AND ANY FEES PAID TO THE ARBITRATOR. ALL COSTS FOR REPRESENTATION OF THE INSURED, SUCH AS ATTORNEYS' FEES, WILL BE THE SOLE RESPONSIBILITY OF THE INSURED."
On July 3, 2001, Fox sued Central Reserve for breach of contract and for negligent hiring, training, and monitoring of its employees. She alleged that Central Reserve wrongfully refused to pay hospital and doctor expenses she incurred during her hospitalization from December 10, 1999 through December 14, 1999. On August 23, 2001, Central Reserve moved to compel Fox to comply with her insurance policy by submitting her claims to arbitration. In support of this motion, Central Reserve submitted evidentiary material.
On December 4, 2001, Fox opposed the motion to compel arbitration and submitted evidentiary materials. She claimed that Central Reserve had not shown that the contract substantially affected interstate commerce. She further claimed that Central Reserve had not complied with the condition precedent of sending her written notice of the decision to deny her claim. In response to Fox's opposition, Central Reserve filed an affidavit by Peggy St. Clair, a "Senior Claim Technician for Central Reserve." St. Clair stated that Central Reserve was a corporation organized under the laws of the State of Ohio. She stated that Central Reserve "ha[d] its principal place of business in the State of Ohio." St. Clair stated that the monthly premium for Fox's policy was automatically deducted from Fox's Alabama bank account and was transferred to the Ohio bank account of Central Reserve. She stated that Fox and her husband had on occasion called the Ohio offices of Central Reserve to inquire about the status of various claims. St. Clair stated that Central Reserve had mailed "numerous different materials to Mrs. Fox at her address in Alabama, including the insurance certificate, riders to the certificate, correspondence, and Explanations of Benefits, or `EOB's.'" St. Clair further stated:
"Two different providers ... submitted claims totaling $12,481.62 for services *1127 rendered to Mrs. Fox [from December 10 through December 14, 1999]. Pursuant to the provisions of Mrs. Fox's insurance certificate, CRL has paid a total of $6,165.07 in benefits on these claims.
"5. CRL mailed an EOB to Mrs. Fox for each claim it processed, which showed, among other things, the total amount of the claim from the particular provider, the amount of benefits paid by CRL on the claim, the co-pay and deductible amounts, if any, and the balance for which Mrs. Fox would be responsible. Copies of the EOB's mailed relating the claims for benefits arising out of Mrs. Fox's treatment in December 10-14, 1999 are attached to this affidavit as Exhibits A-C. The attached EOB's were originally mailed to Mrs. Fox on November 11, 2000, June 2, 2001, and June 19, 2001.
"....
"... [T]he insured is responsible for initiating any appeal by making a written request within 60 days of the date of CRL's written notice to the insured of the decision. Based on my review of CRL's records, CRL has no record of Mrs. Fox ever making such a request within 60 days of the date of any Explanation of Benefits...."
After a hearing, the trial court summarily denied the motion to compel arbitration.
The denial of the motion to compel arbitration cannot be justified on the ground that the contract did not evidence a transaction that substantially affected interstate commerce in this case. The evidence submitted by Central Reserve establishes that the transaction did substantially affect interstate commerce. Mason v. Acceptance Loan Co., 850 So.2d 289 (Ala.2002), and Southern United Fire Ins. Co. v. Knight, 736 So.2d 582 (Ala.1999). See also Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003). Therefore, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., governs this case and preempts the Alabama statute, § 8-1-41(3), Ala.Code 1975, prohibiting specific enforcement of predispute arbitration agreements.
"`[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.'" AT & T Techs., Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)). Accord Ex parte Cain, 838 So.2d 1020, 1026 (Ala.2002), and Ex parte Lovejoy, 790 So.2d 933, 937 (Ala.2000). "`When deciding whether parties agreed to arbitrate a certain matter (including arbitrability) courts generally ... should apply ordinary state-law principles that govern the formation of contracts.'" Oakwood Mobile Homes, Inc. v. Barger, 773 So.2d 454, 459 (Ala.2000) (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)).
"If a contract is unambiguous on its face, there is no room for construction and it must be enforced as written." Southland Quality Homes, Inc. v. Williams, 781 So.2d 949, 953 (Ala.2000). "`Whether a provision in a contract is a condition precedent depends, not upon formal words, but upon the intent of the parties, to be deduced from the whole instrument.' " Bank of Brewton, Inc. v. International Fid. Ins. Co., 827 So.2d 747, 752 (Ala.2002) (quoting Fidelity & Cas. Co. of New York v. DeLoach, 280 Ala. 497, 502, 195 So.2d 789, 793 (1967)). "Ordinarily, `failure to comply with conditions precedent... prevents an action by the defaulting party to enforce the contract.'" *1128 UNUM Life Ins. Co. of America v. Ward, 526 U.S. 358, 369, 119 S.Ct. 1380, 143 L.Ed.2d 462 (1999) (quoting 14 Cal. Jur.3d, Contracts § 245, p. 542 (3d ed.1974)).
The dispositive issue on appeal is whether the "Alabama Coverage Rider" imposes a condition precedent on the right of Central Reserve to arbitrate and whether a failure by Central Reserve to satisfy the alleged condition precedent renders the arbitration agreement unenforceable. Fox relies on the language in the rider which reads, in pertinent part:
"A. IF CRL [Central Reserve Life] MAKES A DECISION WHICH THE INSURED WISHES TO APPEAL, A WRITTEN REQUEST MUST BE SENT WITHIN SIXTY (60) DAYS OF THE DATE OF CRL'S WRITTEN NOTICE TO THE INSURED TO...."
This language is not a condition precedent on the right to arbitrate but is, rather, a statement of a deadline for Fox's right and requirement to appeal a decision by Central Reserve. The Explanations of Benefits ("EOBs") mailed to Fox by Central Reserve reveal on their faces that and why Central Reserve did or did not pay certain fees and expenses incurred by Fox. The EOBs constituted "decision[s]" by Central Reserve which Fox could have appealed. While Central Reserve does have another form different from an EOB for notifying an insured of a decision on a claim, this other form is designed only for a total denial of the claim. This different form does not eliminate the status of an EOB as notice of a decision denying a claim in whole or in part.
The "Alabama Coverage Rider" expressly imposes on the insured's right "to pursu[e] any other remedy that may be available" the conditions precedent that the insured appeal the decision and then, if not satisfied, arbitrate the dispute. While the absence of a written notice of a decision would forestall the running of the insured's 60 days for requesting the appeal and would thereby spare the insured the stricture of that deadline, the absence of a written notice of a decision would not eliminate either the appeal or the arbitration as a condition precedent to the insured's right to "pursu[e] any other remedy that may be available."
Regardless of whether Fox has missed her deadline for appeal, she has not satisfied either condition precedent to her "pursuing any other remedy that may be available." However, by moving and insisting that Fox's claim be arbitrated, Central Reserve has waived the condition precedent that she appeal. See Shears v. All States Life Ins. Co., 242 Ala. 249, 257, 5 So.2d 808, 815-16 (1942).
Accordingly, we hold that the arbitration agreement in the "Alabama Coverage Rider" is enforceable against Fox. Consequently, we hold that the trial court erred in denying the motion of Central Reserve to compel arbitration. Therefore, we reverse the order by the trial court, and we remand the cause for entry of an order consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HOUSTON, SEE, LYONS, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.
MOORE, C.J., dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601250/ | 391 So.2d 1120 (1980)
STATE of Louisiana
v.
Jessie McMAHON.
No. 67531.
Supreme Court of Louisiana.
November 10, 1980.
Rehearing Denied December 15, 1980.
*1122 John B. Knight, Jr., Winnsboro, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Lowen B. Loftin, Dist. Atty., E. Rudolph McIntyre, Asst. Dist. Atty., for plaintiff-appellee.
DIXON, Chief Justice.
The defendant was charged with second degree murder in connection with the fatal shooting of her husband. The jury returned a verdict of guilty of manslaughter, and the trial judge sentenced defendant to fifteen years at hard labor. Ten specifications of error are urged on this appeal.
On the afternoon of August 26, 1978 the defendant and two of her friends, Peggy Spears and Rosemary McMahon, attended a birthday party for a six year old child. The group returned to the defendant's home that evening, and retired to a bedroom to watch television and prepare themselves to go out again later that night. Shortly thereafter Robert McMahon, the defendant's husband, returned home in the company of Verdastine Harris, his niece, and her husband Earl Harris. When the defendant's husband learned of her plans for that evening, he told her that he did not want her to leave the house. The testimony indicates that the defendant retorted "she was going out somewhere if she had to go out and sit on the front steps." Robert McMahon then left the bedroom. Rosemary McMahon and Verdastine Harris, who remained in the bedroom, testified that they saw the defendant transfer a gun to her purse at this time. Verdastine Harris and Peggy Spears then left the bedroom as well. Moments later Robert McMahon returned to the bedroom with a telephone, and Rosemary McMahon began to speak to the caller. When her conversation was completed she walked out of the room, leaving the defendant and her husband alone together. A single shot was heard, and the four witnesses rushed into the bedroom in time to see the victim, Robert McMahon, slumping across the bed. The defendant was standing at the foot of the bed with a gun in her hand. Earl Harris approached the defendant and asked her for the gun. She is said to have replied, "Stand back or I'll shoot you too." Nevertheless, Harris continued to approach the defendant and eventually recovered the weapon after wrestling her to the bed. A passing motorist was flagged down and the victim was taken to a hospital emergency room where he died thirty to forty-five minutes later.
Assignments of Error Nos. 1, 6, 7, 9 and 10
The first set of errors assigned by defendant involves the application and constitutionality of the second degree murder statute in effect at the time the homicide occurred.[1] The pertinent part of R.S. 14:30.1 essentially provided that second degree murder was the killing of a human being with specific intent but without the aggravating circumstances listed in C.Cr.P. 905.4. The argument is made that several of the enumerated aggravating circumstances are so vague and indefinite as to *1123 render the entire statute unconstitutional. As a general rule a party who has not been adversely affected by a law has no standing to challenge its constitutionality. State v. Brown, 389 So.2d 48 (La.1980). Although the defendant in this case was convicted of manslaughter rather than second degree murder, the two offenses are interrelated, since manslaughter is defined in part as a homicide "which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder) ..." R.S.14:31. If the second degree murder statute is constitutionally defective, defendant conceivably could claim to have been aggrieved by it, despite her conviction for manslaughter.
In State v. Payton, 361 So.2d 866 (La.1978), this court held certain provisions of C.Cr.P. 905.4 to be unconstitutional in connection with the first degree murder statute; however, the validity of the remaining provisions was left intact. No constitutional infirmity was found with the second degree murder statute, under which the aggravating circumstances must be absent. In State v. Ford, 375 So.2d 641 (La. 1979), the defendant was charged with first degree murder but was convicted of second degree murder. The court found that the defendant had not been prejudiced by any constitutional defect in the first degree murder statute, since the jury's verdict necessarily rejected the presence of any aggravating circumstances. In the present case, the constitutional merit of the first degree murder statute is not at issue; and, because the second degree murder statute required the absence rather than the presence of aggravating elements, it is unnecessary to discuss any possible vagueness in those elements.
Defendant also complains that the trial judge committed error by failing to instruct the jury as to all the elements of second degree murder. Defendant's contention is that the jury should have been informed of the aggravating circumstances listed in C.Cr.P. 905.4, presumably so the jury could determine that these circumstances were in fact absent. This contention is without merit. No conceivable prejudice to the defendant could have resulted through the failure to charge the jury to ascertain whether the homicide was not aggravated. In any event, defendant cannot claim to be aggrieved by the omission, since she was convicted of the lesser offense of manslaughter rather than second degree murder.
These assignments of error are without merit.
Assignments of Error Nos. 2 and 10
The defendant's trial had originally been scheduled for April 2, 1979. Due to a backlog, the state was unable to try the case by the time the petit jury venire was dismissed on April 6. The state did not move for a continuance, but was later granted an order scheduling defendant's trial for July 23, 1979.
The defendant was not in custody during the three and one-half month interim and never asserted her right to a speedy trial during that time. La.Const. Art. 1 § 16; C.Cr.P. 701. No complaint was made of the state's delay until the date of trial. Under these circumstances there was no abridgement of the right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Reaves, 376 So.2d 136 (La.1979); State v. Alfred, 337 So.2d 1049 (La.1976). To the contrary, it would appear that the defendant acquiesced in the delay. State v. Overton, 337 So.2d 1058 (La.1976).
These assignments lack merit.
Assignments of Error Nos. 4 and 10
During trial, Willie Earl McMahon (the son of the victim and the husband of Rosemary McMahon) was called to testify by the state. He recounted an incident which occurred in the home of the victim and the defendant on August 25, 1978. Defendant and the victim were arguing, and defendant told the victim, Robert McMahon, "that she was gonna kill Robert about Elaine." The following exchange then took place:
"Q Did you see Jessie after Robert left?
*1124 A Yeah, she stayed there for a while and then she took her pistol and put it in her purse and left out and the next morning Peggy told me that she went looking for him to kill him." (Emphasis added).
Defense counsel immediately objected to the inadmissible hearsay nature of this testimony. R.S. 15:434. Pursuant to the objection, the trial judge admonished the jury to "disregard the last comment that he made." C.Cr.P. 771. Defense counsel complained that the admonishment could not cure the prejudice caused by the allegation that defendant had intended to kill her husband on a prior occasion, and requested a mistrial. C.Cr.P. 775. While it is admitted that the remark was entirely gratuitous, and not solicited or expected by the prosecution, it is nevertheless necessary to determine whether this inadmissible testimony might have prejudiced the defendant's right to a fair trial. State v. Foss, 310 So.2d 573 (La.1975).
Willie McMahon's testimony that Peggy [Spears?] told him that defendant went looking for Robert McMahon to kill him was inadmissible hearsay and highly prejudicial. The testimony indicating that defendant had intended to kill her husband on a prior occasion supported the state's contention that the homicide was intended; the strongest argument of the defense was that the shooting was accidental. The hearsay statement, if believed, tended to negate that defense. By returning a manslaughter verdict, the jury obviously rejected the defense that the shooting was accidental. On its face, the argument that the testimony incurably prejudiced the defendant's case is sound.
The admission of hearsay testimony may infringe upon the right of an accused under the Sixth Amendment "to confront the witnesses against him." See also La. Const. Art. 1 § 16 (1974). In this case, however, Peggy Spears actually testified for the defendant, and denied both making the statement and hearing defendant threaten the victim. Under these circumstances the hearsay issue does not take on constitutional proportions, since the right of confrontation was not abridged.
Instead, the question here is whether the inadmissible testimony made it "impossible for the defendant to obtain a fair trial" in spite of the admonition, C.Cr.P. 771, 775, and whether the trial judge's refusal to order a mistrial "probably resulted in a miscarriage of justice ..." C.Cr.P. 921; State v. Herman, 304 So.2d 322 (La.1974); State v. Michelli, 301 So.2d 577 (La.1974).
The record as a whole minimizes the damaging nature of the witness' statement. Immediately before the hearsay testimony was given, Willie McMahon testified that he had overheard the defendant telling her husband that she was going to kill him "over Elaine," with whom she suspected he was romantically involved. This threat, which was properly before the jury, constituted evidence of defendant's prior intent to kill her husband. The hearsay testimony merely corroborated the evidence of this prior threat. Immediately after the hearsay statement was made, the trial judge admonished the jury to disregard it. When the conduct constituting error, as here, does not fit within the mandatory mistrial provisions of C.Cr.P. 770, the trial judge is given some discretion to determine whether the defendant was so prejudiced that a fair trial is impossible, or whether the admonition is sufficient to assure a fair trial. C.Cr.P. 771; State v. Domangue, 350 So.2d 599 (La.1977). The court was obviously satisfied that the admonition was adequate. In addition, the alleged declarant, Peggy Spears, who was later called by the defendant to testify, completely denied the truth of Willie McMahon's statement. The defendant herself testified in detail as to the allegedly accidental nature of the shooting, to which there were no eyewitnesses. Under these circumstances we cannot find that the unsolicited hearsay testimony, followed by a prompt admonition from the trial judge, made it impossible for the defendant to receive a fair trial. The remedy of mistrial is not justified when an admonition is sufficient to preserve a defendant's due process rights. State v. Williams, 375 So.2d 364 (La.1979); State v. Wesley, 347 So.2d 217 (La.1977).
*1125 These assignments of error are without merit.
Assignments of Error Nos. 8 and 10
When the jurors retired for deliberations, they had not been instructed as to the number required to reach a verdict. Because second degree murder and manslaughter are necessarily punished by imprisonment at hard labor, ten of twelve jurors are required to concur on the verdict. La.Const. Art. 1 § 17 (1974); C.Cr.P. 782.
The record indicates that the jury was retired at 4:35 p. m. At approximately 7:15 p. m. the jury was recalled to the courtroom to be given the omitted instruction. Defense counsel then moved for a mistrial. The defendant claims to have been prejudiced by the initial omission of the instruction because of the possibility that ten of the twelve jurors may have voted for acquittal but were under the mistaken impression that the verdict had to be unanimous. It is of course impossible to know what transpired during the jury's deliberations.
On the date of trial, defense counsel filed a motion requesting the court to reduce its jury charge to writing and to deliver it to counsel prior to instructing the jury. C.Cr.P. 801. This was done, and counsel raised no objections. When the jury is called back to the courtroom to receive further charges after it has initially retired to deliberate, an objection made at the time the corrective charges are given is timely. State v. Knight, 323 So.2d 765 (La. 1975). Defendant's objection was directed to the initial failure of the trial judge to give the essential instruction, not to the corrective charge. No prejudice has been shown in the delay. Moreover, it is clear that it would have been proper to give the charge at the jury's request. C.Cr.P. 808. We find that the trial judge's inadvertent error in omitting the instruction which was later given did not constitute prejudicial error.
These assignments of error are without merit.
Assignment of Error No. 11
The defendant was sentenced to fifteen years at hard labor. The maximum sentence under the statute is twenty-one years. R.S. 14:31. Defendant contends that this sentence violates her constitutional right to humane treatment in that the sentence is excessive. La.Const. Art. 1 § 20 (1974).
The legislature has provided statutory guidelines to assist the court in determining the proper sentence to be imposed. C.Cr.P. 894.1. The record must reflect that these criteria were adequately considered in imposing sentence. State v. Jones, 386 So.2d 85 (La.1980); State v. Bonanno, 384 So.2d 355 (La.1980); State v. Roussel, 381 So.2d 796 (La.1980); State v. Cox, 369 So.2d 118 (La.1979). At the sentencing hearing, the defendant called three witnesses to testify on her behalf. A presentence investigation report was also filed. C.Cr.P. 875. Of the defendant's three witnesses, two had employed her both before and after the homicide to work in their home. The third, formerly a secretary of the district attorney, hired the defendant after the homicide to work in her home one day a week. All of these witnesses uniformly reported their complete trust of the defendant; all of them testified that they had no reason to believe that defendant had a violent temper or in any way presented a danger to them. The trial judge, who was acquainted with all three of these witnesses, noted that he did not think that they would misrepresent the truth.
However, the trial judge also noted that he had been acquainted with the victim for some twenty-five or twenty-six years:
"... and never knew him to be a violent individual. Not one prone to abusing the female sex. The record shows ... that Robert and Jessie McMahon were left alone and a shot was heard. I think the record shows that no one heard any arguing and that when the first witness arrived, I believe, Jessie McMahon was standing there with a gun in her hand. Life is precious. Death is permanent. Even though Jessie McMahon has a clean *1126 record prior to that time, so did a host of other people who are at the present time serving time in correctional institutions and I am sure that they have not been convicted of anything or had encounters with the law since that time. As the Court stated, death is rather permanent and Mrs. McMahon, you take life rather lightly. And, I know that Robert McMahon was very fond of life. The Court will not contest or even suggest in the future you would be guilty of any similar crimes, but even at that, the Court will take leniency...."
The trial judge, in opposing a fifteen year sentence, apparently believed that a lesser sentence would deprecate the seriousness of the crime. C.Cr.P. 894.1(A)(3). Several mitigating circumstances were properly considered, such as the defendant's lack of a criminal history and the improbability that defendant would commit another crime. C.Cr.P. 894.1(B)(7 and 9). However, the trial judge also negated the presence of one mitigating circumstance (that the defendant may have acted under strong provocation) in spite of the fact that the verdict of manslaughter represents the jury's conclusion that the homicide was 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." R.S. 14:31. Nevertheless, we find that the judge adequately considered the legislative criteria in imposing a less than maximum sentence.
Moreover, we conclude that the sentence itself is not excessive. In determining what is excessive punishment under the Eighth Amendment's prohibition against cruel and unusual punishment, the United States Supreme Court has ruled that a sentence is excessive when it is grossly out of proportion to the severity of the crime. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). This standard has been adopted by this court in addressing claims of excessive punishment. State v. Hartman, 388 So.2d 688 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980). The defendant was convicted of deliberately killing a human being. Because she was found to have acted under provocation, her conviction for manslaughter, which carries a less severe punishment than murder. The sentence itself was less than the statutory maximum. Under these circumstances we do not find that the fifteen year sentence was excessive.
This assignment is without merit.
The defendant's conviction and sentence are therefore affirmed.
WATSON, J., concurs.
NOTES
[1] R.S. 14:30.1, as amended by Acts 1977, No. 121, is applicable to this case. The statute was again amended in 1978 by Act 796, but the amended version did not become effective until after the August 26 homicide. La.Const. Art. 3 § 19 (1974). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601252/ | 445 F.Supp. 741 (1978)
Wilfredo MEJIAS, Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION, Defendant.
No. 77 Civil 191.
United States District Court, S. D. New York.
January 18, 1978.
*742 Wilfredo Mejias, pro se.
Robert B. Fiske, Jr., U. S. Atty., for the Southern District of New York, New York City, for United States of America.
Gaines Gwathmey, III, Asst. U. S. Atty., New York City, for defendant; Borge Varmer, Regional Atty., Region II, HEW, Barry J. Reiber, Asst. Regional Atty., HEW, I. M. Jones, Legal Asst., Dept. of Health, Education, and Welfare, New York City, of counsel.
OPINION
EDWARD WEINFELD, District Judge.
Plaintiff seeks review of a determination by the Secretary of Health, Education, and Welfare denying him Supplemental Security Income ("SSI") benefits.[1] Plaintiff's application for benefits was denied after a hearing by an Administrative Law Judge ("ALJ") on July 8, 1976; that decision was affirmed by the Appeals Council of the Social Security Administration of the Department of Health, Education, and Welfare on December 2, 1976. This appeal timely followed.
Plaintiff contends that he has been disabled within the meaning of the Social Security Act[2] since his hospitalization for one week in November 1974 after an attack of bronchial asthma. Thus, plaintiff claims, he is qualified to receive SSI benefits.
At the time of plaintiff's initial hospitalization in 1974, he reported to the medical staff that he had suffered from asthma since 1959. The record indicates that plaintiff responded to treatment. When he left Bellevue Hospital on December 2, 1974, his lungs were clear, he was experiencing slight wheezing and he reportedly felt well. At that time he evidenced no shortness of breath after being given an informal walk test.
Plaintiff continued treatment on a regular basis at Bellevue and elsewhere. An August 1975 examination showed that plaintiff responded to bronchodilators, had good chest expansion and exhibited "hardly *743 a wheeze." Over the next two months plaintiff suffered further attacks and wheezing, although his symptoms subsided through treatment. In November 1975 plaintiff evidenced rhonchi (abnormal sounds due to partial blockage of air channels) and some wheezing. The treating doctor at that time sent the Social Security Administration a letter stating that, in his opinion, plaintiff could not seek or keep gainful employment.
The administrative review of plaintiff's request for benefits began on December 31, 1975 with an initial denial of his application. Further disability interviews continued in early 1976. In April 1976, plaintiff was readmitted to Bellevue Hospital; his stay lasted three days. Examination at that time revealed "unlabored respirations," soft wheezes and no rhonchi. The treating doctor concluded that plaintiff's symptoms were minimal and that he was well by laboratory standards. A further examination in June 1976 indicated few rhonchi and low pitched wheezing.
After a hearing on June 30, 1976, the ALJ determined that the initial denial of benefits was proper and that plaintiff was not disabled under the relevant statutory provisions. The ALJ noted that the plaintiff responded to treatment and that his symptoms at that time were minimal. She found that the plaintiff was able to perform the light and sedentary work he had done before his first hospitalization.[3]
The plaintiff appealed the decision of the ALJ to the Appeals Council. Apparently after the ALJ's decision plaintiff was readmitted to Bellevue from July 6 to July 14, 1976 after another asthma attack. Following treatment at Bellevue, he submitted to the Appeals Council letters from a medical social worker and his treating physician. Both stated that plaintiff's condition had deteriorated to the point where he could no longer work. These letters are conclusory and unsubstantiated by any medical reports or data. The Appeals Councilwhich had these two letters as well as the administrative record before itaffirmed the decision of the ALJ.
This Court must determine, pursuant to section 205(g) of the Social Security Act, whether the Secretary's findings are "supported by substantial evidence."[4] A careful word-by-word review of the record clearly demonstrates that there is substantial evidentiary support for the conclusions of the Secretary.
While plaintiff has been hospitalized several times for asthma, he responds to treatment. Arrayed against the medical evidence of adequate treatment is the plaintiff's contention that his shortness of breath prohibits him from working. While the Secretary must take into account the plaintiff's subjective evaluations of his own condition,[5] such statements are not conclusive.[6] The record contains substantial evidence of the treatability of plaintiff's condition, his satisfactory response thereto, and no objective evidence of disability. Upon his discharge in June 1976, his treating physician wrote:
*744 [There exists] a difficult social problem [because Mr. Mejias] feels that even now, when clinically he has minimal symptoms and objectively by laboratory parameters is very well[,] [he] feels that he is quite ill and cannot work.
Furthermore, the Court is not inclined to second-guess the evaluation of the hearing officer who had the benefit of observing plaintiff. "[W]here as here, there is evidence to support the examiner's determination, it would be improper to parse the cold record in search of a different result."[7] Nor do the letters submitted by the plaintiff to the Appeals Council warrant reversal of the Secretary's findings. As noted above, the letters include no medical evidence upon which an informed judgment concerning the state of the plaintiff's health may be based.[8]
Accordingly, upon the present state of the record, the Court affirms the decision of the Secretary to deny plaintiff SSI benefits. However, given the "remedial [and] beneficent"[9] purpose of the Social Security Act and the fact that plaintiff proceeded pro se before the administrative agencies, the dismissal of the complaint is without prejudice to further proceedings before the Social Security Administration if the plaintiff can adduce additional medical evidence beyond conclusory memoranda from hospital personnel of his claimed disability.
Judgment to be entered accordingly.
NOTES
[1] See 42 U.S.C. § 1381 et seq. Judicial review of final determinations by the Secretary is provided by 42 U.S.C. § 1383(c)(3) which incorporates by reference the review provisions of 42 U.S.C. § 405(g).
[2] An individual is considered disabled under the SSI program
(A) . . . if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months (or, in the case of a child under the age of 18, if he suffers from any medically determinable physical or mental impairment of comparable severity).
(B) For purposes of subparagraph (A), an individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.
(C) For purposes of this paragraph, a physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
42 U.S.C. § 1382c(a)(3).
[3] Plaintiff had previously worked as an operator of a photocopying machine, a metal plater of lamp parts and screws and a hotel porter.
[4] That section, 42 U.S.C. § 405(g), provides:
The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..
The burden of proving disability rests with the claimant. Gold v. Secretary of HEW, 463 F.2d 38, 41 (2d Cir. 1972).
[5] Deyo v. Weinberger, 406 F.Supp. 968, 973 (S.D.N.Y.1975). Cf. Cutler v. Weinberger, 516 F.2d 1282, 1286-87 (2d Cir. 1975).
[6] Waters v. Gardner, 452 F.2d 855, 857 (9th Cir. 1971); Deyo v. Weinberger, 406 F.Supp. 968, 973 (S.D.N.Y.1975) (citing cases). See 20 C.F.R. § 404.1501(c) (1977). As the First Circuit has stated, "if a claimant could, as a matter of law, overcome the effect of what would otherwise be substantial evidence of continued ability to work by his own testimony as to his condition, the Secretary would rarely if ever be justified in denying benefits." Reyes Robles v. Finch, 409 F.2d 84, 87 (1st Cir. 1969).
[7] Deyo v. Weinberger, 406 F.Supp. 968, 974 (S.D.N.Y.1975). See Wrennick v. Secretary of HEW, 441 F.Supp. 482, 486 n. 13 (S.D.N.Y. 1977).
[8] Cf. Finnstrom v. Mathews, 412 F.Supp. 415 (D.Ariz.1976) (remand is improper where additional evidence consists of doctor's affidavit that is unlikely to affect the decision of the hearing officer).
[9] Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601254/ | 1 So.3d 1186 (2009)
Maurio BOYD, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-677.
District Court of Appeal of Florida, Second District.
February 4, 2009.
*1187 James Marion Moorman, Public Defender, and Tanya M. Dugree, Special Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
STRINGER, Judge.
Maurio Boyd seeks review of a judgment and sentence entered following the revocation of his probation based on a new law violation of battery on a pregnant woman. Boyd's probation was revoked after a revocation hearing, and he was sentenced to 16.2 months on the original offense of felonious possession of a firearm. Because the revocation is based on hearsay alone, we reverse.
Boyd was sentenced to twenty-four months' probation after pleading guilty to felonious possession of a firearm on December 11, 2006. On August 31, 2007, an affidavit of violation of probation was filed, alleging Boyd committed the new law violation of battery on a pregnant woman. A revocation hearing took place in which Boyd's probation officer testified regarding Boyd's arrest and the injury to the victim, Boyd's girlfriend. This testimony, based solely on facts contained in the police report, established that officers responded to a call at an apartment in Clearwater and heard a female voice from inside say "Let me go. Let me go." The officers heard arguing, knocked on the door, and when Boyd opened the door, the officers saw the victim with "some blood protruding from a hand."
Boyd also testified, stating that he and his girlfriend were arguing in their apartment when the police arrived, that a broken knife was found on the floor, and that he knew his girlfriend was pregnant. However, he had no knowledge whether his girlfriend's hand was bleeding.
Boyd argues on appeal that the trial court erred in revoking his probation based on hearsay and noncorroborative nonhearsay evidence only. We review a revocation of probation under an abuse of discretion standard. Russell v. State, 982 So.2d 642, 646 (Fla.2008). It is well settled that hearsay is admissible in revocation of probation proceedings, but it cannot be the sole evidence used to find a violation. Id. Rather, the hearsay evidence must be supported by nonhearsay evidence, and the State must establish the violation by the greater weight of the evidence. Id.
Hearsay evidence in the form of a victim's statement, combined with nonhearsay evidence corroborating the statement, is often sufficient to support a violation of probation. See Russell, 982 So.2d at 646; M.S. v. State, 987 So.2d 774 (Fla. 4th DCA 2008); Kalmbach v. State, 988 So.2d 1279 (Fla. 5th DCA 2008). In Russell, the supreme court found that under the facts of that case, nonhearsay evidence, including testimony of an observation of victim injury, was sufficient to support the victim's hearsay statement alleging *1188 battery. 982 So.2d at 648. In that case, "[t]he court was able to compare both the oral and written hearsay accounts to the type of injury described by the deputy, and the court was able to directly assess the credibility on the stand of both Russell and the [responding] deputy." Id. at 648.
In this case, Boyd's probation officer presented hearsay evidence of the circumstances leading to Boyd's arrest for battery. However, this hearsay testimony was not supported by testimony from an arresting officer, direct observation of victim injury, or a statement from the victim either through hearsay or direct testimony. The only nonhearsay evidence was presented by Boyd, whose testimony established only that he and his pregnant girlfriend argued and that a broken knife was on the floor of the apartment. This evidence is insufficient to support the hearsay testimony of battery presented by the probation officer.[1]
We conclude that the trial court abused its discretion by revoking Boyd's probation based on uncorroborated hearsay evidence, and we reverse the revocation order as well as the judgment and sentence entered pursuant to that order. We note that double jeopardy does not preclude a second revocation hearing based on the filing of a new affidavit alleging the same violation. Scott v. State, 937 So.2d 746, 748 (Fla. 4th DCA 2006); Keith-Schrader v. State, 891 So.2d 1217, 1218 (Fla. 2d DCA 2005).
Reversed and remanded.
FULMER and WALLACE, JJ., Concur.
NOTES
[1] We question whether the probation officer's testimony provided even hearsay evidence that a battery occurred. However, this was not argued on appeal and we decline to address it as fundamental error in light of our reversal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601257/ | 391 So.2d 878 (1980)
METROPOLITAN NEW ORLEANS CHAPTER OF the LOUISIANA CONSUMERS' LEAGUE, INC., People Power, Mary Elizabeth Petts, Flossie Milford Simon, Brenda Davillier, Brother Kieran Dugas, Lynn Terrance, Alonde Harrison, Thelma Gath and Rita R. Smith and all others similarly situated
v.
The COUNCIL OF the CITY OF NEW ORLEANS and New Orleans Public Service, Inc.
No. 10874.
Court of Appeal of Louisiana, Fourth Circuit.
November 14, 1980.
Writs Refused January 26, 1981.
*879 John F. Robbert, New Orleans, for Metropolitan New Orleans Chapter of the Louisiana Consumers' League, Inc., plaintiff-appellee.
Archie B. Creech and Brian J. Waid, New Orleans, for People Power, et al., plaintiffs-appellees.
Burke & Mayer, Charles B. Mayer and James G. Burke, Jr., Christopher T. Screen, William C. Nelson, and Floyd A. Hennen, New Orleans, for NOPSI, defendant-appellant.
Debra J. Fischman, Asst. City Atty., and Salvador Anzelmo, City Atty., New Orleans, for The Council of the City of New Orleans, defendant-appellant.
Before SAMUEL, REDMANN and CHEHARDY, JJ.
SAMUEL, Judge.
This is a suit by ten plaintiffs,[1] purporting to act on behalf of the class constituting all persons similarly situated, against the Council of the City of New Orleans (Council) and New Orleans Public Service, Inc. (NOPSI), to obtain a refund of a $0.05 bus and streetcar fare increase collected by NOPSI pursuant to council resolution R-75-150 for the period during which the increase was collected, November 14, 1975 to November 8, 1977. In the alternative, plaintiffs seek a reduction of transit fares by $0.05 for a period of time equal to the time the $0.05 increase was in effect. They contend they represent the class of transit riders who paid the increase during that time.
Following the filing, and the overruling, of several defendant exceptions, plaintiffs filed a motion for summary judgment, which the court granted. The summary judgment thus rendered is in favor of plaintiffs (on their alternative prayer) in the sum of $5,518,900 and orders that restitution be made by a $0.05 reduction of the prior transit fare for a period of two years. The summary judgment also includes an award to plaintiffs of $100,000 in attorney's fees.
The Council and NOPSI have appealed. Plaintiffs have answered the appeal seeking an increase in the time the fare reduction will be in effect in order to compensate for judicial interest on the amount of the judgment, and also seeking an increase in the attorney's fees awarded by the trial court.
On November 11, 1975, the Council had adopted the resolution raising transit fares by $0.05. This case is an offshoot of a previous case filed by the present plaintiffs against the present defendants. In the prior suit plaintiffs, acting in their individual or organizational capacities and not as representatives of a class, sought injunctive relief prohibiting enforcement of the ordinance. On December 22, 1975 the trial court declared the $0.05 transit fare increase illegal and issued a permanent injunction enjoining NOPSI from collecting the increased fare. On the same day, the trial court entered an order allowing NOPSI to prosecute a suspensive appeal from *880 the judgment. On that appeal this court affirmed the trial court judgment,[2] the Supreme Court denied defendants' application for writs,[3] and on November 8, 1977 NOPSI reduced the fare by $0.05, thereafter charging the fare in effect prior the increase.
The present action was filed on August 4, 1977, shortly after this court's decision maintaining the trial court judgment in the prior case. The trial judge considered the previous suit between the same plaintiffs and the same defendants as determinative of the issues before it. Accordingly, he concluded no material factual issues existed and plaintiffs were entitled to judgment as a matter of law. We disagree.
The primary issue before us is the propriety of the summary judgment. Relative to that issue, we find it necessary to consider only two of appellants' contentions. Both contentions are concerned with the class action, one with notice and the other with restitution. In our view, both have merit and either one, by itself, requires that we annul and set aside the judgment appealed from. Summary judgment is not a substitute for a trial on the merits and can be rendered only when there is no issue of material fact and the mover is entitled to a judgment as a matter of law.[4]
In Louisiana we have only the true class action, wherein the judgment concludes not only the representative parties, but all other members of the class who are not joined as parties.[5] Thus, in our state courts it is particularly important that proper notice of the action be given. In Williams v. State,[6] the Supreme Court of Louisiana said:
"... despite the lack of any statutory requirement for notice to other members of the class sought to be represented, federal (if not also state) due process requires that at some stage of the proceedings, preferably in the earlier stages of the litigation, all identifiable prospective members of the class be given reasonable notice of the pendency of the litigation and the opportunity to opt out of or join in the class action. This notice should be `reasonably calculated, under all the circumstances, to appraise interested parties of the pendency of the action * * *' ..." (Emphasis added and citations omitted).
The record before us is devoid of any evidence showing, or even tending to show, that the members of the class plaintiffs purport to represent were given any notice of either the pendency of this litigation or the opportunity to join therein or disassociate themselves therefrom. Consequently, plaintiffs are not entitled to a class action summary judgment.
Regarding the second contention, a suit for restitution after the avoidance of a set rate is equitable in origin and nature. In order to prevail in such a suit, a plaintiff must show the money in contest was received under such circumstances that equity and good conscience would be offended if the defendant was allowed to retain it. The question presented is not whether the court would have allowed the defendant to receive the money originally, it is whether the court, following a full consideration of all the facts and circumstances, will take the money from the defendant's possession after it has been allowed to collect it.[7]
It has been held that restitution is not a matter of right. It is a privilege resting on the existence of sound judicial discretion, and restitution will not be ordered when the equities of the case do not call for it. In such cases, the question is whether all the circumstances dictate that equitably the defendant should restore to *881 the plaintiff what it has received.[8] In order to prevail in a restitution case, a plaintiff must demonstrate the unreasonableness of the rate subsequently held invalid and the reasonableness of the rate sought to be used in substitution therefor.[9]
There was no hearing in the trial court on the unreasonableness of the rate fixed by the Council and subsequently held invalid for want of a technical formality. Moreover, there has been no hearing regarding the propriety and reasonableness of the $0.05 rate reduction for two years ordered by summary judgment.
In his Reasons for Judgment the trial judge stated defendants did not file affidavits for his consideration in determining whether restitution was appropriate. He thus implied summary judgment was proper in the absence of any evidence countervailing that produced by plaintiffs in support of their motion for summary judgment. However, as the court had before it the entire record in the first suit, which record includes the public hearings held by Council on the fair and appropriate rate of return to be earned by NOPSI and, as shown therein, the fact of a then current and large transit deficit, there was some countervailing evidence before the court regarding the fairness and reasonableness of the rate of return represented by the $0.05 rate increase; plaintiffs' evidence was not uncontradicted, and there was an issue of material fact. In addition, as we have pointed out, in this suit for restitution plaintiffs had the burden of showing it would offend equity and good conscience if NOPSI was allowed to retain the later prohibited increase. Thus far, plaintiffs have failed to carry that burden.
For the foregoing reasons, the summary judgment appealed from is annulled and set aside, and this case is remanded to the trial court for further proceedings in accordance with law and the views herein expressed. Plaintiffs are to pay all costs of this appeal; all other costs are to await a final determination.
ANNULLED, SET ASIDE AND REMANDED.
REDMANN, J., concurs with written reasons.
REDMANN, Judge, concurring.
The grant of summary judgment was wrong because, as a matter of law, plaintiffs are not entitled to judgment on the undisputed facts. In order to recover the cost of a fare increase whose only defect was that it was not properly advertised, plaintiffs should be required to show that, if the fare increase had been properly advertised, it would not have been granted (or that it would have been smaller). Plaintiffs' motion for summary judgment made no such showing.
These plaintiffs have already cost the city too much (even NOPSI's legal fees will but increase the transit deficit that the city pays). I should therefore prefer to dismiss the class on the ground of prescription and League and People Power on the ground that they have no right of action. I cannot, however, raise that preference to the level of dissent because the only question before us is whether summary judgment was correct.
NOTES
[1] Eight New Orleans individuals and two New Orleans organizations.
[2] Metro. N.O. Chap. of La. Consumers League v. Council of City of New Orleans, La.App., 349 So.2d 400.
[3] La., 351 So.2d 177.
[4] LSA-C.C.P. Art. 966.
[5] LSA-C.C.P. Arts. 591, et seq., and Comment (c) under Article 591.
[6] La., 350 So.2d 131, 137.
[7] See Atlantic Coast R. Co. v. State of Florida, 295 U.S. 301, 55 S.Ct. 713, 79 L.Ed. 1451.
[8] See Atlantic Coast R. Co. v. State of Florida, supra, note 7.
[9] See Abbotts Dairies Division of Fairmont Foods v. Butz, 584 F.2d 12. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601261/ | 391 So.2d 677 (1980)
Ex parte Sue DOLVIN.
(Re: Sue Dolvin v. State of Alabama).
79-175.
Supreme Court of Alabama.
September 12, 1980.
*678 Jerry R. Knight, Decatur, for petitioner.
Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for respondents.
PER CURIAM.
We granted certiorari to review the decision of the Court of Criminal Appeals in Dolvin v. State, 391 So.2d 666 (Ala.Cr. App.1979). The main issue presented for our consideration is whether the trial court erred in permitting a forensic odontologist to testify that in his opinion a skeleton found in Seminole County, Florida, was that of Charles Ray Lovett, based on a comparison of the skeletal teeth with inter vivos photographs of Charles Ray Lovett.
The facts as found in the opinion of the Court of Criminal Appeals are as follows: On the night of August 16, 1970, Charles Ray Lovett mysteriously disappeared from his home in Decatur. Seven years later a skeleton was found in Seminole County, Florida. The state indicted Mrs. Dolvin for Lovett's murder, and at trial introduced into evidence, over her objection, the testimony of a forensic odontologist who compared the skeletal teeth found in Seminole County, Florida, with two inter vivos photographs of Lovett in an attempt to show that the skeleton was that of Charles Ray Lovett. The petitioner was convicted of the murder of Charles Ray Lovett and sentenced to life imprisonment. The Court of Criminal Appeals affirmed.
On March 13, 1970, defendant's husband, Glenn Dolvin, was indicted for the theft of Lovett's automobile. It was the State's theory at trial that Lovett was kidnapped and murdered by Sue Dolvin and Glenn Dolvin in order to prevent Lovett from testifying at Glenn Dolvin's larceny trial. The evidence presented against Sue Dolvin was stronger than the evidence presented against Glenn Dolvin in the following two respects: Miss Debbie Garrett testified that on the night of Lovett's disappearance, August 16, 1970, she had seen and identified as Sue Dolvin, a woman who was driving a Volkswagen up and down the street on which Lovett lived. Miss Garrett testified that there were two men in the car with the woman, but she was unable to identify those two men. Secondly, there was evidence from Florida Highway Patrolman Clarence Simpson, who testified that around 1:00 a. m. on August 18, 1970, Sue Dolvin came into the highway patrol station at Ocala, Florida, and signed a lost-tag form. The officer said that Mrs. Dolvin had smudges all over her and that her fingernails and clothes were very dirty and she appeared as if she had been camping in the woods. The skeletal remains alleged to be those of the deceased were found in Seminole County, Florida, not far from Ocala. The facts of the instant case are set out more extensively in the opinion of the Court of Criminal Appeals.
*679 On January 26, 1979, Glenn Dolvin, the petitioner's husband, was convicted of the offense of murder in the first degree of Charles Ray Lovett. The Court of Criminal Appeals reversed and rendered the trial court's judgment, holding: "Our review of the evidence leaves no doubt that the defendant was convicted on speculation, suspicion, and conjecture. The judgment is therefore reversed." Glenn Dolvin v. State, 391 So.2d 129 (Ala.Cr.App.1979). We reversed the decision of the Court of Criminal Appeals in Dolvin v. State, 391 So.2d 133 (Ala. 1980).
Petitioner contends that the trial court erred to reversal insofar as it held admissible expert opinion testimony of Dr. Richard Souviron, a forensic odontologist, concerning identification of skeletal remains founded upon his comparison of the skeletal remains with inter vivos photographs of the victim. Dr. Souviron compared facial structure, occlusion, and the shape of teeth and jaw of a human skull found in Seminole County, Florida, with those of Charles Ray Lovett, as depicted in the inter vivos photographs taken of Lovett.
The seminal case establishing the safeguard against admission into evidence of facts gleaned from an unreliable scientific test is Frye v. United States, 293 F. 1013 (D.C.Cir.1923). In Frye, the Court of Appeals for the District of Columbia ruled that a systolic blood pressure lie detector test had "not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made." 293 F. at 1014. The rule as stated by that court is as follows:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923).
Since the lie detector test has not gained the required acceptance in the intervening fifty-seven years, length of existence is clearly not determinative in ascertaining the admissibility of a scientific test. Factors which are determinative include: Whether a test is readily assignable to any particular well-established and defined scientific discipline; whether the test is either applied by a mechanical device or purports to decipher specific data requiring scientific paraphernalia to produce; whether the test tends to trench very closely upon an ultimate issue in the case; whether the test is based on a syllogism that has a major premise or assertion that a fact of legal interest is or is not true, while that fact is only probably true; whether the test relates to mental state as opposed to physical condition; and whether the test attempts a scientific diagnosis of testimony and its veracity by mechanical means. See J. Richardson, Modern Scientific Evidence §§ 6.2, 6.17 (2d ed. 1974); Strong, Questions Affecting the Admissibility of Scientific Evidence, 1970 U.Ill.L.F. 1. The above factors are not applicable to the test used in the case before us now. The forensic odontology test applied by Dr. Souviron is in the nature of a physical comparison rather than a scientific test or experiment, as was the case in Frye. Therefore, the Frye test is inapplicable, and will not be resorted to here.
Alabama case law supports the admission of inter vivos photographs for the purpose of allowing the jury to compare the teeth of a human skull with those of the person depicted in the photograph. DeSilvey v. State, 245 Ala. 163, 16 So.2d 183 (1944). Expert testimony comparing inter vivos photographs with a human skull is a refinement and extension of this procedure, but is nonetheless admissible, assuming the *680 proper predicate is laid. In the case before us, there was a sufficient predicate laid at the trial level to justify admissibility. Dr. Souviron's testimony as to his qualifications in the field of forensic odontology constituted the predicate necessary for the identification testimony that followed. Additionally, the trial court asked Dr. Souviron: "Is what you did a recognized way of comparing these things in the field of science that you are in?" Dr. Souviron answered, "Yes, sir."
"The increasing use of technology in criminal investigations, when consistent with the rights of the accused, should not be inhibited." Chatom v. State, 348 So.2d 838 (Ala. 1977). Petitioner has failed to show that the admission of the forensic odontology test violated her rights. Since the evidence was properly admissible, the trial court committed no error in allowing it to be heard.
Petitioner objects to the jury charge defining legal malice as "the right of the jury to infer that there was malice." This objection, however, fails to rise to the level of reversible error, since the charge, taken as a whole, was correct. Gosa v. State, 273 Ala. 346, 139 So.2d 321 (1962). Her allegation that defense attorney was prevented from conducting a "thorough and sifting cross-examination" is similarly without merit, since the court only sustained objections to argumentative and completely irrelevant questions by defense attorney. Petitioner argues further that the jury drew inferences from her failure to testify, but she fails to show that the prosecutor improperly commented on her failure to testify, such comment by the prosecutor being the grounds for reversal under Alabama law. See Code 1975, § 12-21-220. She also charges that the Court of Criminal Appeals applied an incorrect standard in ruling on her motion for change of venue. In support of this argument, petitioner cites Anderson v. State, 362 So.2d 1296 (Ala.Cr. App. 1978), for the proposition that in order to obtain a change of venue, a defendant must show that as a result of pretrial publicity it is "reasonably unlikely that the defendant can secure a fair and impartial trial." 362 So.2d at 1299. Anderson also holds, however that "[n]ewspaper articles, without more, are not evidence on a motion for change of venue; their effect must be shown." 362 So.2d at 1298. The Court of Criminal Appeals' requirement of actual jury prejudice thus comes within the Anderson standard.
AFFIRMED.
TORBERT, C. J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.
FAULKNER and EMBRY, JJ., dissent.
BLOODWORTH and ALMON, JJ., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602462/ | 577 So.2d 445 (1991)
James H. WEST and Kathleen West
v.
David LAW and Dorothy Law.
89-995.
Supreme Court of Alabama.
March 8, 1991.
*446 Clarence F. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellants.
Gary E. Davis, Centre, for appellees.
ALMON, Justice.
David and Dorothy Law filed an action to reform the description of land contained in an instrument in which the Laws agreed to lease from James H. and Kathleen West certain land with an option to purchase.
The land was described as "[t]hree acres evenly off of the East side of the following described tract of land: ..." The Wests contend that the parties intended that the parcel was to run the entire length of the east boundary of the 10-acre tract owned by the Wests and to be of whatever width necessary to form a 3-acre tract. Conversely, the Laws contend that this description was intended to refer to a parcel of land "one acre wide" and "three acres deep." It is apparent that they mean by those phrases that the width was to be equal to a side of a square acre and the length was to be three times that distance, i.e., approximately 208.71 feet by 626.13 feet.
Section 35-4-153, Ala.Code 1975, provides:
"When, through fraud or a mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected, a deed, mortgage or other conveyance does not truly express the intention of the parties, it may be revised by a court on the application of the party aggrieved so as to express that intention, insofar as this can be done without prejudice to rights acquired by third persons in good faith and for value."
Conceding that the description unambiguously described the parcel as contended by the Wests, we conclude that there is nevertheless an abundance of evidence in the record to support the trial court's conclusion that there had been a mutual mistake. Mullinax v. Mullinax, 495 So.2d 646 (Ala.1986). The proof in the record of mutual mistake was properly admitted, and the parol evidence rule is no impediment when one seeks to reform a conveyance because of mutual mistake. Whitehead v. Johnston, 467 So.2d 240 (Ala. 1985); Collier v. Brown, 285 Ala. 40, 228 So.2d 800 (1969); and Chastain & Blass Real Estate & Ins., Inc. v. Davis, 280 Ala. 489, 195 So.2d 782 (1967).
Dorothy Law testified that she and James West were the parties who actually negotiated the agreement and that they both discussed and agreed on a parcel of land "one acre wide" and "three acres deep" so that the Laws could construct a house and place a house trailer on the property. Mrs. Law's testimony is corroborated by the testimony of her former daughter-in-law, who, while not being a party to the agreement, was present during the negotiations. The Laws' contention that the agreed-upon land was "one acre wide" and "three acres deep" is further corroborated by the evidence that James West, himself, measured and marked the width and length of the parcel as being roughly "one acre" by "three acres." Finally, there was testimony that Mr. West had referred to the tract as being "one acre wide" and "three acres deep" and that Mr. West had attempted to sell to a third party *447 a portion of the 10-acre tract adjoining the Laws' parcel, and that he had described that portion as forming an "L" shape, that is, as bordering the Laws' parcel on the west and south. See "Plaintiff's Exhibit 5," attached.
Thus, the trial judge did not err in reforming the instrument. The judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602454/ | 577 So.2d 653 (1991)
Daniel Dean HENDERSON, Appellant,
v.
STATE of Florida, Appellee.
No. 90-1114.
District Court of Appeal of Florida, First District.
March 28, 1991.
Barbara M. Linthicum, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Suzanne G. Printy, Asst. Atty. Gen., Tallahassee, for appellee.
JOANOS, Judge.
Daniel Dean Henderson has appealed from a sentence imposed outside of the sentencing guidelines after his conviction of armed burglary, aggravated battery with a deadly weapon, battery, aggravated battery, armed burglary of a conveyance, and two counts of assault. We reverse and remand for resentencing, at which time the trial court shall have the opportunity to consider whether departure would be appropriate and, if so, to enter valid reasons in writing.
Henderson was found guilty by a jury of the offenses listed above, all arising from his June 1989 attack on a 72-year old woman *654 and her daughter. His guidelines score was 535 points, corresponding to a recommended sentence of life imprisonment. In the course of the sentencing proceeding, defense counsel argued for the imposition of a sentence below that recommended by the guidelines. In rejecting that argument, the court made the following remarks:
Mr. Henderson, you've got to be sentenced to life in prison, because you have an uncanny ability to find woman [sic] who are vulnerable, and it's been your practice and what you have done is take advantage of them... . The only proper sentence in this case is for you to be removed from society as long as you live. And that's what the sentence of this Court is going to be.
The court proceeded to impose, in pertinent part, three life terms (for armed burglary, kidnapping and armed burglary of a conveyance) and two 15-year terms (two counts of aggravated battery), all to run consecutively to each other. In Rease v. State, 493 So.2d 454 (Fla. 1986), the court held that when the guidelines recommend life, a sentence of life plus 60 years amounts to a departure requiring clear and convincing reasons. Accord, Lewis v. State, 550 So.2d 144 (Fla. 1st DCA 1989) (when the recommended sentence is life, the court must provide written reasons for imposing consecutive sentences on other counts arising from the same incident).
Here, the court effectively imposed life plus 30 years. The state concedes that, because no written reasons for the departure were provided, Rease requires that the sentence be vacated and the case remanded for resentencing. However, appellant further maintains that, on remand, sentencing must be within the guidelines, citing Pope v. State, 561 So.2d 554 (Fla. 1990) (when an appellate court reverses a departure sentence for lack of written reasons, it must remand for resentencing with no possibility of departure from the guidelines). The state responds that the record supports a finding that the trial court did not realize that its sentence constituted a departure, and cites State v. Betancourt, 552 So.2d 1107 (Fla. 1989), for the proposition that the court should have the option on remand of imposing a departure sentence, supported in writing by valid criteria.
In Roberts v. State, 534 So.2d 1225 (Fla. 1st DCA 1988), approved 547 So.2d 129 (Fla. 1989), the trial court was unaware that it had imposed a departure sentence, because it had been provided with an incorrect scoresheet. The court held that a judge who finds a higher guidelines range sufficient when using an improperly calculated scoresheet might not necessarily find sufficient a lower guidelines range resulting from a correct scoresheet when a defendant is back before him for resentencing. The court therefore held that the judge could reconsider whether a departure would be appropriate when the corrected scoresheet was before him on remand. Roberts at 130.
In State v. Betancourt, 552 So.2d 1107 (Fla. 1989), the guidelines recommendation was 3 1/2 to 4 1/2 years, and the trial court imposed a split sentence of 4 years incarceration, followed by 2 years community control. The Supreme Court found "no indication in the record that the trial court considered this sentence to be a departure from the sentencing guidelines," and cited Roberts for the proposition that "it is proper for a judge to reconsider whether a departure from the guidelines is appropriate on remand when the trial judge has not yet had an opportunity to consider reasons for departure." Betancourt at 1108. Finding that, as in Roberts, the Betancourt trial judge "did not know that she was imposing a departure sentence, which required written reasons for departure," the court disapproved the district court's instruction that Betancourt be sentenced within the guidelines. Betancourt at 1109.
Finally, in Merritt v. State, 567 So.2d 1031 (Fla. 4th DCA 1990), the trial court imposed, in addition to the life sentence recommended by the guidelines, consecutive sentences based on counts arising from the same incident. The court reversed the sentence based on Rease, and in determining the trial court's permissible action on remand, analyzed Betancourt in light of Pope, the case relied on by appellant herein. *655 The Merritt court thus arrived at the rule that, if the sole error is the failure to reduce the reasons for a departure sentence to writing, the trial court is limited on remand to the guidelines. But, if the record indicates that the trial court did not realize that the sentence was a departure, and as a result fails to reduce its reasons to writing, the trial court may depart from the guidelines on remand by setting forth valid, written reasons. Merritt at 1032.
This line of cases is silent as to the factual circumstances from which it can be determined that a trial court "did not realize that a departure sentence was being imposed." However, a review of the record herein indicates that, in response to a defense request for a sentence below the life term recommended by the guidelines, the trial court indicated an intention to follow the guidelines, i.e., to impose a life sentence. There is no indication that the trial court intended to impose a departure sentence. Therefore, we reverse the sentence imposed herein, and under the authority of Betancourt and Merritt, remand for resentencing, at which time the trial court shall have the opportunity to consider whether sentencing outside the guidelines would be appropriate and, if so, to provide valid reasons therefor.
Reversed and remanded with directions.
ERVIN and MINER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/408152/ | 688 F.2d 74
25 Wage & Hour Cas. (BN 922, 95 Lab.Cas. P 34,259
Raymond J. DONOVAN, Secretary of Labor, United StatesDepartment of Labor, Appellant,v.Ernest SIDERIS and Chris Sideris, d/b/a AeroApartment/Hotel, the Irwin Hotel and the EdwardHotel, Appellees.
No. 81-2366.
United States Court of Appeals,Eighth Circuit.
Submitted June 14, 1982.Decided Sept. 16, 1982.
1
Frost & Meyers, Omaha, Neb., for appellees.
2
T. Timothy Ryan, Jr., Sol. of Labor, Beate Bloch, Associate Sol., Mary-Helen Mautner, Mary Ann Bernard, Attorneys, U. S. Dept. of Labor, Washington, D. C., for appellant.
3
Before ARNOLD, Circuit Judge, MILLER,* Judge, and COLLINSON,** Senior District Judge.
4
COLLINSON, Senior District Judge.
5
The Secretary of Labor instituted an action against the appellees under Section 16(c) and 17 of the Fair Labor Standards Act ("FLSA" or "Act"), Title 29, United States Code, Section 201, et seq., charging them with violations of its minimum wage, overtime, and record keeping provisions with respect to three hotels. The appellees, Chris and Ernest Sideris, are brothers and business partners who own the Aero, Irwin and Edward Hotels in Omaha, Nebraska. In addition, they own 54.8 per cent of the Sideris Realty Company which owns a fourth hotel, the Conant. The Sideris Realty Company leases the Conant Hotel to the Sideris Investment Corporation for operation. Chris and Ernest Sideris are president and vice-president respectively of the investment company.
6
The Secretary sought an injunction against future violations of the Act and recovery of back wages, together with an equal amount in liquidated damages. The Department of Labor contends that the Aero, Irwin and Edward Hotels are covered by the FLSA because they are part of a "single enterprise" with the Conant. The district court1 disagreed and dismissed the Secretary's complaint. We reverse.
7
The FLSA covers all employees of certain statutorily-defined "enterprises engaged in commerce." Enterprise is defined in Title 29, United States Code, Section 203(r) as
8
the related activities performed (either through unified operation or common control ) by either person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units.... (Emphasis added).
9
One type of enterprise is "an enterprise which is comprised exclusively of one or more retail or service establishments and whose annual gross volume of sales made or business done" was not less than $250,000 before July 1978; $275,000 between July 1, 1978, and June 30, 1980; and $325,000 between July 1, 1980, and December 31, 1981. Title 29, United States Code, § 203(s)(2). The Secretary concedes that the Aero, Irwin and Edward hotels taken together do not have the minimum amount of dollar volume to be covered as an "enterprise" without the Conant.2
10
The district court based its decision for appellees upon the fact that minority shareholders in the Sideris Realty Company, who are also Sideris family members, participate in the decision making with respect to corporate properties. The Court described the decision making process concerning the realty company and the investment corporation as a family "agreement to agree" as to policy decisions affecting the companies. The Court concluded that there was no "common control center having ultimate power to make binding decisions for all units of the enterprise," and held that there was no "common control" as required by 29 U.S.C. § 203(r), notwithstanding the fact that Chris and Ernest Sideris had majority stock ownership in the realty company.
11
We hold that the four hotels are under "common control" within the meaning of Section 3(r) of the Act. There is no evidence that the Sideris brothers entered into any formal agreement with any other family members giving up their ability as majority shareholders to control Sideris Realty or the Sideris Investment Corporation.3 There is no evidence, moreover, that anyone other than Chris, Ernest or their sister, Helen, took an active role in the management of the Conant. The district court's holding that as a matter of law "common control" is lacking because Chris and Ernest informally chose to share control with minority shareholders is not supported by the weight of the evidence. See, Wirtz v. Barnes Grocery Co., 398 F.2d 718 (8th Cir. 1968).
12
For the foregoing reasons, the judgment entered by the district court should be reversed and the case should be remanded with instructions to proceed for determination of the amount of back wages and liquidated damages owing and for entry of an injunction restraining future violations of the Act.
*
The Honorable Jack R. Miller, Judge, United States Court of Customs and Patent Appeals, sitting by designation
**
The Honorable William R. Collinson, Senior District Judge Eastern and Western Districts of Missouri, sitting by designation
1
The Honorable Albert G. Schatz, United States District Court for the District of Nebraska
2
It is undisputed that the Sideris brothers did not pay certain of their employees at the three hotels either the statutory minimum wage or the statutory overtime premium for hours worked over a 40-hour work week
3
There is no evidence of any written agreement, nor even of an oral agreement with definite terms and with a definite duration | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1839080/ | 575 So.2d 376 (1991)
STATE of Louisiana
v.
Alan N. SMASON.
No. 91-KK-0178.
Supreme Court of Louisiana.
February 8, 1991.
Denied.
CALOGERO, C.J., and DENNIS, J., would grant the writ. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3955981/ | This conviction is for an aggravated assault, the fine being $50.
The first bill shows that after Claudie Honeycutt had testified on direct examination by the State, that she met defendant in the street near the railway track between 6 and 7 o'clock in the evening, and that defendant took hold of her right hand with his left hand, and hold of her left hand with his right, and that he squeezed her right hand and twisted the same so badly that her hand and wrist hurt her so badly; that her wrist and lower part of her right arm swelled and got red, and that her wrist was swollen so badly and hurt so much the next day, that she could not wash. After Claudie Honeycutt had stated on cross-examination by the defendant, that she did not strike the witness, Mrs. M.M. Honeycutt, in the face or anywhere else with her right hand, the night following the alleged assault, defendant offered to prove by Mrs. M.M. Honeycutt that the night following the alleged asasult, and about two hours after the occurrence of the alleged incident near the railway track, the prosecuting witness Claudie Honeycutt, came to her house and struck her in the face with her right hand with such force as to stagger her, the said Mrs. M.M. Honeycutt; that said Claudie Honeycutt nearly knocked her down with said blow. To the introduction of said testimony, the State by its attorney objected, for the reason that it was immaterial, and defendant's counsel thereupon stated to the court that the testimony was offered as a circumstance tending to show that the hand and wrist of the prosecuting winess were not injured as claimed by her, and that if her wrist or arm was swollen the day after the alleged assault, the same was caused by striking Mrs. M.M. Honeycutt, and not by defendant. This evidence *Page 301
was inadmissible. Bill number 2 shows that similar testimony was offered in behalf of appellant. We do not think any of this testimony was admissible. The mere fact that prosecuting witness had a difficulty with her mother-in-law, after the injury was done to her person by appellant, would not be admissible for any purpose, unless it shed some light upon the previous difficulty. The mere fact that prosecuting witness struck Mrs. M.M. Honeycutt (her mother-in-law) with her fist, would not per se be admissible, unless the bill of exceptions had shown that the injury complained of by prosecuting witness was inflicted upon her by said blow. The bill does not show that the injury she complained of was so inflicted. This testimony would not be admissible for the purpose of impeachment, because it would be an impeachment upon an immaterial matter — it being immaterial about her having a fight with her mother-in-law. She having denied said fight, it would not be proper to prove the fact that said fight occurred. The judgment is affirmed.
Affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1551508/ | 170 B.R. 549 (1994)
In re MAXWELL NEWSPAPERS, INC. d/b/a Daily News, Debtor-Appellee,
v.
The TRAVELERS INDEMNITY COMPANY, Appellant.
No. 94 Civ. 1986 (RO).
United States District Court, S.D. New York.
July 29, 1994.
Louis A. Scarella, Phillips, Nizer, Benjamin, Krim & Ballon, Garden City, NY, for appellant.
Howard Seife, Winston & Strawn, New York City, for debtor-appellee.
OPINION AND ORDER
OWEN, District Judge.
The Travelers Indemnity Company appeals from Bankruptcy Court Judge Brozman's January 1994 decision to vacate a Stipulation she had approved two years earlier. The Stipulation provided for the payment by Travelers to debtor Maxwell Newspapers of $41,034.00 and the recognition of certain reciprocal setoff rights, and also contained a provision releasing Travelers from any future liability to the debtor. Before its adoption, the Stipulation was served on counsel to the debtor's Committee of Unsecured Creditors and to eleven of the Committee's initial members. No objection to the Stipulation was filed.
Four months after Judge Brozman approved the Stipulation, the debtor assigned to the Committee of Unsecured Creditors causes of action accruing to the debtor under §§ 542-549 of the Bankruptcy Code. Following *550 this assignment, the Committee undertook a review of potential preferential transfers made by the debtor, and determined that causes of action existed against Travelers, for several transfers totalling $2.4 million, made by the debtor to Travelers within ninety days prior to the Bankruptcy Petition Date.
The Committee, realizing that this potential action might be hampered by the release granted to Travelers by the Stipulation, moved to vacate the Stipulation pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. It argued that the Bankruptcy Court approved the Stipulation without the benefit of disclosure of any bankruptcy claims. Neither the Stipulation Motion nor the annexed documents laid out the dates upon which the debtor made the alleged preferential payments to Travelers, and these dates were crucial to determining the very existence of preference claims. However, these crucial payments and dates were included in a Schedule, a document of record filed with the Bankruptcy Court eight months prior to the Stipulation Motion.
Judge Brozman vacated the Stipulation pursuant to FRCP 60(b)(3), finding that the Stipulation Motion contained material omissions that "had the effect of lulling the reader into the mistaken belief that the range of dispute was in the tens of thousands, rather than millions, of dollars." Travelers appeals on the theory that the Bankruptcy Court possessed full disclosure in the form of the publicly filed Schedule, and points out that the very purpose of requiring a debtor to file a Statement of Financial Affairs is to assure that adequate information is available to those interested in the administration of the bankruptcy estate.
It is well settled that bankruptcy courts, as courts of equity, have the power to reconsider, modify, or vacate a previous order so long as no intervening rights have become vested in reliance on such order. In re Lenox, 902 F.2d 737, 738 (9th Cir.1990). However, stipulations are not to be lightly set aside by a bankruptcy court, Id. and it is troublesome that neither the debtor's nor the Committee's attorneys made any effort to check the filed payment schedule for possible preference actions against Travelers before consenting to a general release of liability in the Stipulation.
On the other hand, a Bankruptcy Court approving a compromise in reorganization proceedings has a qualitatively different role than would a district court judge approving a compromise between individual litigants. Bankruptcy Judges have a fiduciary obligation to protect creditors, and the supervising court must play a "quasi-inquisitorial role", ensuring that all aspects of a proposed compromise are "fair and equitable." See Matter of Boston & Providence Railroad Corp., 673 F.2d 11, 12 (1st Cir.1982). Bankruptcy Judges must make such determinations against a background of all facts necessary for an "intelligent and objective opinion," and have an independent duty to examine settlements even where the creditors and other parties in interest are silent. See In re Crowthers McCall Pattern, Inc., 120 B.R. 279, 287 (Bkrtcy.S.D.N.Y.1990):
"The fact that courts do not ordinarily scrutinize the merits of compromises involved in suits between individual litigants cannot affect the duty of a bankruptcy court to determine that a proposed compromise forming part of a reorganization plan is fair and equitable. In re Chicago Rapid Transit Co., 196 F.2d 484 (C.A. 7th Cir.1952). There can be no informed and independent judgment as to whether a proposed compromise is fair and equitable until the bankruptcy judge has apprised himself of all facts necessary for an intelligent and objective opinion. . . ." Protective Committee for Independent Stockholders of TMT Trailer Ferry, Inc. v. Anderson, Trustee in Bankruptcy, et al., 390 U.S. 414, 424, 88 S.Ct. 1157, 1163, 20 L.Ed.2d 1 (1968).
The documents attached to the Stipulation Motion did not contain the dates suggesting alleged preferential payments to Travelers. This led to an ill-considered Stipulation. Accordingly, the order of Judge Brozman vacating the Stipulation is affirmed, or in the alternative, if the Committee and Travelers agree, the Stipulation may stand, modified to *551 exclude the preference claims of the Committee from the release. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645290/ | 994 So.2d 3 (2008)
STATE ex rel. Leo PINEYRO
v.
STATE of Louisiana.
No. 2008-KH-1722.
Supreme Court of Louisiana.
October 10, 2008.
This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court's en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.
WEIMER, J., concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/691946/ | 50 F.3d 46
311 U.S.App.D.C. 75
Sheryl CRAWFORD, Petitioner,v.UNITED STATES DEPARTMENT OF AGRICULTURE, Respondent.
No. 93-1852.
United States Court of Appeals,District of Columbia Circuit.
Argued Feb. 7, 1995.Decided March 31, 1995.
Petition for Review of an Order of the United States Department of Agriculture.
John M. Harmon, Austin, TX, argued the cause and filed the briefs, for petitioner.
Jeffrey A. Knishkowy, Atty., U.S. Dept. of Agriculture, Washington, DC, argued the cause, for respondent. With him on the brief, was James M. Kelly, Associate Gen. Counsel, U.S. Dept. of Agriculture, Washington, DC. Raymond W. Fullerton, Washington, DC, entered an appearance.
Before: WALD, SILBERMAN, and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
SILBERMAN, Circuit Judge:
1
Petitioner, a horse owner, challenges a civil penalty imposed under the Horse Protection Act for "allowing" the entry of a "sored" Tennessee Walking horse in a horse show. We deny the petition for review.
I.
2
Petitioner Sheryl Crawford owns and shows "Supreme Image," a Tennessee Walking horse. Such horses are prized for their distinctive high-stepping gait. Unfortunately, the competitive pressures of the Tennessee Walking horse industry have led some owners to "sore" their horses, inflicting injuries on the horses' forelimbs to alter their gait and improve their performance at horse shows. American Horse Protection Ass'n v. Lyng, 812 F.2d 1-2 (D.C.Cir.1987). Congress responded in 1970 with the Horse Protection Act (HPA or Act), 15 U.S.C. Sec. 1821 et seq. (1988), which outlaws such practices.1 The Act prohibits--with respect to "any horse which is sore"--the "showing or exhibiting," "entering for the purpose of showing or exhibiting in any horse show or horse exhibition," and the "allowing" of the entry, showing or exhibition of such a horse. 15 U.S.C. Sec. 1824(2)(A)-(D). Per Congress' 1976 amendments to the HPA, the government need not prove intent to sore in order to establish civil--as opposed to criminal--liability.2 See Thornton v. United States Dep't of Agriculture, 715 F.2d 1508, 1511-12 (11th Cir.1983).
3
Petitioner entered "Supreme Image" in the Belfast Lions Club Horse Show in Belfast, Tennessee, on August 1, 1986. Supreme Image was trained by Cecil Jordan; petitioner testified that she had specifically instructed Jordan not to sore the horse. Petitioner paid the entry fee and intended to ride Supreme Image in the show. Upon Jordan's presentation of the horse to the Designated Qualified Person (DQP) prior to the show, however, Supreme Image was rejected for the competition.3 Two Department of Agriculture veterinarians, Knowles and Riggins, responsible for monitoring the DQPs and compliance with the Act, then examined Supreme Image and determined that the horse was sore within the Act's definition. The veterinarians recorded their observations.
4
On September 28, 1990, more than four years after the show, the Administrator of the Animal and Plant Health Inspection Service (APHIS), an agency within the Department, instituted a disciplinary proceeding under the HPA against petitioner for "allowing" the entry of a sored horse in the Belfast show. A hearing was held on June 27, 1991, at which petitioner disputed both whether Supreme Image was sore, and whether Crawford had "allowed" the entry of a sore horse. In his Initial Decision and Order filed January 30, 1992, the ALJ discounted the reliability of the government's supporting documentation establishing that Supreme Image was sore, and dismissed the complaint against petitioner. The ALJ determined the agency did not meet its burden of proving that Supreme Image was "sore"; and he therefore did not reach the question whether Crawford had "allow[ed]" the entry of a sored horse. Although he admitted the reports and affidavits of the Department veterinarians as "probative hearsay," the ALJ found that the documents were not supported by any present recollection, and that the government had presented no corroborating notes or other verification of the accuracy of the veterinarians' examinations. In the absence of independent indicia of trustworthiness of the "hearsay" forms and affidavits, he thought the documents were insufficient to make out the government's case.
5
The Administrator appealed the Initial Decision to the Department's judicial officer, who vacated the ALJ's decision and remanded, ordering the ALJ to reweigh the evidence of soring. The judicial officer concluded that the ALJ had asked for too much, as the APA contemplates reliance upon past recollections recorded as "reliable, probative and substantial evidence." 5 U.S.C. Sec. 556(d). In his Revised Order of January 29, 1993, the ALJ determined that petitioner violated the Act by "allow[ing] a horse owned by her to be entered in a show while the horse was sore." The ALJ assessed a $2,000 civil penalty and disqualified Crawford from showing, exhibiting, entering horses or otherwise participating in horse shows or auctions for one year. Petitioner's appeal to the Department's judicial officer was denied, and this petition for review of the Department's final order followed.
II.
6
Petitioner raises two arguments. She challenges the Department's finding that the horse was sore as lacking substantial evidence on the whole record, and also disputes the Department's conclusion that she "allowed" the entry of a sored horse--which involves more a question of statutory interpretation than a finding of historical fact. As to the first argument, petitioner urges us, as she did the Department, to reject the documentary evidence prepared by the Department's veterinarians and offered by the Administrator. The very night of the examination in question, however, Dr. Riggins, one of the two examining veterinarians, filled out a departmental form entitled "Summary of Alleged Violations" which described the horse's reaction to the doctor's "digital palpation," i.e., pressing on the horse's forelimbs to test for pain response. The summary report, stating that the horse reacted repeatedly to the palpation with a pain response and diagraming the location of the soreness, was signed by both veterinarians. Shortly thereafter both doctors prepared and signed affidavits describing the examination (Dr. Knowles three days later on August 4, and Dr. Riggins on August 15).
7
To be sure, at the hearing four years later, neither doctor had an independent recollection of the events. But contrary to petitioner's contention, administrative agencies are not barred from reliance on hearsay evidence. See, e.g., Richardson v. Perales, 402 U.S. 389, 405-06, 91 S.Ct. 1420, 1429-30, 28 L.Ed.2d 842 (1971). Such evidence need only bear satisfactory indicia of reliability, Hoska v. United States Dep't of the Army, 677 F.2d 131, 138 (D.C.Cir.1982), and can constitute substantial evidence if reliable and trustworthy. Johnson v. United States, 628 F.2d 187, 190-91 (D.C.Cir.1980). Nor are the minor inaccuracies in the report--a wrongly recorded digit of the horse's identification number--of such significance as to undermine the document's reliability since the horse was otherwise correctly identified. Four years does seem a long time to await an adjudication. Yet the veterinarians, who examine hundreds of horses at many horse shows--as was brought out at oral argument--would likely forget an actual examination in a much shorter period, so the delay did not prejudice petitioner nor does it appear relevant to the hearsay issue.
8
Petitioner offered her own testimony and that of her husband, her trainer, and a friend, as to the horse's condition and the circumstances surrounding the examination. Of those witnesses only petitioner observed the veterinarians' examination of the horse (it is perhaps noteworthy that after the DQP rejected Supreme Image, the trainer left the examination area). The others merely testified as to alternative reasons for the horse's reaction to diagnosis, that the horse was agitated because it had been transported with a mare in season and that the examination area, where the horse was required to remain for over an hour, was crowded. Petitioner herself did observe the veterinarians examine the horse and administer digital palpation three times, but she does not contradict directly the doctors' report. She testified only that neither doctor told her the horse was sore.4 But it does not appear that the veterinarians expressed to her any conclusion one way or another.
9
It is undisputed, then, that the two doctors examined Supreme Image the night of August 1, 1986, after the DQP had rejected the horse for ostensible soreness, and that the doctors' summary report described soreness in the horse's legs per the digital palpation diagnostic procedure. Once the veterinarian's reports, which are essentially uncontradicted, are determined to be admissible we think it impossible to conclude that the Department's ruling is not supported by substantial evidence on the whole record. Trying another approach to discredit the reports, however, petitioner disputes the reliability of digital palpation, at least by itself, as a method of determining whether a horse is sore--despite a Department regulation, 9 C.F.R. Sec. 11.1 (1990), which explicitly approves that technique. Petitioner relies on Congress, which she points out, has expressed the same concern as does petitioner. In a recent Appropriations Act, Congress included a rider on the Department's appropriation:
10
For expenses, ... to carry out inspection, quarantine, and regulatory activities; ... $432,900,000, ... provided further, that none of these funds shall be used to pay the salary of any Department Veterinarian or Veterinary Medical Officer who, when conducting inspections at horse shows, exhibitions, sales, or auctions under the Horse Protection Act, as amended (15 U.S.C. 1821-1831), relies solely on the use of digital palpation as the only diagnostic test to determine whether or not a horse is sore under such Act.
11
Pub.L. No. 102-341, 106 Stat. 873, 881-882 (1992) (emphasis added). It does seem, then, that horse owners were persuasive in making petitioner's argument before Congress, but that was only so after the events that gave rise to this case. Obviously we cannot be influenced by Congress' subsequent actions; the legality of the Department's decision has to be judged by the law in effect at the time of the inspection and the proceeding before the Department. And we have no legitimate basis to reject digital palpation as a diagnostic technique, whether used alone or not, prior to the passage of the appropriations rider.
12
That brings us to petitioner's second argument: that on the facts presented, the Department could not conclude that petitioner "allow[ed]" the entry of a sore horse. This textual argument turns on the meaning of the word "allow." The Department contends that an owner can always prevent a horse from being sored, and that therefore an owner is liable if her horse is entered, showed, or exhibited while sore. Petitioner, on the other hand, maintains that the word "allow" necessarily implies knowledge of the sore condition, or at least requires proof of circumstances that would alert the owner that someone--normally, we would suppose, the trainer--was soring the horse. In this case, it will be recalled, the petitioner testified, without contradiction, that she instructed the trainer not to sore the horse. Petitioner accuses the Department of interpreting the word "allow" so as to create absolute liability for an owner regardless of the circumstances that caused a horse's soreness.
13
This issue has generated much discussion and concern in our fellow circuits. The Eighth Circuit, Burton v. United States Dep't of Agriculture, 683 F.2d 280, 282-83 (8th Cir.1982), and the Sixth Circuit, Baird v. United States Dep't of Agriculture, 39 F.3d 131, 137-38 (6th Cir.1994), have rejected the Department's interpretation and have held that if an owner produced uncontradicted evidence that he or she instructed a trainer not to sore the horse, the Department must in turn show that the instruction was a ruse or that the owner nevertheless had knowledge that the horse was sore. Compare Thornton v. United States Dep't of Agriculture, 715 F.2d 1508, 1511-12 (11th Cir.1983); see also Stamper v. Secretary of Agriculture, 722 F.2d 1483, 1488-89 (9th Cir.1984).
14
We respectfully disagree with our sister circuits who have required the Department to produce evidence rebutting an owners' prophylactic instruction. Congress did not state that an owner is liable if she authorizes or causes a horse to be sored. The word "allow" is a good deal softer, more passive, and it can have varying meanings, e.g., "to permit by neglecting to restrain or prevent," or "to make a possibility: provide opportunity or basis" or (most strongly) "to intend or plan." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 58 (1971). Since the word is ambiguous, we are obliged underChevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984), to defer to the Department's interpretation of the term (so long as reasonable), which we take to be among the weaker ones in Webster's, "to permit by neglecting to restrain or prevent." Accordingly, if an owner enters or shows a sore horse, the Department assumes that he or she has not prevented someone in his or her employ from soring the horse. And, by itself, testimony that the owner "instructed" the trainer not to sore the horse will not exculpate the owner. In so concluding, the Department merely takes into account the obvious proposition that the owner has the power to control his or her agents.
15
The Sixth Circuit recognized (in a footnote) that Chevron governed review of the Department's interpretation, but concluded the Department's interpretation was unreasonable. Baird, 39 F.3d at 137 n. 10. The court looked to Black's Law Dictionary, which does state that " 'allow' has no rigid or precise meaning" but then goes on to say, "[t]o sanction, either directly or indirectly, as opposed to merely suffering a thing to be done" (even that dictionary does, in a contradictory fashion, submit as an alternative, "to suffer; to tolerate"). From that language the court concluded that
16
[A]s the above definition makes clear, there are basically two ways to allow something to happen: either 'directly,' e.g., explicitly condoning or authorizing the conduct or act in question; or 'indirectly,' e.g., by failing to prevent such conduct or act--in other words, by 'looking the other way' or by 'burying one's head in the sand.'.... Liability would follow in this latter instance if, for example, an owner had cultivated a training atmosphere conducive to soring, or had done nothing to dissuade the practice, knowing the tactics of his trainers in particular and/or the pervasiveness of the practice in general.
17
Baird v. U.S. Dep't of Agriculture, 39 F.3d at 137.
18
The Sixth Circuit's interpretation of the language is certainly plausible, but we do not agree with its conclusion that the Department's interpretation is unreasonable or is functionally equivalent to the imposition of absolute liability. The Department merely holds the owner responsible for the actions of her agents (particularly the trainer) and will not permit the owner to escape liability by testifying that she instructed a trainer not to sore. It might well be an entirely different case--we have been able to find none--if an owner were able to show that a horse was sored by a stranger or someone not under the owner's control. And, it is of course conceivable that a trainer would flatly disobey an owner's instruction. If an owner produced such evidence--together, presumably, with a showing that the trainer had been terminated--it might well be that the Department could not conclude reasonably that the owner "allowed" the entry of a sore horse. That is not this case, however, and that apparently has not been the pattern of most of these cases.5
19
The Sixth Circuit recognized the government's concern that an owner could easily offer evidence of a prophylactic instruction without real fear of contradiction (trainers would be unlikely to cross the owners), but the court concluded that this risk was simply a hazard of litigation: the government still had the "burden" of disproving the sincerity of the instruction. Baird, 39 F.3d at 138 n. 11. That amounts to putting an enormous burden and expense on the Administrator to establish how the horse came to be sored, a burden that would be required if the statute called for a sanction if an owner "caused" or "authorized" the soring. Since the statute uses the term "allow" (i.e., "permit," or "does not prevent"), we do not think the Administrator must shoulder such a task just because the owner produces evidence of her instruction to the trainer. After all, the instruction is not introduced to establish that the horse was not sore but rather to relieve the owner of any responsibility for the soreness. Yet the instruction, by itself, even were it deemed totally sincere, is not necessarily inconsistent with the proposition that the owner "permitted"--for example, through neglect or lack of vigilance--the horse to be sored. It is unimaginable that an owner would be unfamiliar with soring practices generally, as well as the Department's enforcement efforts, therefore if an owner's horse were sored, notwithstanding her instruction, she could be said to have "put her head in the sand"--unless something quite extraordinary occurred.
20
The Department apparently believes that an owner can and must do a good deal more than simply give the bare instruction to be thought to have "prevented" her own horse from being entered in a sore condition. The issue does not involve so much an allocation of burdens, as the Sixth Circuit thought,6 but rather the weight the Department must give to evidence of the owner's instruction in light of the Department's interpretation of the statute. We do not think, in that context, it is unreasonable for the Department to conclude that such an instruction will not exculpate an owner for the statutory responsibility for allowing the entry of a sore horse.
21
* * * * * *
22
For the aforementioned reasons, the petition for review of the Department's order is hereby denied.
1
"Soring" is defined in the HPA as where "an irritating or blistering agent has been applied, internally or externally," "any burn, cut or laceration has been inflicted by a person on any limb of a horse," "any tack, nail, screw, or chemical agent has been injected by a person into or used by a person on any limb of a horse," or "any other substance or device has been used" to accomplish soring. 15 U.S.C. Sec. 1821(3)(A)-(D). The Act as amended in 1976 creates a presumption that a horse that "manifests abnormal sensitivity or inflammation in both of its forelimbs or both of its hindlimbs" is sore. 15 U.S.C. Sec. 1825(d)(5)
2
The criminal penalties under the Act are for "knowing" violations, 15 U.S.C. Sec. 1825. A party incurring civil liability under 15 U.S.C. Sec. 1824 "shall be liable to the United States for a civil penalty of not more than $2,000 for each violation ...," 15 U.S.C. Sec. 1825(b)(1), and "may be disqualified by order of the Secretary, after notice and opportunity for a hearing before the Secretary, from showing or exhibiting" horses or otherwise participating in the horse industry "for a period of not less than one year for the first violation and not less than five years for any subsequent violation." 15 U.S.C. Sec. 1825(c)
3
The DQP is typically a person employed by the horse show to inspect horses and determine if the horses are sore. DQPs are utilized to protect the show management from liability under the Act. See 15 U.S.C. Sec. 1824(3). The DQP here, Charles Thomas, was employed through the National Horse Show Commission
4
She did also claim that she overheard Dr. Riggins tell Dr. Knowles that "he could not find anything wrong," but did not know whether he was referring to only one leg
5
But see Baird, 39 F.3d at 138, where it was at least shown that the owner had taken horses away from trainers engaged in soring
6
Compare Director, OWCP v. Greenwich Collieries, --- U.S. ----, ---- - ----, 114 S.Ct. 2251, 2257-58, 129 L.Ed.2d 221 (1994) (discussing agency's "burden of persuasion" and production under APA and substantive statute) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/8304601/ | WILLIAM G-. BROWN, Sp. J.
Complainant, Walter White filed his bill in the Chancery Court of Rhea County seeking an injunction to prevent the County Court from electing his successor to the office of superintendent of Public Instruction for Rhea County. The case is before this court on the Chancellor’s decree of dismissal.
Complainant was elected to the office under provisions of Chapter 443 of the Private Acts of 1941 for a four year term beginning July 1,1946. This Act fixes the term of office for four years and until a successor is elected and qualified. It was repealed by Chapter 28 of the Private Acts of 1949, which became effective January 18, 1949. By virtue of this repeal, the Superintendent of Public Instruction for Rhea County would thereafter be elected as provided by general statute, Code Section 2320b.
Section 2320b provides that the election of the County Superintendent of Public Instruction shall be held at the first meeting of the Quarterly County Court in the year 1945 and quadrennially thereafter. Since Rhea County was operating under a private act in 1945 and 1949, no election was held as provided by the general act in either year.
*429On June 22, 1950, ten Justices of the Peace of Rhea County placed an advertisement in the Dayton Herald announcing that an election was to be held for the office of Superintendent of Schools at the Conrt’s regular meeting July 3, 1950.
On July 1st complainant applied for an injunction to prevent the holding of said election as advertised on July 3, 1950, or any other date in July 1950. In the bill he also asked that his rights to said office be declared until the next regular election as provided by law. A fiat was granted July 1, 1950', and the bill was filed July 3rd. Defendants upon being notified of the injunction took no action on July 3rd relative to electing a successor to complainant, and so far as the record discloses took none during July 1950. Answer was filed by defendants, together with motion to dissolve the injunction. Prior to the hearing on the motion, defendants amended their answer to show that complainant had not made bond within five days of the granting of the fiat. At the hearing the Chancellor found that since no bond had been filed within five days from the time of the granting of the fiat, there was no injunction in force.
The Rules of Practice for the Chancery Court, Rule 5, Section 5, Section 10605 of the Code, provides that the bond required by a fiat shall be executed or taken within five days after the date of such fiat. Upon the failure of the complainant to file such a bond within five days, there was no injunction in force to dissolve, and we think the Chancellor was correct in so holding.
Thereupon the Court proceeded to consider the bill as an application for an injunction and finding that complainant was not entitled thereto, dismissed the bill. If the bill shows on its face that the complainant is entitled to no relief, it may be dismissed on a motion to *430dissolve the injunction, Merriman v. Norman, 56 Tenn. 269; Mayse v. Biggs, 40 Tenn. 36; or by the Court on its own motion, Lane v. Farmer, 79 Tenn. 568.
If there was no equity on the face of the hill or if complainant could not maintain the hill in any event, the action of the Chancellor was correct. We now consider that question.
Under the provisions of the 1941 Act, at its regular session in 1946 the Bhea County Court elected complainant County Superintendent for a term of four years, which term would expire July 1, 1950. This Act, as hereinbefore pointed out, was repealed effective January 18, 1949, leaving the general section of the Code applicable to Bhea County. Under the plain provisions of the Act of 1941, complainant’s term expired July 1, 1950. The question is whether Section 2320b authorizes the election of his successor or whether he holds over until 1953, the expiration of the regular four-year term provided by Section 2320b. Insistence is made that since the County Court did not elect a County Superintendent under the general law in 1949 that it is prevented from doing so until 1953. This we think is an erroneous conclusion. Section 2320b provides: “In all cases where now or hereafter the method of election shall not be fixed differently by special legislation, the quarterly county court of the several counties of this state are hereby authorized to elect some person possessing the appropriate qualifications as county superintendent of public instruction. The election thereof shall be conducted in the same manner as other elections by the quarterly county court and shall be held at the first meeting of said quarterly county court, in the year 1945 and quadrennially thereafter. The person so elected shall possess all qualifications *431therefor now required by law and upon Ms election, shall execute bond in an amount to be fixed by the county judge or chairman and likewise take an oath to faithfully discharge the duties of his office. The term of such person so elected shall begin on January 15 next following his or her election, except in cases where for any cause whatsoever such election be not held on or before January 15 of the appropriate year, then such term shall begin ten days following the date of such election.” (Emphasis ours.)
We construe this statute to mean that when complainant’s term of office expired on July 1, 1950, the County Court was authorized to elect his successor at any time after July 1, 1950, and that the term of office of his successor would begin ten days following the date of such election. The fact that there was a private act in force which prevented an election being held under Section 2320b was a cause excusing such an election within the meaning of said section. To hold otherwise would permit complainant under his election in 1946 to hold until 1953, contrary to the express term provided for him by the very act under which he was elected. His term would thus be extended merely by the repeal of the special act. A situation similar in principle was discussed in State ex rel. Tidwell v. Morrison, 152 Tenn. 59, 274 S. W. 551, 552:
“It is urged, however, that the county court of Lawrence county, having failed to hold an election for this office at its January, 1925 term, cannot lawfully hold such an election at a subsequent term, preceding the January, 1927, term. In other words, that the present incumbent of the office of county superintendent must hold over for another full term of two years.
*432‘ ‘ This argument is not well founded. In Lynch v. Lafland et al., 44 Tenn. [96] (4 Cold.) 96, it appeared that the duty of electing a city physician was devolved .upon the board of aldermen of the city of Memphis. For reasons stated in the opinion of the court, the .board of aldermen did not elect a city physician at the time specified by the charter, but an election of this official was had at a later meeting. Said election was upheld, and the court said:
“ ‘It is equally clear, we think that the failure to elect on the charter day even under the principles of the common law, as well as our own decisions and statutes, does not take away from the corporation, the right to hold an election afterwards, when the annual day of election, as in this case, has passed by without fraud or design. 2 Kent’s Com., 295, Mar.; Nashville Bank v. Petway [22 Tenn. 522], 3 Humph. 522. See, also, Code of Tenn., Secs. 1481, 1365, 1378.’
“The general rule is to the same effect, and statutes fixing the time for holding an election by a municipal board are ordinarily construed as directory ‘to the extent of permitting and authorizing an election or appointment at a latter day than that named in the law, where the body whose duty it is to elect or appoint on a day certain neglects to perform the duty and the obligation still remains. ’ 28 Cyc., 405. This principle has been lately recognized by this court in Conger v. Roy, 151 Tenn. 30, 267 S. W. 122, where a county clerk, holding over on account of a void election, was declared to hold only until the next biennial election, although the term of the county clerk is four years.
“Inasmuch, therefore, as the obligation still rests upon the quarterly county court of Lawrence county to elect a successor to the county superintendent of schools *433elected at its January, 1923, term, that duty should be discharged at the first meeting of said body occurring after proper notices of this election have been given. Said election may be held at a regular meeting of the quarterly court or at a special meeting of the quarterly court properly called under section 5997, Thompson’s-Shannon’s Code. Walmsley v. Franklin County, 133 Tenn. 579, 182 S. W. 599.”
We therefore hold that the term to which complainant had been elected expired July 1,1950. Until that time the Court could not elect his successor. At its July meeting therefore it was presented with its first opportunity for such election. The regular date in 1949 fixed by Section 2320b having been passed without fraud or design but by express provision of the Private Act applicable to Ehea County, it follows that it would have been proper for an election to have been made on the first day of the July term.
It is quite obvious, however, that no such election took place at that time because of the injunction proceedings. For that reason we find it unnecessary to pass on the question of the notice alleged to have been given by the ten members of the Court. If and when a successor to complainant is elected, if other than complainant, the question may then be presented as to the timeliness and method of notice.
Under the rulings in the cases of Merriman v. Norman, Mayse v. Biggs, Lane v. Farmer, supra, Mengle Box Company v. Lauderdale County, 144 Tenn. 266, 230 S. W. 963, and Barthell v. Zachman, 162 Tenn. 336, 36 S. W. (2d) 886, we are of the opinion that the bill should have been dismissed.
We are not unmindful of Section 10618, which provides that this Court shall not have jurisdiction *434over cases involving the right to hold a public office. This is not a proceeding between two individuals claiming the right to hold office but is a proceeding wherein complainant seeks an injunction against the election of his successor. The right to hold public office is only incidentally involved in the determination of the question of his right to the injunction. For that reason we have assumed jurisdiction.
The Chancellor is affirmed at appellant’s costs.
McAmis and Hale, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1601543/ | 1 So. 3d 186 (2009)
M.W.
v.
STATE, DEPT. OF CHILDREN & FAMILY SERVICES.
No. 2D09-434.
District Court of Appeal of Florida, Second District.
February 17, 2009.
Decision without published opinion. App.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2860075/ | CV6-236.Bell
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00236-CV
William Wayne Bell, Appellant
v.
John Sharp, Comptroller of Public Accounts of the State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. 95-01856, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING
PER CURIAM
William Wayne Bell attempted to appeal a final judgment favoring John Sharp, the
state comptroller. The transcript was timely received. In reviewing the transcript, the Court
noted that Bell's affidavit of inability to pay costs, while timely filed, was defective because it
lacked a showing that Bell gave the required two-day notice to the opposing party and the court
reporter that he was filing an affidavit of inability to pay costs. See Jones v. Stayman, 747
S.W.2d 369, 370 (Tex. 1987) (notice to opposing party and court reporter gives them opportunity
to contest party's affidavit); Tex. R. App. P. 40(a)(3)(b). Bell's defective affidavit of inability
to pay costs represents a bona fide attempt to perfect an appeal, and thus, this Court has
jurisdiction over the appeal. Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994).
By letter of April 30, 1996, the clerk of this Court wrote Bell, noted the deficiency
in his affidavit, and provided Bell an opportunity to correct the defective affidavit of inability or
file a proper perfecting instrument. Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports,
Inc., 813 S.W.2d 499, 500 (Tex. 1991); Tex. R. App. P. 83. The Court gave Bell until May 20,
1996, to file with this Court a supplemental transcript containing a proper perfecting instrument.
After receiving no response from Bell, on May 29, 1996, the clerk of this Court sent a second
letter to Bell informing him that if he did not submit to the Court a supplemental transcript
containing a proper perfecting instrument by June 24, 1996, his appeal may be dismissed. See
Tex. R. App. P. 60(a)(2).
The time for filing a supplemental transcript containing a proper perfecting
instrument has passed with no action by Bell. We dismiss the cause for failure to comply with
the requirements of the Texas Rules of Appellate Procedure. Tex. R. App. P. 60(a)(2).
Before Chief Justice Carroll, Justices Aboussie and Kidd
Dismissed
Filed: July 17, 1996
Do Not Publish | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1601549/ | 1 So. 3d 181 (2009)
PARKS
v.
STATE.
No. 1D08-3131.
District Court of Appeal of Florida, First District.
January 30, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601577/ | 1 So. 3d 946 (2009)
Keehan Andre HOYE a/k/a Kenya Hoye a/k/a Kenny Hoye, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2007-KA-01985-COA.
Court of Appeals of Mississippi.
January 27, 2009.
*947 Edmund J. Phillips, attorney for appellant.
Office of the Attorney General by W. Glenn Watts, attorney for appellee.
Before KING, C.J., GRIFFIS and CARLTON, JJ.
*948 GRIFFIS, J., for the Court.
¶ 1. Keehan Andre Hoye was found guilty of selling cocaine and sentenced to thirty years in the custody of the Mississippi Department of Corrections. On appeal, Hoye argues that: (1) the trial court abused its discretion when it admitted a videotape; (2) the verdict was against the overwhelming weight of the evidence; and (3) the trial court erred when it denied his motion for a directed verdict, request for a peremptory instruction, and motion for a new trial. We find no error and affirm.
FACTS
¶ 2. Hoye was indicted for willfully, unlawfully, feloniously, and knowingly selling and delivering a Schedule II controlled substance, cocaine, to a Mississippi Bureau of Narcotics confidential informant, pursuant to Mississippi Code Annotated section 41-29-139(a)(1) (Rev.2005). Hoye was indicted as a second offender pursuant to Mississippi Code Annotated section 41-29-147 (Rev.2005) because he had a prior felony conviction for the sale of cocaine in 2001.
¶ 3. On December 8, 2006, Officer Will Peterson, an agent with the MBN, worked with Gina Lewis, a confidential informant, to purchase drugs from Hoye. Lewis called Hoye, whom she knew as Keno, and arranged the time and place for the transaction. She purchased .39 gram of cocaine from Hoye for $40, which was given to her by Officer Peterson.
¶ 4. The transaction was recorded by an audio recorder and video camera on Lewis's car, as well as an audio recorder and video camera worn by Lewis. Lewis and her car were searched prior to the transaction to ensure that she did not have any contraband. After the transaction, Lewis met Officer Peterson and turned over the cocaine which was received, packaged, and marked before being taken to the state crime lab for identification.
¶ 5. Officer Peterson testified that he took possession of the audio and video equipment at the post-buy meeting. He identified a tape as the VCR tape that was used to download the video and testified that he had watched it, and it was an accurate depiction of the tape made that day. Lewis identified the same VCR tape as a tape of the transaction. She testified that she had reviewed the tape; it accurately and correctly showed the transaction; and it had not been altered or changed in any way. Defense Counsel objected, stating that "[u]nless she's the one that handled it and took it out and reported all that stuff, I don't know how she can identify that particular tape." After a bench conference, which is not in the record, the trial court overruled the objection. The videotape of the transaction was played for the jury. After viewing the video in front of the jury, Lewis again testified that it accurately and clearly showed the transaction.
ANALYSIS
1. Did the trial court abuse its discretion when it admitted the videotape?
¶ 6. Hoye argues that the trial court improperly admitted the videotape of the transaction. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Juarez v. State, 965 So. 2d 1061, 1065(¶ 9) (Miss. 2007). The supreme court has stated that "[c]ounsel must make specific objections in order to preserve a question for appellate review. This Court has said many times that general objections will not suffice. Objections to the admissibility of evidence must specifically state the grounds; otherwise, the objection is waived." Seeling v. State, 844 So. 2d 439, 445(¶ 17) (Miss.2003).
*949 ¶ 7. Hoye argues that the videotape is inadmissable under Rule 1002 of the Mississippi Rules of Evidence. The State responds that the issue was waived for failure to object and lacks merit because at trial Hoye argued what the video did and did not show. Hoye made an objection at trial, but he did not object to the video under Rule 1002, which requires an original writing, recording, or photograph. His objection was that "[u]nless she's the one that handled it and took it out and reported all that stuff, I don't know how she can identify that particular tape." There is nothing in his objection that would have allowed the trial judge to rule on the admissibility of the videotape as an original under Rule 1002 or a duplicate under Rule 1003. Thus, we conclude that Hoye waived this issue.
¶ 8. Notwithstanding the procedural bar, we will briefly address the merits of this issue. Hoye's argument lacks factual support. He argues that the videotape is a duplicate of a composite of two separate video recordings of the transaction, one from Lewis and one from her car. While Officer Peterson and Lewis testified that there were two video cameras used to record the transaction, neither testified that the videotape was a composite of the two video recordings. Lewis and Officer Peterson authenticated the videotape through testimony that the videotape accurately showed the transaction and that the videotape had not been altered. This argument has no support in the record. Therefore, this issue is without merit.
2. Was the verdict against the overwhelming weight of the evidence?
¶ 9. Hoye claims that the jury's verdict is against the overwhelming weight of the evidence. When this Court reviews "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." Bush v. State, 895 So. 2d 836, 844(¶ 18) (Miss.2005). The evidence is "weighed in the light most favorable to the verdict." Id. "[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict." Id. (quoting Amiker v. Drugs for Less, Inc., 796 So. 2d 942, 947(¶ 18) (Miss.2000)). If the verdict is against the overwhelming weight of the evidence, "the proper remedy is to grant a new trial." Id.
¶ 10. Specifically, Hoye argues that: (1) Lewis is lying because it is illogical that he would have placed the cocaine in his lap with his dog; (2) Lewis had motive to lie because she was in trouble with the Morton Police Department; and (3) the cocaine is not seen in the video. Lewis testified that when she met Hoye for their prearranged drug deal, he was sitting in his SUV with the door open, had a dog in his lap, and reached inside his jacket and placed the cocaine on his leg. She testified that they simultaneously exchanged $40 and the drugs. The record contains no information about the size or temperament of the dog only that the dog was in Hoye's lap during the transaction. Viewing the evidence in the light most favorable to the verdict, despite the fact that it is not ideal to put cocaine and a dog in your lap, we find no reason to doubt the accuracy of Lewis's account of the transaction.
¶ 11. Lewis admitted during the trial, when questioned by the defense, that she was in trouble with the Morton Police Department for uttering a forgery, and the police were going to make a favorable recommendation to the district attorney's office in exchange for her cooperation as a *950 confidential informant. She testified that no one had promised her anything or had asked her to lie. While Lewis's character for truthfulness was in issue, the jury heard her testimony, weighed all the facts, and found her testimony believable.
¶ 12. Hoye asserts that the contraband is not shown in the video. The video of the transaction is not in the record; therefore, we are unable to make any finding about the weight of this evidence or the factual merit of this claim. Even if the contraband is not seen on the video, if the video evidence is consistent with Lewis's account of the transaction, then it supports the jury's guilty verdict.
¶ 13. Officer Peterson and Lewis both testified that Lewis and her car were searched prior to the transaction, and no contraband was found. Lewis and her car had audio and video equipment that ran from the time she left Officer Peterson to the time she returned to the post-transaction meeting with the cocaine. The jury watched the video showing the interaction between Hoye and Lewis. Looking at the ample evidence in the light most favorable to the verdict, an unconscionable injustice does not result from the jury's verdict. We do not find the evidence preponderates heavily against the jury's decision. Thus, the trial court did not abuse its discretion by denying Hoye's motion for a new trial.
3. Did the trial court err when it denied Hoye's motion for a directed verdict, request for a peremptory instruction, and motion for a new trial?
¶ 14. Hoye's only argument with respect to this issue is that the indictment stated that he sold and delivered a Schedule II controlled substance to a MBN confidential informant number 96-2006, and at trial, the prosecution did not prove that Lewis was confidential informant number 96-2006.
¶ 15. "[T]he standard of review for denials of motions for [a] directed verdict... and a request for a peremptory instruction is the same." Easter v. State, 878 So. 2d 10, 21(¶ 36) (Miss.2004) (citations omitted). When reviewing a motion for a directed verdict, the Court looks to the sufficiency of the evidence. Bush, 895 So.2d at 843(¶ 16). The supreme court stated:
[s]hould 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.
Id. (citing Edwards v. State, 469 So. 2d 68, 70 (Miss.1985)). However, if reasonable jurors could have reached different conclusions with respect to every element of the offense, the evidence will be considered sufficient. Id. The prosecution receives the benefit of all "favorable inferences that may be reasonably drawn from the evidence" when determining if the evidence presented was sufficient to support the verdict. Smith v. State, 839 So. 2d 489, 495(¶ 12) (Miss.2003).
¶ 16. Hoye was charged with selling and delivering a Schedule II controlled substance under section 41-29-139(a)(1), which makes it "unlawful for any person knowingly or intentionally: (1)[t]o sell, barter, transfer, manufacture, distribute, dispense or possess with the intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance[.]"
¶ 17. Hoye asserts for the first time on appeal that the State, during its case-in-chief, failed to specifically identify Lewis as confidential informant number 96-2006. *951 Hoye cites McBeth v. State, 50 Miss. 81 (1874) (overruled on other grounds) for the proposition that the identity of persons integral to the charge must be proved as alleged in the indictment, but his reliance is misplaced. "[T]he law requires that the name of the person upon whom the felony was committed, or who was injured," be correctly given in the indictment. Id. at 84. Additionally, Hoye cites Reed v. State, 506 So. 2d 277, 279-80 (Miss.1987), but Reed addresses the deletion of a victim's name from an indictment, not the identity of an informant.
¶ 18. Hoye's argument that the State's case-in-chief is insufficient because of the failure to specifically identify Lewis as confidential informant number 96-2006 fails. This Court has held "that such variance between the indictment and the proof presented at trial is not considered a fatal variance." Jerninghan v. State, 910 So. 2d 748, 751(¶ 8) (Miss.Ct.App.2005) (citing Banks v. State, 394 So. 2d 875, 877 (Miss. 1981)).
¶ 19. In Jerninghan, just as here,
[t]he State demonstrated that Mark Triplett was indeed "Confidential Informant #CI-326-03" through Triplett's testimony concerning the purchase of the cocaine from Jerninghan, through Triplett's testimony concerning the circumstances under which he began working in the capacity of a confidential informant, and by showing a videotape of the sale taking place. The State thoroughly demonstrated that Triplett purchased $50 worth of cocaine from Jerninghan while acting as a confidential informant for the Tri-County Narcotics Task Force, further establishing his identity as "Confidential Informant # CI-326-03."
Id. at 752(¶ 9).
¶ 20. In his motion for a directed verdict on the grounds that the State failed to make out a prima facie case, Hoye "must [have stated] specifically wherein the [S]tate ... failed to make out a prima facie case. In the absence of such specificity, the trial court will not be put in error for overruling same." Banks, 394 So.2d at 877. The testimony clearly showed Lewis was the confidential informant named in the indictment. Hoye failed to specify the grounds for the motion for a directed verdict and raises this alleged error for the first time on appeal. Based on the supreme court's decision in Banks, we find this issue is without merit.
¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF SCOTT COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601588/ | 1 So. 3d 645 (2008)
STATE of Louisiana, Appellee,
v.
James L. McGRAW, Appellant.
No. 43,778-KA.
Court of Appeal of Louisiana, Second Circuit.
December 10, 2008.
Rehearing Denied January 8, 2009.
*648 W. Jarred Franklin, Louisiana Appellate Project, for Appellant.
*649 Jerry L. Jones, District Attorney, R. Nicholas Anderson, Assistant District Attorney, for Appellee.
Before CARAWAY, PEATROSS and DREW, JJ.
CARAWAY, J.
James McGraw was convicted after a jury trial of attempted possession of a controlled dangerous substance, Schedule III (hydrocodone), in violation of La. R.S. 14:27 and La. R.S. 40:968. McGraw received the maximum sentence of two and one-half years' imprisonment at hard labor. He now appeals contesting, among other issues, the validity of the search of his vehicle. He also alleges an excessive sentence. We now affirm the conviction and sentence.
Facts
On December 6, 2005, the state filed a bill of information charging McGraw with possession of hydrocodone (in violation of La. R.S. 40:968), possession of marijuana (in violation of La. R.S. 40:966), possession of an open container (in violation of La. R.S. 32:300), and making an improper turn (in violation of La. R.S. 32:104 B). The charges were severed. The instant case relates to possession of hydrocodone charge stemming from a late-night traffic stop in which McGraw, the driver, and Leon Day, the passenger, were ultimately arrested. Trial of this matter revealed the following facts.
On October 26, 2005, Monroe Police Officer Satre observed McGraw make an improper turn at an intersection. Officer Satre stopped, approached McGraw's vehicle and asked for his license and registration. The officer's testimony revealed the following concerning McGraw's arrest that led to the vehicle's search:
A. I made contact with Mr. McGraw, asked for his driver's license, registration, insurance which he gave me. And I observed a cup in his cup holder.
Q. With regard to placing Mr. McGraw under arrest, had you made a decision at that point in time on what to do with Mr. McGraw?
A. No, sir.
Q. So you're investigating the improper turn, received his driver's license, registration, insurance. All that seemed to be in order?
A. Yes, sir.
Q. And then notice a cup in the cup holder?
A. Yes, sir.
Q. What did you do then? Did you take possession of that?
A. Took possession and smelled it. It smelled like an alcoholic beverage.
Q. What did you do with the cup at that point in time?
A. I threw it out. Well, I poured the drink out.
Q. What did you do with Mr. McGraw at that time?
A. At that point, well, at that point I decided thatI don't know if I thought he made ayou know lied to me or not. I made the decision to arrest him for the improper turn.
Q. Did you place him anywhere?
A. I took him out of the car and placed him in my patrol car.
The arrest reports show that McGraw was also arrested for a violation of the open container law, but Officer Satre's testimony does not indicate when that arrest was made.
At some point in time after the above events, Officer Satre searched "just the driver's side" of McGraw's vehicle, which he characterized as the area where McGraw could reach. In the middle console, Satre discovered what laboratory *650 tests later identified as hydrocodone. He also found what was later determined to be marijuana in the driver's door pocket. Officer Satre also placed McGraw under arrest for possession of hydrocodone and marijuana. A subsequent search of his person uncovered over $500 in cash.
Monroe Police Corporal James Crouch provided Officer Satre with backup assistance. Corporal Crouch testified that he assisted Officer Satre with finding the passenger's identity. Crouch's warrant check on Day showed that he had an outstanding warrant in Monroe City Court. Corporal Crouch got Day out of the vehicle, arrested him on the outstanding warrant and took him to his unit to do a search. Corporal Crouch noticed that Day's hand was clenched. When he asked Day to open his hand, Day attempted to throw something into the air, but the officers successfully restrained him and confiscated a rock of crack cocaine. Day was ultimately held on the outstanding warrant and arrested for two counts of resisting an officer and one count of possession of cocaine.
McGraw's friend and sole defense witness, David Cyrus, Jr., testified that at some point before the defendant's arrest, he had detailed McGraw's vehicle, and another customer's. As part of his cleaning procedure, he removed the personal property from both cars, cleaned them, and placed their property back into their respective cars. Around the day McGraw was arrested, the other customer complained to Cyrus that various CDs and a napkin containing a Lortab (a pink pill) was missing from his car. When Cyrus heard about McGraw's arrest, he testified that he realized he might have inadvertently placed the Lortab in the wrong vehicle. Cyrus reiterated several times that he knew the pill was pink because he had actually seen it. Upon cross-examination, Cyrus admitted that the hydrocodone admitted into evidence was not pink.
A six-person jury convicted McGraw of the responsive verdict of attempted possession of hydrocodone. A post-judgment verdict of acquittal was denied by the trial court, and McGraw was sentenced to the maximum term of two-and-one-half years at hard labor on May 15, 2008.[1]
Discussion
McGraw argues that the state failed to prove that he was in constructive possession of the hydrocodone due to the lack of evidence that the drug was in his dominion and control or that he had knowledge of the drug in his car.
When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S. Ct. 970, 67 L. Ed. 2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So. 2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So. 2d 347, writ denied, 97-1203 (La.10/17/97), 701 So. 2d 1333. This standard, now legislatively embodied in La. C. *651 Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So. 2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So. 2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So. 2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So. 2d 508, writ denied, 02-3090 (La.11/14/03), 858 So. 2d 422.
The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Owens, 30,903 (La. App.2d Cir.9/25/98), 719 So. 2d 610, writ denied, 98-2723 (La.2/5/99), 737 So. 2d 747.
When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So. 2d 471 (La.1983); State v. Robbins, 43,129 (La.App.2d Cir.3/19/08), 979 So. 2d 630. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Robbins, supra. A conviction based upon circumstantial evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.
The elements of attempted possession of hydrocodone require a person to knowingly or intentionally do or omit an act for the purpose of and tending directly toward the accomplishing of the possession of hydrocodone, a Schedule III drug, without a valid prescription or in the absence of an enumerated professional practice. La. R.S. 14:27; La. R.S. 40:968. To prove attempt, the State must show that the defendant committed an act tending directly toward the accomplishment of his intent, possession of the drug. State v. Chambers, 563 So. 2d 579 (La.App. 4th Cir.1990).
It is not necessary for the state to prove that the defendant was in actual possession of the contraband; rather, proof of constructive possession is sufficient. Constructive possession is shown when the state proves that the contraband was within the defendant's dominion and control and that the defendant had knowledge of its presence. State v. Toups, 01-1875 (La. 10/15/02), 833 So. 2d 910; State v. Robbins, supra.
The mere presence of a person in the place where contraband is found or the mere association with another person possessing contraband is not sufficient to prove constructive possession. State v. Harris, 94-0970 (La. 12/8/94), 647 So. 2d 337; State v. Robbins, supra. Guilty knowledge is an essential element of a possession charge, and such knowledge may be inferred from the circumstances. State v. Toups, supra; State v. Robbins, supra. A determination of whether the defendant was in possession depends on the "peculiar facts" of each case, which may include the following: (1) the defendant's knowledge that the contraband is in an area; (2) his relationship with the person found to be in actual possession; (3) his access to the area where the drugs were found; (4) evidence of recent drug use; and (5) the defendant's physical proximity to the contraband. State v. Robbins, supra. Further, a defendant may have constructive possession if he willfully and knowingly shares the right to control the contraband with another. Id.
*652 The subject pill was not in the actual possession of either the driver or passenger in this case. Thus, the state was required to prove that McGraw constructively possessed the illegal drug. The facts show that the pill was found in the middle console of a car that belonged to McGraw. Officer Satre testified that the middle console was located within arms reach of McGraw, thus raising an inference that it was McGraw who had complete control over the drug hidden in his vehicle. Furthermore, the discovery of other drugs in the car and the large sum of cash found on McGraw's person also leads to an inference of his involvement in illegal drug activity. This evidence shows that McGraw had access to two areas where drugs were found, was located in close proximity to the hydrocodone pill and was in the car with a passenger who was carrying drugs.
The jury obviously rejected the testimony which suggested that the pill was mistakenly placed in McGraw's car. Considering the inconsistencies in that defense witness's description of the pills, this rejection is reasonably supported by the record. From the remaining evidence, the jury could have reasonably concluded that McGraw committed an act tending directly toward the accomplishment of his intent, possession of hydrocodone.
In his second assignment of error, McGraw argues that the trial court erred in denying his motion to suppress. The trial court denied McGraw's motion to suppress without an evidentiary hearing for failure to meet the procedural threshold requirements of Article 703(E), that is, he failed to allege facts that would require the granting of relief through a motion to suppress. Upon the court's denial of the motion, defense counsel lodged an objection. On appeal, McGraw argues only the merits of the motion to suppress, as revealed by the evidence of the search adduced at trial. He asserts that Officer Satre had no probable cause to stop and question him for a violation of the open container law and that the subsequent search of the vehicle was illegal.
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 Warrants 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. U.S. Const. Amend. IV.
The Louisiana Constitution contains similar wording, but goes further to protect a citizen's right to privacy in La. Const. Art. 1, § 5:
Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.
The Louisiana Supreme Court has held that the Louisiana constitutional declaration of the right to privacy is not a duplicate of the Fourth Amendment or merely coextensive with it. It is one of the most conspicuous instances in which our citizens have chosen a higher standard of individual liberty than that afforded by the jurisprudence interpreting the federal constitution. State v. Hernandez, 410 So. 2d 1381 (La.1982). In recent years, however, this higher standard noted in Hernandez has not resulted in the suppression of more *653 evidence in Louisiana than is required under a Fourth Amendment analysis, particularly concerning automobile stops, searches and seizures.[2]
A search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Canezaro, 07-668 (La.6/1/07), 957 So. 2d 136.
Generally the decision to stop a vehicle is reasonable when the police have probable cause to believe a traffic violation has occurred. State v. Waters, 00-0356 (La.3/12/01), 780 So. 2d 1053. If a police officer observes a traffic infraction, the subsequent stop for that offense is clearly legal. Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996); State v. Stoutes, 43,181 (La.App.2d Cir.4/2/08), 980 So. 2d 230. The standard is a purely objective one that does not take into account the subjective beliefs or expectations of the detaining officer. This objective standard is indifferent to the relatively minor nature of a traffic violation. State v. Stoutes, supra.
The Fourth Amendment protects "against unreasonable searches and seizures" of (among other things) the person. Virginia v. Moore, ___ U.S. ___, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008). If an officer makes a lawful arrest of an individual, that officer is authorized, without more, to search the arrestee and his wingspan, or lunge space for weapons and evidence. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); State v. Stoutes, supra. When a lawful arrest is made of the occupant of a vehicle, or of a recent occupant, then law enforcement automatically has the right to search the entirety of the passenger compartment, including closed containers found in the passenger compartment, as a contemporaneous incident of the lawful arrest. New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). Belton is not limited to situations where suspects remain in their vehicles when approached by the police. In Thornton v. United States, 541 U.S. 615, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004), police accosted the driver of a vehicle for a violation of tag laws after the driver had parked his car and exited the vehicle. The driver consented to a pat down during which he admitted having illegal drugs on his person. Police arrested the driver, handcuffed him and placed him in the back seat of the patrol car before searching the vehicle and discovering a handgun under the driver's seat. That court concluded that so long as an arrestee is the sort of recent occupant of a vehicle "such as [the driver] was here," officers may search the vehicle incident to the arrest.
Despite previous indications to the contrary (see, State v. Hernandez, supra, at p. 1385), the Louisiana Supreme Court has recently applied Belton in upholding vehicular searches incident to arrest. State v. Canezaro, supra; State v. Huynh, 08-1628 (La.11/10/08), 993 So. 2d 1198.
In Louisiana, some Title 32 traffic offenses require the issuance of citations, some allow arrests. State v. Stoutes, supra. In relevant part, the provisions of La. R.S. 32:300 state that it shall be unlawful for the operator of a motor vehicle, while the motor vehicle is operated on a public highway or right-of-way, to possess *654 an open alcoholic beverage container in the passenger area of a motor vehicle. Open alcoholic beverage container means any bottle, can, or other receptacle that contains any amount of alcoholic beverage and is open or has a broken seal, or its contents have been partially removed. Whoever violates the provisions of La. R.S. 32:300 "shall not be taken into custody, but instead shall be required either to deposit his driver's license with the arresting officer or give his written promise to appear." La. R.S. 32:300(C).
Likewise, the relevant provisions of La. R.S. 32:104 provide that no person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required by La. R.S. 32:101, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. A violation of La. R.S. 32:104, however, is one for which a citation is required. State v. Bellow, 07-824 (La. App. 5th Cir.3/11/08), 982 So. 2d 826. See also, La. R.S. 32:57.
In its recent ruling in Virginia v. Moore, supra, the United States Supreme Court addressed a situation involving the offense of driving under suspension. Under Virginia law, the traffic violation required the issuance of a summons/citation in lieu of the arrest of a subject who committed the offense. A search of the defendant incident to the arrest discovered cocaine. The court found that the warrantless arrest did not violate the Fourth Amendment, because it was based upon probable cause of a crime despite the minor nature of the offense. Likewise, the search incident to that arrest was held to be constitutional. The court concluded that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections. Id.
The officers' descriptions of the timing and manner of the arrests of McGraw and Day are not greatly detailed. Significantly, there were two non-arrestable traffic offenses for which McGraw was charged. The record does not reveal that McGraw was arrested for the improper turn violation or that the hydrocodone was found by the officer's search of the vehicle after Day's felony arrest. Thus, we will presume that McGraw's arrest for the traffic offense(s) occurred first and the subsequent search that led to the discovery of the hydrocodone was unrelated to Day's arrest.
Clearly, at the time that McGraw was placed into the patrol car, the officer had probable cause that the two offenses had occurred. Therefore, with the recent ruling in Virginia v. Moore, supra, the arrest[3] of McGraw was constitutionally permissible under the Fourth Amendment. Further, under the Belton/Thornton analysis for a vehicle search *655 incident to arrest, Officer Satre's search of the passenger compartment was likewise a constitutionally permissible search under the Fourth Amendment. The fact that the arrest was in violation of Louisiana's statute requiring a citation-only traffic offense does not make the arrest and search incident thereto unconstitutional under the Fourth Amendment.
Regarding the Louisiana constitution's search and seizure provision and its invasion of privacy protection, defendant makes no argument concerning a violation under state constitutional law. Nevertheless, despite the violation of the state statutes regarding this arrest and any possible Louisiana constitutional breach that might be urged, this court will not impose any exclusionary rule to remedy such violation without precedent from our state's highest court.
Finally, even were we to conclude that a constitutional violation of McGraw's rights had occurred, the evidence would nonetheless be admissible under the "inevitable discovery" doctrine. Under this doctrine, evidence found as a result of a violation of defendant's constitutional rights would be admissible if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered. Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). The "inevitable discovery" doctrine has been followed by Louisiana courts. State v. Lee, 05-2098 (La.1/16/08), 976 So. 2d 109, cert. denied, ___ U.S. ___, 129 S. Ct. 143, 172 L. Ed. 2d 39 (2008); State v. Nelson, 459 So. 2d 510 (La.1984), cert denied, 471 U.S. 1030, 105 S. Ct. 2050, 85 L. Ed. 2d 322 (1985); State v. Drake, 31,528 (La.App.2d Cir.1/20/99), 733 So. 2d 33, writ denied, 99-1060 (9/24/99), 747 So. 2d 1117; State v. Fontenot, 01-0178 (La.App. 4th Cir.8/8/01), 795 So. 2d 410. In this matter, because officers also developed probable cause to arrest Day as he was removed as an occupant of the car, they were authorized under New York v. Belton, supra, to conduct a search of the entire passenger compartment of the vehicle incident to Day's arrest. In doing so, the police would have inevitably discovered the hydrocodone in the center console. Thus, "there is no nexus sufficient to provide a taint and the evidence is admissible." Nix v. Williams, 467 U.S. at 448, 104 S. Ct. 2501.
In his third assignment of error, McGraw argues that evidence of Day's arrest for possession of cocaine and the marijuana found in the vehicle prejudiced the verdict by showing the defendant's bad acts.
During trial, defense counsel objected to the officer's testimony relating to Day's arrest and the seizure of the marijuana in McGraw's vehicle on the grounds that the evidence constituted other crimes evidence. The state argued that the evidence formed part of the res gestae. The trial court overruled McGraw's objection and allowed introduction of the evidence on the grounds that it formed an integral part of the transaction.
Generally, evidence of other acts of misconduct is not admissible because it creates the risk that the defendant will be convicted of the present offense simply because the unrelated evidence establishes him or her as a "bad person." La. C.E. art. 404(B)(1); State v. Jackson, 625 So. 2d 146, 148 (La.1993). This rule of exclusion stems from the "substantial risk of grave prejudice to the defendant" from the introduction of evidence regarding his unrelated criminal acts. State v. Prieur, 277 So. 2d 126, 128 (La.1973). However, evidence of other crimes may be admissible if the state establishes an independent and relevant reason, e.g., when it relates to *656 conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. art. 404(B)(1); State v. Roberson, 40,809 (La. App.2d Cir.4/19/06), 929 So. 2d 789. Even when the other crimes evidence is offered for a purpose allowed under Article 404, the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defense. The probative value of the extraneous crimes evidence must outweigh its prejudicial effect. La. C.E. art. 403; State v. Jacobs, 99-0991 (La.5/15/01), 803 So. 2d 933, cert. denied, 534 U.S. 1087, 122 S. Ct. 826, 151 L. Ed. 2d 707 (2002); State v. Hatcher, 372 So. 2d 1024, 1033 (La.1979).
A trial court's ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. State v. Scales, 93-2003 (La.5/22/95), 655 So. 2d 1326, cert. denied, 516 U.S. 1050, 116 S. Ct. 716, 133 L. Ed. 2d 670 (1996); State v. Cooks, 36,613 (La. App.2d Cir.12/4/02), 833 So. 2d 1034; State v. Butler, 30,798 (La.App.2d Cir.6/24/98), 714 So. 2d 877, writ denied, 98-2217 (La.1/8/99), 734 So. 2d 1222. Evidence of other crimes, wrongs or acts may be introduced when it relates to res gestae, that is, conduct that forms an integral part of the act or transaction that is the subject of the present proceedings. La. C.E. art. 404(B)(1); State v. Colomb, 98-2813 (La.10/1/99), 747 So. 2d 1074; State v. Coates, 27,287 (La.App.2d Cir.9/27/95), 661 So. 2d 571, writ denied, 95-2613 (La.2/28/96), 668 So. 2d 365. The test to determine "integral act" evidence is not simply whether the state might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive its case of narrative momentum and cohesiveness, with power not only to support conclusions, but to sustain the willingness of jurors to draw the inference, whatever they may be, necessary to reach an honest verdict. State v. Gaddis, 36,661 (La.App.2d Cir.3/14/03), 839 So. 2d 1258, cert. denied, 544 U.S. 926, 125 S. Ct. 1649, 161 L. Ed. 2d 487 (2005).
As discussed above, the central issue in this case is whether McGraw had constructive possession of the hydrocodone pill. Thus, issues of McGraw's knowledge and intent were necessary to the state's proof. Both the arrest of Day for possession of crack cocaine and the discovery of the marijuana in the driver's door occurred simultaneously with the discovery of the hydrocodone. These facts formed an integral part of the act which forms the basis for these proceedings. Moreover, facts relating to the existence of other drugs in the car have probative value and were relevant to issues of McGraw's intent to possess, his exercise of dominion and control and knowledge of the drug. This evidence provided narrative completeness to the state's case and presented the full context of facts which were necessary for the jurors' ultimate determination of McGraw's guilt. From this evidence, the jury was free to infer that Day's possession of cocaine exculpated McGraw as he might have also placed the pill in the center console. Likewise, from this evidence the jury could have inferred McGraw's friends' joint enjoyment of illegal drugs. The trial court recognized the potential prejudicial impact of Day's arrest on the jury and allowed both Officer Satre and Corporal Crouch to explicitly state that McGraw was not arrested for cocaine possession. See State v. Colomb, supra (in which the court held that evidence of marijuana, discovered with facts giving rise to a possession of a firearm by a convicted felon prosecution, was permissible). For these reasons, we find no merit to this argument.
*657 McGraw's final argument concerns the constitutional excessiveness of the imposed sentence. Specifically, McGraw contends that the trial court improperly considered both his prior criminal history without regard to other factors and a pending armed robbery charge when it sentenced the defendant to the maximum statutory sentence of two-and-one half years.
The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So. 2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So. 2d 330; State v. Hardy, 39,233 (La. App.2d Cir.1/26/05), 892 So. 2d 710. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So. 2d 957, cert. denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996). On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.
As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031 (La.2/15/08), 974 So. 2d 665; State v. McKinney, 43,061 (La. App.2d Cir.2/13/08), 976 So. 2d 802; State v. Woods, 41,420 (La.App.2d Cir.11/1/06), 942 So. 2d 658, writs denied, 06-2768, 06-2781 (La.6/22/07), 959 So. 2d 494; State v. Grissom, 29,718 (La.App.2d Cir.8/20/97), 700 So. 2d 541. However, this maximum sentence rule is more difficult to apply in contraband possession cases than in cases involving violent offenses, and past records of drug offenses weigh heavily in the decision to uphold the imposition of even maximum sentences. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So. 2d 392, writ denied, 00-1467 (La.2/2/01), 783 So. 2d 385.
In selecting a proper sentence, a trial judge is not limited to considering only a defendant's prior convictions but may properly review all prior criminal activity. State v. Boyte, 42,763 (La.App.2d Cir.12/19/07), 973 So. 2d 900, writ denied, 08-0175 (La.6/20/08), 983 So. 2d 1272; State v. Russell, 40,526 (La.App.2d Cir.1/27/05), 920 So. 2d 866, writ denied, 06-0478 (La.9/29/06), 937 So. 2d 851; State v. Jackson, 612 So. 2d 993 (La.App. 2d Cir.1993). The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So. 2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Estes, 42,093 (La.App.2d Cir.5/9/07), 956 So. 2d 779, writ denied, 07-1442 (La.4/4/08), 978 So. 2d 324.
The trial court in this case considered McGraw's past criminal history prior to imposing the maximum two and one-half year sentence. Specifically, the court noted that McGraw had two felony convictions in 1991 and 1996 involving cocaine and that after those offenses, he had numerous arrests. The court determined that as an adult, McGraw had a consistent history of committing felonies. The trial court stated that the pending armed robbery charge played no role in its sentencing determination.
We find no constitutional error in the imposed sentence. McGraw has a continued history of drug-related activity. He has obviously failed to benefit from prior *658 probationary treatment and leniency in sentencing. These facts and McGraw's continued disregard for the drug laws of this state justify the maximum sentence which is appropriately tailored to this defendant.
Conclusion
For the foregoing reasons, McGraw's conviction and sentence are affirmed.
AFFIRMED.
DREW, J., concurs with written reasons.
DREW, J., concurring.
The majority's opinion is excellent, and I join with it in all respects, adding these few observations, primarily about the current (and evolving) state of Louisiana's law of vehicular search incident to arrest.
I. Avoiding Temptation
The U.S. Supreme Court has become selective in its application of the exclusionary rule, even in situations where officers have violated guidelines set by the court itself.[1] Now the court has ruled that searches incident to arrest ("SITA") made for violations of offenses allowing only citation under state statutes may produce admissible evidence, under the Fourth Amendment, so long as probable cause existed as to the commission of a criminal offense. Virginia v. Moore, ___ U.S. ___, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008).
If an officer seeks an evidentiary advantage by unlawfully arresting for the violation of a statute mandating the issuance of a citation, that officer is making a serious mistake. A police officer who willfully violates either statutory or jurisprudential guidelines will undoubtedly be subjected to the corrective systems in place today (internal affairs investigations, civil rights lawsuits, etc.), whether or not the evidence is suppressed. Peace officers must follow the law.
II. Legal Requirement for a Traffic Stop
Only reasonable suspicion, not the more difficult burden of probable cause, is required to make any stop, including a traffic stop.[2] Six federal circuits[3] have reaffirmed this precept since the rendering of Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89 (1996), a case with certain language, susceptible to confusion, on this issue, namely, "As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred."
My interpretation of the burdens which must be satisfied to justify traffic stops is as follows:
If an officer observes a traffic violation, then probable cause does, in fact, exist that a crime is occurring. The officer may stop the vehicle and immediately issue the citation. If an arrest is allowed for the observed offense,[4] then SITA would apply as to the driver and possibly to the *659 passenger compartment[5] of the vehicle, together with all containers located within the passenger compartment.[6]
Merely making a brief traffic stop, however, requires only the lesser burden of reasonable suspicion of criminal activity. In this situation, the officer would then promptly have to confirm or deny his suspicion of criminality. If probable cause quickly develops during a stop, then a citation may issue or an arrest can be made, depending upon what crime is violated. Otherwise, the motorist should be allowed to depart.
III. Two Recent Per Curiams Relative to SITA
Almost 40 years ago, the United States Supreme Court provided law enforcement in this country with a clear rule that a contemporaneous incident of a lawful arrest was the allowance that the officers could search the arrestee, including his wing span and lunge space, for weapons or evidence. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).
Four years later, the SITA concept was clarified further, in a case involving a motorist who was arrested. United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973).
Eight years later, the court established a clear rule that peace officers, incident to the arrest of a motorist, were entitled, as a contemporaneous incident of that arrest, to search the entire passenger compartment, including any containers therein, for weapons or evidence. New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981).
The following year, by a 4-3 vote, the Louisiana Supreme Court, in dicta, declined to follow Belton, perceiving that searching a passenger compartment, incident to arrest, was violative of our Louisiana Constitution, in a situation where the arrestee was shackled and locked in the patrol car at the time of the search incident to his arrest. State v. Hernandez, 410 So. 2d 1381 (La.1982). Officers in other states have for decades utilized the evidentiary and protective consequence of vehicular SITA, as contemplated by Belton. Louisiana peace officers, until the last two years, have not been allowed the same protection and evidence-gathering capability, primarily because of Hernandez.
In 2004, the U.S. Supreme Court ruled that the doctrine of search incident to an arrest could apply to the passenger compartment of a vehicle, even in a situation where the arrestee was already out of the vehicle when initially approached by the officer, so long as elapsed time factors (since the subject had been in the car) and distance (distance from the car) factors were minimal. Thornton v. United States, 541 U.S. 615, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004).
Interestingly, at the moment when the officer searched Thornton's passenger compartment incident to arrest, Thornton was shackled and locked in the police car. This is factually similar to the situation of Hernandez at the time Gonzales Corporal Pasqua searched his passenger compartment incident to arrest, over two decades before.[7]
*660 Recently, some scholars have argued that application of the privacy language in the Louisiana Constitution should have always been limited solely to communications, instead of serving as a "launching pad" for judicial policy-making in the '70s and '80s.[8]Hernandez was listed as a prime example of making policy instead of interpreting the law.
In 2007, in a per curiam opinion, the Louisiana Supreme Court cited Belton in approving the search of the passenger compartment of a pickup truck, incident to the arrest of two former occupants of the truck, even though each of the subjects was shackled and locked in the patrol car at the moment of the search. State v. Canezaro, 2007-668 (La.6/1/07), 957 So. 2d 136. The Hernandez case was not discussed.
Recently, in another per curiam opinion that also did not distinguish Hernandez, the Louisiana Supreme Court cited Belton as justification for the contemporaneous search of a passenger compartment incident to the arrest of a former occupant of a vehicle. State v. Huynh, XXXX-XXXX (La.11/10/08), 993 So. 2d 1198.
My conclusion, until corrected, is that Belton, Thornton, Canezaro, and Huynh now control Louisiana vehicular searches incident to arrest. I further conclude that Hernandez is out, at least to the extent that it has heretofore been construed as limiting the application of Belton in this state.
APPLICATION FOR REHEARING
Before BROWN, STEWART, CARAWAY, PEATROSS and DREW, JJ.
Rehearing denied.
NOTES
[1] McGraw subsequently entered a plea of no contest to the other three misdemeanor charges. The imposed sentences were subject to time served and imposed concurrently to the attempted possession of hydrocodone sentence. A habitual offender bill charging McGraw as a fourth felony offender was filed on April 23, 2008, but the disposition of the habitual offender bill is not included in the record.
[2] See further discussion of the Louisiana constitutional provision in State v. Jackson, 00-0015 (La.7/6/00), 764 So. 2d 64.
[3] Even though the officer did not testify that he informed McGraw that he was under arrest, he acknowledged his intention to arrest after discovery of alcohol in the vehicle. La. C.Cr.P. 201 defines arrest as "the taking of one person into custody by another." "It is the circumstances indicating intent to effect an extended restraint on the liberty of the accused, rather than the precise timing of an officer's statements: `You are under arrest,' that are determinative of when an arrest is actually made." State v. Allen, 95-1754 (La.9/5/96), 682 So. 2d 713. Moreover, under Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980), and State v. Sherman, 05-0779 (La.4/4/06), 931 So. 2d 286, where the formal arrest follows quickly on the heels of the challenged search, it is not particularly important that the search precede the arrest rather than vice versa.
[1] Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006), narrowly refused to suppress evidence seized pursuant to a search warrant for illicit drugs, when the police clearly violated the court's unanimous "knock-and-announce" rule established four years before, in United States v. Banks, 540 U.S. 31, 124 S. Ct. 521, 157 L. Ed. 2d 343 (2003).
[2] See State v. Stoutes, 43,181 (La.App. 2 Cir. 4/2/08), 980 So. 2d 230, fn. 14.
[3] See Stoutes, supra, fn. 15.
[4] Violations of some offenses in Title 32 allow the offender to be arrested. La. R.S. 32:57(C)(1), (E), and (F); R.S. 32:402; R.S. 32:412(G); R.S. 32:415; R.S. 32:861.
[5] Depending upon how far the driver is from the car and how long since the driver had been in the car, at the moment of arrest and search incident to the arrest.
[6] New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); Thornton v. United States, 541 U.S. 615, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004); State v. Canezaro, 2007-668 (La.6/1/07), 957 So. 2d 136.
[7] One clear distinction: During the SITA, Thornton was still at the scene. At the same point, Hernandez was being driven to the station for booking.
[8] See John S. Baker Jr. and Jason Dore, The Louisiana Supreme Court: Interpreting the Law or Making Policy?, 13-14 (Washington, D.C.: The Federalist Society and Baton Rouge, La.: Foundation for Self-Government, 2008). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1551493/ | 170 B.R. 582 (1994)
In re Billy R. CATE and wife, Betty A. Cate, Debtors.
Bankruptcy No. 593-50823-7.
United States Bankruptcy Court, N.D. Texas, Lubbock Division.
August 16, 1994.
Bruce Magness, Lubbock, TX, for debtors.
Joseph F. Postnikoff, McWhorter, Cobb & Johnson, L.L.P., Chapter 7 Trustee, Lubbock, TX.
JOHN C. AKARD, Bankruptcy Judge.
MEMORANDUM OF OPINION ON EXEMPTION
This case calls for a determination of the validity of exemptions claimed in a Chapter 7 *583 case. Billy R. Cate and his wife, Betty A. Cate, (Debtors) filed for relief under Chapter 7 of the United States Bankruptcy Code on December 30, 1993. On April 8, 1994, Debtors filed an amended Schedule C Property Claimed as Exempt and claimed their exemptions pursuant to the Texas Property Code. On May 9, 1994, the Trustee filed an objection to their claimed homestead exemption of two tracts of real property and two separate homes located on them across the street from each other at 4003 East Bates and 4004 East Bates, Lubbock, Texas. The court sustains the Trustee's objection.[1]
FACTS
The Debtors purchased the house at 4003 East Bates in 1972, two years after they were married. In 1973, the Debtors purchased the house directly across the street at 4004 East Bates and moved into it. At that time, Mr. Cate's father, mother, and sister moved into the 4003 East Bates house. Mr. Cate's mother was chronically ill, his sister suffered from cerebral palsy, and there is some evidence that his father may also have suffered a disability all at the time they moved into the 4003 East Bates house. The acquisition of the second house and the moves were made in order to allow Mr. Cate to care for his family. His mother has since died and his sister is now in a nursing home, leaving only his father, who is 88 years old, living in the 4003 East Bates house. The Debtors still reside at 4004 East Bates.
Betty Cate, who has experienced problems with diabetes since 1981, broke her arm in 1992 and went into the hospital for treatment. While there, she lapsed into a coma in which she remained for an extended period of time, and developed serious respiratory problems for which she must still be treated. The medical bills incurred are in excess of $300,000, and the Debtors possessed no medical insurance coverage. The Lubbock County Hospital District received a judgment for more than $300,000 against the Debtors, who immediately thereafter filed the Chapter 7 petition.
DISCUSSION
The Debtors elected to claim their exemptions under Texas law as allowed by 11 U.S.C. § 522(b)(2)(A).[2] Since the Debtors have elected the state exemptions, the bankruptcy court must look to state law for an interpretation of homestead exemption rights. In re Barnhart, 47 B.R. 277 (Bankr. N.D.Tex.1985). Therefore, the issue to be decided is whether both houses may be exempted as the Debtors' homestead under the Texas homestead exemption codified at TEX. PROP.CODE ANN. § 41.002 (Vernon Supp. 1994).
The party claiming the homestead exemption has the burden of establishing the homestead character of the property. NCNB Texas Nat'l Bank v. Carpenter, 849 S.W.2d 875 (Tex.App. Fort Worth 1993, no writ). Also, the homestead claimant has the burden of proof as to every fact essential to the existence of the asserted homestead. Bank of San Antonio v. Renaldo, 626 S.W.2d 318 (Tex.Civ.App. Eastland 1981), rev'd on other grounds, 630 S.W.2d 638 (Tex.1982). The Debtors are claiming the homestead exemption and, therefore, they bear the burden of proof in this case.
The Texas homestead exemption distinguishes between an urban and a rural homestead. There is no dispute that the two residences in question are urban in nature. The Texas Property Code defines an urban homestead as follows:
If used for the purposes of an urban home or as a place to exercise a calling or business in the same urban area, the homestead of a family or single, adult person, not otherwise entitled to a homestead, shall consist of not more than one acre of land which may be in one or more lots, together with any improvements thereon. *584 TEX.PROP.CODE ANN. § 41.002(a) (Vernon Supp.1994). The court accepts that the two properties in question are both urban in nature, are located on two separate lots divided by a city street, were purchased at separate times, and taken together do not exceed one acre. Additionally, the court agrees that the Debtors and Mr. Cate's father qualify as a family for purposes of the homestead exemption. Henry S. Miller Co. v. Shoaf, 434 S.W.2d 243 (Tex.Civ.App. Eastland 1968, writ ref'd n.r.e.) (stating that a family relationship may exist between an adult child and a parent who is dependent upon the adult child for support.)
In order to determine whether the two separate houses may constitute the Debtors' urban homestead, the court first looks to Texas case law to determine what is meant by "homestead." "A homestead is the dwelling house constituting the family residence, together with the land on which it is situated and the appurtenances connected therewith." Gann v. Montgomery, 210 S.W.2d 255, 258 (Tex.Civ.App. Fort Worth 1948, writ ref'd n.r.e.) (citation omitted). "The exemption is, in terms, of lots or acres of land; but the object was to secure to the family a home. `House' is necessarily embraced in the word `homestead'." Cullers v. James, 66 Tex. 494, 1 S.W. 314, 315 (1886). "The idea of a homestead carries with it a place of residence, a domicile, and all property used in connection with the residence, such as a place of business, garden, garage, office, or shop, must be located at the place of residence." Rockett v. Williams, 78 S.W.2d 1077, 1078 (Tex.Civ. App. Dallas 1935, writ dism'd). These cases all refer to the residence or house in singular terms, implying that the homestead is meant to be comprised of only one residence.
This interpretation is supported by Texas case law spanning over 100 years. The Supreme Court of Texas stated in 1891 in Achilles v. Willis, 81 Tex. 169, 16 S.W. 746 (1891), that the head of a family is not entitled to two residence homesteads. In Wootton v. Jones, 286 S.W. 680 (Tex.Civ.App. Austin 1926, writ dism'd), the court stated that "a man may have two or more residences at the same time, but he cannot have more than one homestead." Id. at 687. Finally, the court in Calvin v. Neel, 191 S.W. 791, 795 (Tex.Civ.App. Fort Worth 1916, writ ref'd), expressed its opinion saying, "[w]e do not understand it to be the law that a person may claim residential homestead rights in two separate and distinct premises." Nothing found in more current case law indicates any change in this line of reasoning. On the contrary, recent cases support the Fort Worth court's statement. See e.g., First Nat'l Bank Mansfield v. Nelson (In re Nelson), 134 B.R. 838 (Bankr.N.D.Tex.1991) (stating that an individual may have only one residential homestead at any given time.)
Therefore, it is clear that a claimant may have only one homestead at any given time and, apparently, it is not intended to include two separate residences located on different lots. However, it should be noted that the purchase of a lot on which two houses have been constructed, followed by the occupancy of one, may support a finding that both structures are homesteads. Tolman v. Overstreet, 590 S.W.2d 635 (Tex.Civ. App Tyler 1979, no writ).
Counsel for the Debtors argues in the Memorandum of Points and Authorities, that the second residence falls within the definition of improvements which may be exempted under the statute. The Debtors summarize their argument in the proposition that "a `family unit' using whatever improvements are located on the real estate lot or lots so long as they do not exceed one acre qualifies for an urban homestead under Texas law." Thereby counsel concludes that the residence at 4003 East Bates is merely an improvement that is appurtenant to the residence homestead at 4004 East Bates. In light of the compelling facts in this case, this is a very attractive conclusion. However, it is not supported by Texas case law.
The Debtors offer no authority for the proposition that the improvements to an urban homestead may include a second residence located on a separate lot. The court found no authority supporting this view. A fair reading of the Texas homestead exemption allows an exemption for only one residence. This view is supported by Archibald *585 v. Jacobs, 69 Tex. 248, 6 S.W. 177 (1887), which stated that there could not be two places of residence for the family, separate and in no way used together. Id. 6 S.W. at 179. These two residences are separate, and in the opinion of this court, the fact that a family member lives in each of them is not sufficient to show that they are used together.
CONCLUSION
As previously stated, the claimant of the homestead exemption has the burden of establishing the homestead character of the property. The Debtors failed to meet this burden in establishing that the second residence at 4003 East Bates is part of their urban homestead. The courts of Texas have always given a liberal construction to the state's Constitution and statutes to protect homestead rights. "However, the courts cannot protect that which is not a homestead." 210 S.W.2d 255, supra, at 258 (quoting Whiteman v. Burkey, 115 Tex. 400, 282 S.W. 788 (1926)). It has not been proven that the residence at 4003 East Bates is a homestead. Therefore, the court cannot rely upon a liberal construction of state law to uphold the claimed exemption.
The facts of this case are such that, in the interest of equity, the court has leaned toward finding that the property is exempt. The Debtors are to be commended for their efforts over the years in caring for their family members, and certainly do not deserve to lose this property in bankruptcy. However, no authority has been presented or discovered on which to base a finding that the property is exempt as a matter of law. The Fifth Circuit declared that the bankruptcy courts are not "roving commissions to do equity." United States v. Sutton, 786 F.2d 1305, 1308 (5th Cir.1986). Therefore, the objection of the Trustee is upheld and the exemption of the 4003 East Bates property is denied.[3]
NOTES
[1] This court has jurisdiction of this matter under 28 U.S.C. § 1334(a), 28 U.S.C. § 157(a), and Miscellaneous Rule No. 33 of the Northern District of Texas contained in Order of Reference of Bankruptcy Cases and Proceedings Nunc Pro Tunc dated August 3, 1984. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(1) and (b)(2)(B).
[2] The Bankruptcy Code is 11 U.S.C. § 101 et seq.
[3] This Memorandum shall constitute Findings of Fact and Conclusions of Law pursuant to FED. R.BANKR.P. 7052 which is made applicable to Contested Matters by FED.R.BANKR.P. 9014. This Memorandum will be published. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1551502/ | 170 B.R. 83 (1994)
In re ALLEGHENY INTERNATIONAL, INC., Sunbeam Corporation, Sunbeam Holdings, Inc., Almet/Lawnlite, Inc. and Chemetron Corporation, Debtors.
CHEMETRON CORPORATION, Appellant,
v.
Phyllis Jaskey JONES, et al., Appellees.
Civ. A. No. 93-1582. Bankruptcy No. 88-448.
United States District Court, W.D. Pennsylvania.
June 14, 1994.
*84 *85 M. Bruce McCullough, George L. Cass, Buchanan Ingersoll, Pittsburgh, PA, Thomas G. Hermann, Laura K. Hong, Dennis G. Terez, Michael B. Axler, Squire, Sanders & Dempsey, Cleveland, OH, and David R. Sargent, Sunbeam-Oster Co., Inc., Tampa, FL, for appellant Chemetron Corp.
William K. Mitchell (argued), Deborah J. Papushak, Armstrong, Mitchell & Damiani, Cleveland, OH, for appellees Phyllis Jaskey Jones, Pamela Jo Swansinger, Sandra Jaskey Hujarski, Patricia Hujarski, Teresa Hujarski Ross, Janice Jaskey Butvin, Frank Butvin, Robert Butvin, Brian Butvin, Susan Butvin, Walter Anielski, Arlene Vans, Yvonne Vans Bekoscke, Anthony Vans, Gregory Vans, Carol Schultz, Mary Shaffer, Brittany Cull and Stephanie Schaffer.
Randall Solomon, Thomas L. Anastos, Baker & Hostetler, Cleveland, OH, Cynthia Baker, Fried, Frank, Harris, Shriver & Jacobson, New York City, and Dennis J. Lewis, Cohen & Grigsby, P.C., Pittsburgh, PA, represented parties to the original bankruptcy action.
MEMORANDUM AND ORDER
McCUNE, Senior District Judge.
We consider the appeal of appellant Chemetron Corporation of the Bankruptcy Court's Memorandum Opinion and Final Order ("Order") entered August 2, 1993 in the underlying Chapter 11 reorganization proceeding and Adversary Proceeding No. 92-2418. By the Order appellee Phyllis Jaskey Jones and eighteen other appellees were permitted to file late claims against Chemetron. Appellees' late claims arise from their allegations against Chemetron and two other defendants (not parties to this appeal) for personal injuries allegedly caused by exposure to radioactive and toxic contamination at two industrial sites, one in Newburgh Heights and one in Cuyahoga Heights, Ohio.
This appeal is pursuant to Bankruptcy Rule 8001(a). Our jurisdiction is pursuant to 28 U.S.C. § 158(a).
BACKGROUND
PROCEDURAL HISTORY
Allegheny International, Chemetron and other debtors (collectively "Debtors") filed a petition to reorganize under Chapter 11 of the Bankruptcy Code on February 20, 1988. The Bankruptcy Court ordered the claims bar date to be May 31, 1988. As required by that order, notice of the bar date was provided to creditors listed on Debtors' schedules of liabilities and certain holders of securities. Debtors were ordered to publish the same notice in the national editions of the New York Times and Wall Street Journal.[1] Appellees were not listed on the Debtors' schedules and were not personally served with notice of the bar date or the bankruptcy proceedings. On July 12, 1990, the Bankruptcy Court confirmed the Debtors' proposed Plan of Reorganization.
On March 2, 1992, Appellees sued Chemetron and two other companies, McGean-Rohco, Inc. and McGean Chemical Company, Inc., in the Court of Common Pleas in Cleveland, Ohio for injuries they allegedly sustained as the result of exposure to hazardous *86 and radioactive material deposited at the Bert Avenue Site in Newburgh Heights, Ohio by Chemetron. In response to the complaint, Chemetron moved to dismiss the claims as to Chemetron in light of the confirmation of the Plan of Reorganization. Appellees then filed a motion with the Bankruptcy Court seeking permission to file late claims and a separate motion to declare that their claims were not discharged. Chemetron answered the adversary proceeding and counterclaimed, seeking a declaratory judgment against Appellees that their claims against Chemetron were discharged as a result of the reorganization.
On August 2, 1993, the Bankruptcy Court granted Appellees' motion for permission to file late claims against Chemetron and sua sponte permitted appellees to proceed with their litigation against Chemetron in the Ohio lawsuit. The adversary proceeding and Chemetron's counterclaim were dismissed without prejudice. The Bankruptcy Court reserved ruling on the issue whether Appellees' claims are discharged in light of the permission to file the late claims. This appeal followed.
The Bankruptcy Court held that Appellees were known creditors of Chemetron in February 1988 when Chemetron filed for Chapter 11 reorganization. As known creditors, the Bankruptcy Court held that Chemetron was required to serve on them actual notice of the bar date, not notice by publication. Lastly, the Bankruptcy Court concluded that the totality of the circumstances weighed in favor of allowing Appellees to file late claims.
FACTUAL BACKGROUND
Appellees' Amended Complaint states that in 1965 McGean Chemical Company sold to Chemetron its stock in a manufacturing facility on Harvard Avenue located in Cuyahoga Heights, Ohio, and the Bert Avenue Site, located approximately ½ mile from the manufacturing facility. Chemetron owned and operated the Harvard Avenue plant and the Bert Avenue Site from 1965 until 1975 when Chemetron sold both sites to McGean. Subsequently, McGean merged with Rohco, Inc. to become McGean-Rohco, the current owner of the sites at issue. During its period of ownership, Chemetron manufactured an antimony oxide catalyst at the Harvard Avenue facility. The process required the use of depleted uranium. In 1974 Chemetron dismantled its catalyst production equipment. In 1975 Chemetron disposed of radioactive material from the Harvard Avenue facility at its Bert Avenue Site. In 1980 the Nuclear Regulatory Commission informed Chemetron that decontamination of the Bert Avenue Site was required.
Appellees are former residents of Newburgh Heights and Cuyahoga Heights who allegedly visited or lived in the vicinity of the Bert Avenue Site from as early as the 1930s to 1985.[2] Appellees allege that the operation and use of the Harvard Avenue plant and Bert Avenue Site by Chemetron, McGean Chemical Company and McGean-Rohco caused Appellees to be exposed to radioactive and hazardous substances. The exposure allegedly caused a variety of medical problems and increased their risk of future medical problems and cancer. Appellees contend that they first became aware that the alleged exposure to the substances caused their medical problems in either October 1991 or March 1992.
The parties have filed briefs. We heard oral argument on February 25, 1994.
DISCUSSION
We review the Bankruptcy Court's findings of fact under the clearly erroneous standard. Fed.R.Bankr.P. 8013. Conclusions of law are subject to de novo review. Mellon Bank, N.A. v. Metro Communications, Inc., 945 F.2d 635, 642 (3rd Cir.1991), cert. denied, ___ U.S. ___, 112 S. Ct. 1476, 117 L. Ed. 2d 620 (1992). However, where there are mixed questions of law and fact, we undertake "`[de novo] review of the trial court's choice and interpretation of legal precepts *87 and its application of those precepts to historical facts.'" Id. quoting Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir.1981); see also, Kilbarr Corp. v. General Services Administration, (In re Remington Rand Corp.), 836 F.2d 825, 828 (3d Cir.1988). Since the issues here are mixed questions of law and fact, we shall review this appeal de novo.
Under Bankruptcy Rule 3003(c)(3) the Bankruptcy Court is required to set a bar date for filing proofs of claim. The bar date is strictly construed to further the objective of finality in bankruptcy proceedings. Charter Crude Oil Co. v. Petroleos Mexicanos (In re Charter Co.), 125 B.R. 650, 654 (M.D.Fla.1991). Confirmation of the debtor's Plan of Reorganization discharges the debtor from claims which arose prior to the confirmation date. Id.; 11 U.S.C. § 1141.
Due process requires that actual written notice of a debtor's bankruptcy filing and bar date be provided to known creditors. New York v. New York, N.H. & H.R. Co., 344 U.S. 293, 296, 73 S. Ct. 299, 301, 97 L. Ed. 333 (1953). Where the names, addresses and interests of potential parties are unknown, notification by publication satisfies the requirements of due process. Id. A "known" creditor is one whose identification as such is either known or "reasonably ascertainable by the debtor." Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 490, 108 S. Ct. 1340, 1347-48, 99 L. Ed. 2d 565 (1988). An "unknown" creditor is one whose identification is not "reasonably ascertainable" and whose claim is merely "conceivable, conjectural or speculative." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 317, 70 S. Ct. 652, 658-59, 94 L. Ed. 865 (1950). The principal argument raised by Chemetron in this appeal is that the standard applied by the Bankruptcy Court that Appellees' claims were reasonably foreseeable making Appellees known creditors conflicts with governing bankruptcy law.
The standard adopted by the Bankruptcy Court was: "if at the time of filing it is reasonably foreseeable to a debtor who is or should be aware of the potential consequences of its actions, that a party that is foreseeable will most likely file a claim against the debtor, that party is a `known' creditor of the debtor." Order at 5-6. The Bankruptcy Court also held that a creditor can be "known" even though the debtor does not know the creditor's name and address. Id. at 6. The Bankruptcy Court stated that the aforementioned standard was suggested by the Bankruptcy Court for the Southern District of New York in In re Brooks Fashion Stores, Inc., 124 B.R. 436 (Bankr. S.D.N.Y.1991).
In Brooks, the debtor had no knowledge of the claim of the Michigan Employment Security Commission ("MESC"). Notice of the bar date for filing proofs of claim was published in two national newspapers and a trade paper. A proposed plan of reorganization was confirmed with an order containing a permanent injunction against claims which arose prior to the order's entry. MESC argued unsuccessfully that it was not barred by the order confirming the plan because it did not receive written notice of the filing of the petition. The court stated that "[w]here a debtor has no knowledge of a claim and in good faith files its petition with as thorough a schedule as possible, the debtor has done all that is required under the Code." Id. at 444. The court noted that had there been a "history of MESC redetermining [the debtor's] taxes, whereby [the debtor] should have reasonably foreseen the assessment, the outcome here might very well be different." Id. at 444. It is from this language that the Bankruptcy Court derived a "reasonable affirmative duty on a debtor company to keep abreast of any obvious and potentially detrimental consequences its actions may have." Order at 5.
We respectfully disagree with the Bankruptcy Court's interpretation of Brooks. The dicta in Brooks indicated that had MESC redetermined the debtor's taxes in prior years, it would be reasonable for the debtor to foresee that MESC might again exercise its right. Here, the Bankruptcy Court eliminated the past dealings of a creditor with a debtor from its reasonably foreseeable test. The decisions cited by the court in Brooks also demonstrate that past dealings between the creditor and debtor are essential in determining whether a creditor should have *88 been "known". See In re Flanigan's Enterprises, Inc., 77 B.R. 963 (Bankr.S.D.Fla.1987) (Creditor did not knowingly fail to list insurer as creditor where insurance creditor waited almost three years to notify the debtor of amounts due under a terminated insurance contract.); Charter Crude Oil Co. v. Petroleos Mexicanos (In re Charter Co.), 125 B.R. 650, 654 (M.D.Fla.1991) (Three years prior to filing for bankruptcy debtor allegedly breached its contract with creditor by emitting a reduced payment to creditor. That debtor knew there was possibility of a claim by creditor did not make the creditor "known.").
Elsewhere in the Brooks opinion the court reemphasized the importance of an historical relationship between the debtor and creditor as a condition precedent for a creditor to be one of debtor's "known" creditors. In addressing MESC's argument that the discharge provision of the Code, 11 U.S.C. § 1141, is unconstitutional, the court concluded that § 1141(d)(1)(A) is not unconstitutional per se, but that its application in certain circumstances could be unconstitutional. The facts in the cases cited indicated "that the alleged creditor was `known' or clearly should have been known under the circumstances." Id. In all of the cases cited, there were past dealings between the creditors and debtors. Moreover, the circumstances in the cases cited by the court strongly suggest that a search of the debtors' records would have revealed the creditors' potential claims.[3]
To comply with the requirements of due process, a debtor is not obligated to conduct an "impracticable and extended" search for all potential creditors. Mullane, 339 U.S. at 317-18, 70 S. Ct. at 658-59. The debtor does not have a "duty to search out each conceivable or possible creditor and urge that person or entity to make a claim against it." Charter Crude Oil Co., supra, 125 B.R. at 655. Nor is the debtor "required to give actual notice of the bar date to a creditor when the debtor could reasonably have believed that the creditor had abandoned its claims against debtor." Id. Even where a debtor knows there is a possibility of a claim by a creditor, if the creditor's claim is merely conceivable, conjectural or speculative, the debtor is not required to give actual notice to the debtor. Id. at 656. However, "if a debtor knows or should know of its potential liability to a specific creditor, that creditor is a known creditor entitled to actual notice." In re Thomson McKinnon Sec., Inc., 130 B.R. 717, 720 (Bankr.S.D.N.Y.1991).
The Bankruptcy Court found that Appellees were known creditors in February 1988 because their claims were foreseeable at the time Chemetron filed for bankruptcy. However, as stated above, absent some course of dealing or some communication between a debtor and potential claimant indicating the viability of a claim, a creditor is not reasonably foreseeable. Appellees did not produce any evidence which suggests a course of dealing between Chemetron and Appellees or a similarly situated resident during the relevant time period. There is nothing in the record which contradicts the claim that Chemetron and Allegheny International were unaware of Appellees' claims until Appellees filed their Ohio lawsuit, more than 4 years after Chemetron filed for reorganization. It is uncontroverted that between 1980, when the NRC first informed Chemetron of unpermitted disposition of radioactive materials at the Bert Avenue Site, and February 1988, no one filed a claim or expressed an intention to file a claim against Chemetron.
Even if we were to apply the foreseeability test proposed by the Bankruptcy Court, the record does not support the claim that Appellees were foreseeable claimants in 1988. In 1980 the news of the contamination at the Bert Avenue Site was publicized in the local newspapers and on television. At meetings *89 concerned residents were told by NRC experts that the radiation was serious enough to require cleaning up eventually, but did not pose a safety or health risk. In 1981 the EPA reported that no ground water contamination had been found at the Site. In 1983 the EPA reiterated that the Bert Avenue Site presented no serious radiation hazard to the surrounding neighborhood. If Chemetron gave any thought to the subject, it was reasonable to assume that claims would not be filed because of the assurances of these agencies that the Bert Avenue Site posed no health risk to the neighborhood. There is no evidence that Chemetron was aware of any danger the Site presented to residents. In fact the danger did not exist according to the agencies involved. Nor is there anything in the record to support Appellees' contention that Chemetron knew that children played at the Site prior to 1980 when the Bert Avenue Site was fenced and posted with warning signs. In 1975, the Site belonged to McGean-Rohco. Thus, there was no reason for Chemetron to assume in 1988 that there would be claims from residents for ailments caused by exposure to the contamination from the Sites. At most, any future claim was speculative. We find that Appellees were not foreseeable claimants and, accordingly, were unknown creditors.
The Bankruptcy Court found Appellees were entitled to actual notice because, by application of its reasonable foreseeability test, they were "known" creditors. Known creditors are required to be given actual notice of the claims bar date. New York, N.H. & H.R. Co., supra, 344 U.S. 293, 73 S. Ct. 299. However, for unknown creditors such as Appellees whose claims are speculative and not foreseeable, it is well established that constructive notice of the bar date by publication satisfies due process. Id., at 296, 73 S. Ct. at 301; In re Thomson McKinnon Securities Inc., 130 B.R. at 720; Charter International Oil Co. v. Ziegler (In re Charter), 113 B.R. 725, 727-28 (M.D.Fla.1990). Here, publication of notice in the national editions of the Wall Street Journal and New York Times as well as in local newspapers where Debtors had ongoing business at the time of filing was sufficient under the circumstances to apprise unknown parties of the pendency of this action. New York, N.H. & H.R. Co., 344 U.S. at 296, 73 S. Ct. at 301; In re Brooks Fashion Stores, Inc., 124 B.R. at 445.
Except upon a showing of excusable neglect, a bankruptcy court may not accept a late filing of a creditor's claim. In re Waterman Steamship Corp., 59 B.R. 724, 727 (Bankr.S.D.N.Y.1986). Although it is questionable whether excusable neglect remains a viable defense for filing a late proof of claim when the claimant is entitled to only publication notice, we shall err on the side of caution and apply the standard.[4] The determination of whether neglect is excusable
"is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include . . . the danger of prejudice to the debtor, the length of the delay and its impact on the judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith."
Pioneer Investment Serv. Co. v. Brunswick Assocs. Ltd. Partnership, ___ U.S. ___, ___, 113 S. Ct. 1489, 1498, 123 L. Ed. 2d 74 (1993).
In the case at bar the Bankruptcy Court found that although Appellees, "while not acting very promptly or diligently, were not so sluggish as to outweigh the fact that Chemetron did not provide notice to alert the [Appellees] of the bankruptcy proceedings and the claims Bar Date." Order at 11. We disagree and find that the notice was adequate under the circumstances. We agree with the Bankruptcy Court that Appellees did not act promptly or diligently. Their motion to file a late claim occurred more than four years after the bar date, two years after the Plan of Reorganization had been confirmed *90 and twelve years after media and neighborhood attention first focused on the hazardous substances at the Bert Avenue Site. That Appellees were allegedly unaware of their claims does not constitute excusable neglect. In re Best Products Co., Inc., 140 B.R. 353, 359 (Bankr.S.D.N.Y.1992); In re Penn Central Transportation Co., 42 B.R. 657, 675 (E.D.Pa.1984), aff'd, 771 F.2d 762 (3d Cir.1985). To permit Appellees to file a late claim would prejudice Chemetron by denying a "fresh start" to which it is entitled. In re Trump Taj Mahal Associates, 156 B.R. 928 (Bankr.D.N.J.1993), aff'd, sub nom., Trump Taj Mahal Associates v. O'Hara (In re Trump Taj Mahal Associates), No. 93-3571, 1993 WL 534494, 1993 U.S. Dist. LEXIS 17827 (D.N.J. December 13, 1993). We conclude that the totality of the circumstances weighs heavily against late filing of Appellees' claims.
Based on the foregoing, the record and the relevant law, we conclude that notice by publication was sufficient, that the claims were dischargeable and were discharged, and that the Appellees have failed to demonstrate excusable neglect. Accordingly, the Bankruptcy Court's Order entered August 2, 1993 will be reversed.
NOTES
[1] The Debtors voluntarily published notice in seven other newspapers in areas the Debtors had ongoing business at the time of filing. According to Chemetron, notice was not published in any Cleveland area newspaper because Chemetron sold the manufacturing facility at Harvard Avenue and the Bert Avenue Site in 1975 and was not engaged in manufacturing activities in that area at the time it filed for Chapter 11 protection.
[2] Appellees allegedly frequently visited or lived in two homes located in Newburgh Heights. According to the Amended Complaint, the residence located at 3969 E. 29th Street was sold in 1981 with one Appellee continuing to reside in the house as a tenant until 1985. Appellees associated with that home allegedly visited either weekly or several times a week until 1985. The other house, located at 1989 East 29th Street, was sold in 1965.
[3] The cases cited in Brooks regarding the constitutionality of § 1141 shared in common specific prepetition relationships between the debtor and creditor which strongly suggested that the debtor had knowledge of the creditor's potential claim against the debtor prior to filing the petition. See, Broomall Industries, Inc. v. Data Design Logic Systems, Inc., 786 F.2d 401 (Fed.Cir.1986) (Fact issue whether debtor on notice of creditor's patent infringement claim); Reliable Electric Co. v. Olson Constr. Co., 726 F.2d 620 (10th Cir. 1984) (Debtor allegedly breached subcontract pre-petition); In re Intaco Puerto Rico, Inc., 494 F.2d 94 (1st Cir.1974) (Pre-petition contractual relationship).
[4] See Trump Taj Mahal Associates v. O'Hara (In re Trump Taj Mahal Associates), No. 93-3571, 1993 WL 534494 at *5-6 n. 7, 1993 U.S. Dist. LEXIS 17827 at *18 n. 7 (D.N.J. December 13, 1993); In re Best Products Co., Inc., 140 B.R. 353, 359 (Bankr.S.D.N.Y.1992); In re Waterman Steamship, 59 B.R. at 728. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1979099/ | 211 B.R. 325 (1997)
In re Albert Curtis HUTCHINS, Jr.
Albert Curtis HUTCHINS, Jr., Plaintiff,
v.
FORDYCE BANK AND TRUST COMPANY, FBT Bancshares, Inc., Roy McClain and Does 1 through 10, Defendants.
Bankruptcy No. 96-50949 S, Adversary No. 97-05025.
United States Bankruptcy Court, E.D. Arkansas, Pine Bluff Division.
July 11, 1997.
*326 David D. Coop, Little Rock, AR, Chapter 13 Trustee.
Stephen L. Gershner, Little Rock, AR, for debtor.
Janet Pulliam, Pamela Dixon, Little Rock, AR, for defendants.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
MARY DAVIES SCOTT, Bankruptcy Judge.
THIS CAUSE is before the Court upon cross-motions for summary judgment on Count I of the complaint which alleges a cause of action for breach of the automatic stay in bankruptcy. The debtor filed his Chapter 13 petition in bankruptcy on September 30, 1996. In addition, on July 2, 1997, the defendants filed a request to amend their motion for partial summary judgment.
Approximately one week after the filing of the case, Fordyce Bank and Trust Company ("the bank") authorized an attorney to investigate and evaluate debtor's work performance. Within one month of the filing of the bankruptcy case, the bank and FBT Bancshares, Inc. ("FBT") terminated debtor's employment contracts. Accordingly, the debtor initiated this separate lawsuit in the United States District Court alleging causes of action for violation of the automatic stay, 11 U.S.C. § 362, and for discriminating against the debtor for his bankruptcy filing, 11 U.S.C. § 525.[1] The district court, upon review of the file, transferred the matter to this Court.
The Summary Judgment Standard
Rule 56, Federal Rules of Civil Procedure, provides that summary judgment shall be granted where the pleadings, depositions, answers to interrogatories, admissions or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986); Burnette v. Dow Chemical Company, 849 F.2d 1269, 1273 (10th Cir.1988). Summary judgment is *327 appropriate when a court can conclude that no reasonable juror could find for the non-moving party on the basis of the evidence presented in the motion and response. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2511-12, 91 L. Ed. 2d 202 (1986). As the Supreme Court has made clear, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex, 477 U.S. at 327, 106 S. Ct. at 2555.
After the movant has made a properly supported summary judgment motion, "the no-movant [has] the burden of setting forth specific facts showing the existence of a genuine issue of fact for trial." Anderson, 477 U.S. at 250, 106 S. Ct. at 2511. The nonmovant may not rely on the allegations or denials in its pleadings to establish a genuine issue of fact, but must come forward with an affirmative showing of evidence. Anderson, 477 U.S. at 250, 106 S. Ct. at 2511. However, the fact that both sides move for summary judgment does not alone establish that the case is proper for summary judgment. Young v. Southwestern Bell Telephone Co., 309 F. Supp. 475, 476 (E.D.Ark.1969)(Henley, C.J.).
The Debtor's Motion for Summary Judgment
The debtor plaintiff asserts that his employment contracts with the defendants FBT and the bank are property of the estate and executory contracts under sections 365 and 1322 of the Bankruptcy Code, and that the termination of these contracts constituted wilful violations of the automatic stay such that he is entitled to reinstatement and damages. The defendants counter that section 362 is not applicable to employment relationships. Rather, they assert, any claim for damages or other relief, in this context, should proceed solely within the parameters of section 525 regarding discrimination.
An executory contract is one in which performance remains due on both sides. In re Hooker Invests., Inc., 145 B.R. 138, 144 (Bankr.S.D.N.Y.1992). An employment contract is an example of an executory contract, In re Jolly, 574 F.2d 349, 351 (6th Cir.1978), cert. denied, 439 U.S. 929, 99 S. Ct. 316, 58 L. Ed. 2d 322 (1978). Indeed, even an employment contract which terminated pre-petition, but which contained a covenant not to compete, has been held to be an executory contract because the non-compete clause created a continuing obligation on the part of the debtor. In re Constant Care Community Health Center, Inc., 99 B.R. 697 (Bankr. D.Md.1989).
Upon the filing of a bankruptcy case, contracts held by the debtor, including employment contracts, become property of the estate, 11 U.S.C. §§ 541(a) 1306; Collier on Bankruptcy, ¶ 365.06[1][b] (Matthew Bender 15th rev. ed.1997)("It seems clear that such contracts become property of the estate under section 541 of the Code."). Earnings derived from those contracts and causes of action accruing relating to those contracts, are property of the estate. As such, the plaintiff is entitled to plead causes of action which may exist for breach of the agreements or violation of the law relating to those agreements, including section 525(a).[2] In the instant case, the debtor held contracts which granted him certain employment rights and provided that he could be terminated from employment only for cause. Cause, under both of the contracts at issue, is defined as "unacceptable work performance, being convicted of a felony, or engaging in any job related activity which has a reasonable possibility of being determined to be illegal behavior." Inasmuch as the contracts were property of the estate, the creditor *328 was required to seek relief from stay to terminate the debtor's rights in those contracts.[3]Computer Communications, Inc. v.Codex Corporation, 824 F.2d 725 (9th Cir. 1987)(There is no executory contract exception in 362(b)); In re Cardinal Industs., Inc., 116 B.R. 964, 982 (Bankr.S.D.Ohio 1990).[4]
While the termination of the debtor's contracts may indeed be violations of the stay, the Court does not believe that the wilfulness of the bank and FBT's violations may be determined as a matter of law on this record. Although "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole," Celotex, 477 U.S. at 327, 106 S. Ct. at 2555, questions involving state of mind, including determinations of wilfulness, "are generally factual issues inappropriate for resolution by summary judgment." Braxton-Secret v. A.H. Robins Co., 769 F.2d 528, 531 (9th Cir.1985). On this basis alone, the plaintiff's motion for summary judgment should be denied.
The debtor also argues that inasmuch as an act in violation of the automatic stay is "void" that this Court must order the debtor's reinstatement. While it is true that violations of the stay are invalid. In re Reichenbach (Reichenbach v. Kizer), 174 B.R. 997 (Bankr.E.D.Ark.1994), appeal dismissed, No. 95cv48 (E.D.Ark. May 22, 1996), it does not necessarily follow that the Bank is compelled to reinstate the debtor in his former position at the bank and at FBT. For example, if the debtor's termination was for cause, rather than because of the filing of the bankruptcy, as alleged, reinstatement may not be an appropriate or permissible remedy. In re Terry, 7 B.R. 880 (Bankr.E.D.Va.1980). In light of the unique nature of this action, combined with the causes pending in the complaint, the Court believes that the better course is for the matter to proceed to trial whereupon, should the plaintiff be successful, the Court may consider whether reinstatement is a proper or appropriate remedy.
The Defendants' Motion for Summary Judgment
The defendants move for summary judgment on the basis that section 362 is not applicable to employment relationships. Rather, they argue, any claim for damages or other relief must, in this context, proceed within the parameters of section 525 regarding discrimination. Section 541(a) of the Bankruptcy Code provides for inclusion of all property and rights to property in the estate. A debtor's interest in an employment contract, as discussed above, is property of the estate. Most Chapter 13 debtors, however, have no written contract and hold only those employment rights afforded them by law. In Arkansas, these rights are few, and individuals may be terminated at the will of the employer. St. Edward Mercy Medical Center v. Ellison, 58 Ark.App. 100, 946 S.W.2d 726, 728 (1997). Accordingly, debtors may be terminated from their employment positions during the pendency of a Chapter 13 case without the necessity of the employer seeking relief from stay.[5] In the instant *329 case, however, the debtor holds interests in particular employment contracts which afford him certain rights, including, as discussed above, the right to be terminated only for cause.
Section 362 of the Bankruptcy Code provides that an individual injured by any willful violation of a stay "shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may recover punitive damages." 11 U.S.C. § 362(h). This section clearly provides for a cause of action by an individual harmed by a violation of the stay. See Pettitt v. Baker, 876 F.2d 456, 457-58 (5th Cir.1989)("To hold that 11 U.S.C. § 362(h) does not create a private right of action would require us to ignore its plain and express language. As we read that language, we cannot but conclude that congress established a remedy for an individual injured by a willful violation of a section 362(a) stay."); cf. Vahlsing v. Commercial Union Insurance Co., 928 F.2d 486, 489 n. 1 (1st Cir.1991). Neither the Code nor the Federal Rules of Bankruptcy Procedure require that a party proceed under this subsection by filing a motion for contempt. Rule 7008 governing pleadings expressly permits alternate causes of action. Indeed, interests of judicial economy as well as the federal rules compel the conclusion that such causes of action be pleaded in the same complaint and tried together. It is well settled, despite the unsupported assertions of the defendants, that a debtor has the right to plead causes of action for violations of the automatic stay, and recover the appropriate damages. While it is doubtful that, under the terms of that statute, the plaintiff may obtain reinstatement of his employment position under section 362, that question need not be resolved at this time, but may await the conclusion of trial on all causes of action pending before the court.[6]
Inasmuch as there are material issues of fact, including whether a wilful violation of the automatic stay occurred upon the plaintiff's termination of employment, the plaintiff's motion for summary judgment must be denied. Inasmuch as a cause of action exists for violation of the automatic stay, the defendants' motion for summary judgment must also be denied. The matter will proceed to trial.
ORDERED as follows:
1. The Plaintiff's Motion for Partial Summary Judgment, filed on January 27, 1997, is DENIED.
2. The Defendants' Motion for Partial Summary Judgment, filed on March 17, 1997, is DENIED.
3. The Defendants' "Motion to Amend Defendants' Motion for Partial Summary Judgment" filed on July 2, 1997, is DENIED as moot.[7]
IT IS SO ORDERED.
NOTES
[1] The complaint also alleges several state law causes of action.
[2] Similarly, section 365(e) would preclude both the bank and FBT from terminating the debtor's contracts, and may permit assumption of the contracts. See generally In re Cardinal Industs., Inc., 116 B.R. 964, 979 (Bankr.S.D.Ohio 1990)("Congress did not intend § 365(c)(1) to preclude assumption of an otherwise nonassignable personal service contract if the performance to be given or received `will be the same as if no petition had been filed.' Rather . . . § 365(c)(1) provides that a debtor in possession can assume a personal service contract that is nonassignable under state law as long as its performance is going to be the same as if no petition had been filed.").
[3] This is an unusual situation. In many instances Chapter 13 debtors are terminated from their employment during the course of their bankruptcy case. No violation of the stay occurs in those instances because, absent a contract, the debtors have no rights in their employment because, in Arkansas, employment is at the will of the employer. Young v. Southwestern Bell Telephone Co., 424 F.2d 256 (8th Cir.1970); St. Edward Mercy Medical Center v. Ellison, 58 Ark.App. 100, 946 S.W.2d 726, 728 (1997)("Under the employment-at-will doctrine, an at-will employee may be discharged for good cause, no cause, or even a morally wrong cause.").
[4] It is not necessary, at this juncture, to determine whether the contracts are subject to assumption, rejection or assignment. Cf. Computer Communications, 824 F.2d 725, 730 ("Accordingly, we affirm the bankruptcy and district courts on the ground that Codex violated the automatic stay by unilaterally terminating the contract and do not reach the question of whether this contract is nonassignable under Massachusetts law.").
[5] Of course, an employer is not permitted to terminate a debtor solely due to the filing of a petition in bankruptcy, 11 U.S.C. § 525, or otherwise violate the "well-established public policy of the state." St. Edward Mercy Medical Center v. Ellison, 58 Ark.App. 100, 946 S.W.2d 726, 728 (1997).
[6] The defendants rely heavily upon In re Hicks, 65 B.R. 980 (Bankr.W.D.Ark.1986) and In re Hopkins, 81 B.R. 491 (Bankr.W.D.Ark.1987) for the proposition that the plaintiff may rely solely upon the remedy afforded by section 525. That reliance is misplaced. Indeed, section 362 is not substantively discussed in either of those opinions. While the Court does, in one instance, refer to a motion for contempt, the reference is to contempt for violation of section 525, not section 362.
[7] In any event, if the defendants wish to obtain a retroactive relief from the stay, it does not appear that amending the motion for summary judgment would accomplish this purpose. Should the defendants wish to retroactively annul the automatic stay, they should so plead, pursuant to the pretrial orders of this court. The standards for a retroactive annulment of the stay have been established by In re Pulley, 196 B.R. 502 (Bankr.E.D.Ark.1996); In re Scott, 182 B.R. 31 (Bankr.W.D.Ark.1995); In re Reichenbach, 174 B.R. 997 (Bankr.E.D.Ark.1994), appeal dismissed, No. 95cv48 (E.D.Ark. May 22.1996). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601699/ | 869 So.2d 664 (2004)
In re ESTATE OF Norman O. SAUEY, Sr., Deceased.
Donald Sauey and Norman O. Sauey, Jr., as Personal Representatives of the Estate of Norman O. Sauey, Sr., Petitioners,
v.
Beverly Sauey, Respondent.
No. 4D03-4369.
District Court of Appeal of Florida, Fourth District.
March 31, 2004.
*665 Michael L. Trop of Adorno & Yoss, P.A., Fort Lauderdale, for petitioners.
Thomas K. Topor of The Kelley Law Firm, Chartered, Fort Lauderdale, and John Beranek of Ausley & McMullen, Tallahassee, for respondent.
GROSS, J.
This petition for writ of certiorari arises from probate litigation. Petitioners, Donald Sauey and Norman O. Sauey, Jr., are the personal representatives of the Estate of Norman O. Sauey, Sr. Respondent, Beverly Sauey, is the surviving spouse. An antenuptial agreement provided that Beverly waived her spousal rights in her husband's estate upon the occurrence of certain conditions, including the funding of a marital trust for Beverly's benefit.
In the circuit court, Beverly obtained an extension of time for making an elective share. She contended that she did not have enough information about the assets of the estate to make an informed decision on whether to exercise her statutory right to the elective share. Also, Beverly petitioned for the removal of Donald and Norman, Jr. as co-personal representatives, claiming that they had financial interests that conflicted with their obligations as personal representatives.
Beverly sought discovery of financial information from the personal representatives in requests for production and for admission. The personal representatives objected to the discovery. The trial court overruled the objections in an order dated October 14, 2003.
Considering the two issues being litigated, the discovery sought was proper. "[W]here materials sought by a party `would appear to be relevant to the subject matter of the pending action,' the information is fully discoverable." Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So.2d 189, 194 (Fla.2003) (quoting Epstein v. Epstein, 519 So.2d 1042, 1043 (Fla. 3d DCA 1988)). The order compelling production of relevant financial information cannot be the object of a writ of certiorari because there is no irreparable harm. See Eberhardt v. Eberhardt, 666 So.2d 1024, 1025 (Fla. 4th DCA 1996); Gaché v. First Union Nat'l Bank of Fla., 625 So.2d 86, 87 (Fla. 4th DCA 1993).
Petitioners rely upon Picerne Development Corp. of Florida v. Tasca & Rotelli, 635 So.2d 149 (Fla. 4th DCA 1994), to argue that Beverly's discovery was premature, in that it was "requested prior to the trial court entering an order establishing entitlement to the elective share." Picerne turns on the application of the rule that applies to discovery in an action for accounting. See Fla. Gaming Corp. of Del. v. Am. Jai-Alai, Inc., 673 So.2d 523, 524 (Fla. 4th DCA 1996). That rule should not be extended to this setting, where the discovery is relevant to the decision of whether or not to even seek an elective share. In accounting cases, there can often be a dispute as to the existence of the fiduciary relationship, such as a trust or partnership, that gives rise to the right to an accounting. Here, there is no dispute as to Beverly's status as a surviving spouse, only as to her entitlement to the elective share in light of the antenuptial agreement.
The petition for writ of certiorari is denied.
FARMER, C.J., and POLEN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601705/ | 190 Mich. App. 598 (1991)
476 N.W.2d 762
PEOPLE
v.
FISHER
Docket No. 119148.
Michigan Court of Appeals.
Decided August 6, 1991, at 9:30 A.M.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, G. Michael Hocking, Prosecuting Attorney, and William M. Worden, Assistant Prosecuting Attorney, for the people.
Donald L. Correll, for the defendant on appeal.
Before: SHEPHERD, P.J., and WAHLS and R.B. BURNS,[*] JJ.
*600 AFTER SECOND REMAND
PER CURIAM.
This case is before this Court for a third time. On January 30, 1986, following a jury trial in the Eaton Circuit Court, defendant was convicted of second-degree murder, MCL 750.317; MSA 28.549. Defendant was sentenced on June 23, 1988, to a term of forty to sixty years in prison. In People v Fisher, 166 Mich App 699; 420 NW2d 858 (1988), defendant appealed his sentence of forty to sixty years, which was far beyond the recommended minimum sentencing guideline range of seven to sixteen years. We remanded the case for resentencing, instructing the sentencing court to specifically explain on the record the reason for this considerable departure. Id., p 715. On remand, the sentencing court once again sentenced defendant to a term of forty to sixty years in prison. In imposing defendant's sentence, the sentencing court stated that when individuals reach the age of sixty they seldom commit violent acts. Therefore, by sentencing defendant, then age twenty-seven, to a minimum term of forty years, he would be age sixty-seven upon his release. Thus, the court concluded that the imposed sentence would give society "some degree of assurance that the defendant would not do a like act under like circumstances." See People v Fisher (After Remand), 176 Mich App 316, 318; 439 NW2d 343 (1989).
Subsequently, we granted defendant's motion for peremptory reversal. Upon review, we found that the sentencing court's rationale for the imposed sentence was "totally inappropriate, and derogat[ed] the bases for sentence reform which underlie the promulgation of the sentencing guidelines." Id. Thus, we remanded defendant's case for resentencing before a different circuit court judge. Id.
On May 26, 1989, defendant was sentenced a *601 third time to twenty-five to fifty years in prison. The defendant has again appealed, and we once again set aside defendant's sentence and remand this case for resentencing before yet another circuit judge.
In this appeal, defendant first argues that the sentencing court erred in failing to delete from the presentence investigation report statements made by defendant's ex-wife. We agree.
Defendant's murder conviction arose from the stabbing death of William Tappert, an acquaintance of defendant's then estranged wife, Mary Fisher, which occurred at the residence defendant and his wife once shared. The challenged statements made by defendant's estranged wife, as reported in the presentence report are as follows:
(1) [Defendant]: "Is your fucking boyfriend here? Tell him to come in here so I can stick him a couple of times."
(2) She started to cry and asked [defendant], "Did you stab him?", to which he replied, "Fuck yes I stuck him."
(3) Mary followed [defendant] out of the house and [defendant] told her to tell the police that Tappert had fallen into the knife. [Emphasis added.]
We note initially that defendant concedes that the second statement was not a privileged communication because of the presence of a third party (Ms. Fisher's son) when the communication was made. Thus, we will only consider the admissibility of the remaining two statements.
When defendant was originally sentenced in 1988, the sentencing judge granted defendant's motion to strike Mary Fisher's comments from the presentence report, pursuant to the spousal privilege doctrine. However, when this matter came *602 before a different judge on the second remand, Mary Fisher's statements were still in the presentence report and again the statements became the subject of a motion to strike, this time with a different result.
Defendant and Mary Fisher were divorced during the period between the first and third sentencing proceedings. During the third sentencing hearing, in response to defendant's motion to strike Ms. Fisher's second and third statements, the court concluded that the spousal privilege terminated at the divorce and that, therefore, the statements were not barred by the spousal privilege doctrine. Defendant further argued that the statements were inadmissible as hearsay; however, the court admitted the statements pursuant to MRE 1101(b)(1), (3).
The spousal privilege doctrine is codified in this jurisdiction, and this Court has held:
MCL 600.2162; MSA 27A.2162 contains two distinct privileges. The first privilege, the spousal privilege, bars one spouse from testifying for or against the other spouse without the other spouse's consent where the witness and the spouse are married at the time of trial. The second privilege, the confidential communication privilege, bars one spouse from testifying as to any communications made by one to the other during the marriage without the consent of the other spouse. The communication privilege applies whether the testimony is sought during the marriage or afterwards, as long as the communication occurred during the course of the marriage. [People v Zak, 184 Mich App 1, 17; 457 NW2d 59 (1990). Citations omitted. Emphasis added.]
Thus, in Michigan, we distinguish two types of marital privileges: a spousal privilege, which precludes a spouse from testifying against the other *603 spouse during the marriage and does not survive the dissolution of the marital relationship, and a confidential communications privilege, which is absolute and precludes a spouse from testifying with regard to any confidential communication that occurred during the marriage irrespective of a subsequent divorce.
After a careful review of the record, we conclude that the sentencing court erred in determining that the confidential communications privilege did not survive defendant's divorce. Therefore, the third statement at issue, which was a request by defendant to his estranged wife asking her to lie to the police, was barred by the confidential communications privilege. An element of confidentiality is implicit in a request to tell a lie.
During the sentencing procedures, the sentencing court ruled that while it would consider the second and third statements for sentencing purposes, it would not consider the first statement. Specifically, the court stated that with the exception of the second and third statements, "I can say that [the remaining statement is] her opinion and her version versus his version and it would not affect the outcome of the sentence of this court." However, the first statement was not deleted from the presentence report.
Our court rules provide that if the sentencing court finds merit in a challenge to information contained in the presentence report, the court is not to take the challenged information into account in sentencing, and "it must direct the probation officer to correct or delete the challenged information in the report ...." MCR 6.425(D)(3) (a). Here, because the sentencing court clearly indicated that it would not use Mary Fisher's first statement for sentencing purposes, consistent with the court rule, that statement should have been *604 stricken from the presentence report. People v Newson (After Remand), 187 Mich App 447, 450; 468 NW2d 249 (1991); People v Swartz, 171 Mich App 364, 379-381; 429 NW2d 905 (1988).
Thus, because of the error in sentencing attributable to the sentencing court's reliance on the statement barred by the confidential marital communications doctrine and the failure to strike from the presentence report challenged information that the court determined it would not use in imposing defendant's sentence, we vacate defendant's sentence and instruct the sentencing court to delete Mary Fisher's first and third statements from the presentence report.
In a related issue, defendant argues that although he was convicted of second-degree murder, the sentencing judge made statements at the sentencing hearing that indicated his belief that defendant's actions were premeditated. In other words, defendant argues that the sentencing court erroneously sentenced him for a charge of which he was acquitted, namely, first-degree murder.
During the sentencing hearing, in reliance upon Mary Fisher's first statement, as reported in the presentence report, the sentencing court stated as follows:
I also made some findings that [defendant] intended to stab [the victim]. There's no question in my mind, it was intentional.
* * *
I spelled it out that when [Mary Fisher] on page 4, where there's a statement by her that, "Is your fucking boyfriend here? Tell him to come out here so I can stick him a couple of times." That's almost premeditated talk. Most importantly then when you get on page 5, when she asks, "Did you stab him?" He replied, "Fuck yes, I stuck him."
*605 That's intentional. That's gross. That's not an accidental matter.
We simply note that the information utilized by the sentencing court in reaching the conclusion that the murder for which defendant was convicted was premeditated is the same information that the sentencing court ruled would not be used in considering an appropriate sentence for defendant. On remand, the first statement must be stricken from the presentence report.
Next, defendant contends that the retroactive application of the revised sentencing guidelines to the sentence on appeal here was a violation of his constitutional right to due process. Specifically, defendant argues that because he was resentenced twice as a result of the court's errors, and despite the fact that the second sentence was shorter and within the revised minimum sentencing guidelines range, it is simply unfair for him to now be subjected to a harsher recommended sentence. In sum, defendant argues that he should not be penalized because of prior errors attributable to the circuit court. We agree.
The revised guidelines, which became effective on October 1, 1988, were not applicable when defendant was first sentenced. Under the original guidelines, the recommended minimum sentence range was seven to sixteen years; however, under the new guidelines, the recommended minimum sentence range is ten to twenty-five years.
While Administrative Order No. 1988-4, 430 Mich ci, requires the circuit courts to apply the second edition of the sentencing guidelines when sentencing a defendant after October 1, 1988, our Supreme Court has observed that "[j]udges are permitted to depart from the sentencing guidelines, and are required merely to explain their *606 reasons for doing so." People v Potts, 436 Mich 295, 302; 461 NW2d 647 (1990). This fact notwithstanding, the guidelines are "`a tool to assist the sentencing judge in the exercise of discretion.'" Id., p 303 (quoting People v Potts, 181 Mich App 311, 313; 448 NW2d 820 (1989), aff'd 436 Mich 295; 461 NW2d 647 (1990). Thus, as the name implies, the sentencing guidelines are the initial guide or tool from which a given sentence is derived. In this case, because lower court errors necessitated a previous remand of this action, the sentencing court on second remand was guided by a harsher recommended sentencing range than that which defendant was originally subjected to. Implicitly, such a result is unacceptable.
In this state, an accused is guaranteed the right to appeal his sentence, Const 1963, art 1, § 20, and the United States Supreme Court has observed:
"[P]enalizing those who choose to exercise" constitutional rights, "would be patently unconstitutional." And the very threat inherent in the existence of such a punitive policy would, with respect to those still in prison, serve to "chill the exercise of basic constitutional rights." ...
A court is "without right to ... put a price on an appeal. A defendant's exercise of a right of appeal must be free and unfettered...."
"This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts." [North Carolina v Pearce, 395 US 711, 724; 89 S Ct 2072; 23 L Ed 2d 656 (1969). Citations omitted.]
Here, after careful review and consideration, we conclude that the errors attributable to the circuit court should not result in defendant's facing the *607 possibility of a harsher sentence pursuant to the revised sentencing guidelines. If a more severe sentence is indeed imposed on remand, it must be for other reasons. See People v Mazzie, 429 Mich 29; 413 NW2d 1 (1987). Therefore, on remand, we instruct the sentencing court to utilize the original sentencing guidelines in resentencing defendant.
In People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), our Supreme Court abandoned the "shock the conscience" test articulated in People v Coles, 417 Mich 523; 339 NW2d 440 (1983), and held that a sentence is an abuse of discretion if it violates the principle of proportionality. While no specific definition of the "principle of proportionality" is provided in Milbourn, it is clear that the concept includes consideration of both the seriousness of the crime involved and the criminal history of the offender. Milbourn, pp 650-654. Our Supreme Court further observed that this principle is generally reflected in the second edition of the sentencing guidelines:
We believe that the gradation of recommended sentencing ranges within the guidelines indicates not only that the full statutory range of possible sentences is being used, but also that the recommended ranges increase as the factors that are adequately represented in the guidelines become more serious. For this reason, we believe that it is safe to assume that in the eyes of the vast majority of trial judges who have chosen to impose sentences within the guideline ranges, the guidelines reflect the relative seriousness of different combinations of offense and offender characteristics. [Id., p 658.]
Nevertheless, the Court further observed:
Conceivably, even a sentence within the sentencing guidelines could be an abuse of discretion in *608 unusual circumstances.... Just as the guidelines may not be a perfect embodiment of the principle of proportionality, so too may a sentence within the guidelines be disproportionately severe or lenient. Thus ... the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines' recommended range. [Id., p 661. Citations omitted. Emphasis added.]
In the instant case, the sentencing court did not have the benefit of the Milbourn decision at the time of sentencing; however, we are assured that on remand the sentencing court will impose a sentence consistent with the principle of proportionality as set forth in Milbourn.
Finally, in light of the incidents that occurred below on remand and were brought before this Court in this appeal, we conclude that it is necessary for us to make sua sponte, a determination with regard to whether defendant should be resentenced before yet another circuit court judge.
In determining whether resentencing should take place before a different judge, this Court applies a tripartite test: (1) whether the original judge reasonably would be expected upon remand to have substantial difficulty in putting out of mind previously expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. People v Evans, 156 Mich App 68, 72; 401 NW2d 312 (1986). See also People v Hughes, 165 Mich App 548, 549-550; 418 NW2d 913 (1987).
Viewing defendant's sentence in light of the *609 applicable considerations, we conclude that resentencing should take place before a different judge.
Reversed and remanded for resentencing consistent with this opinion. We do not retain jurisdiction.
NOTES
[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601723/ | 869 So.2d 704 (2004)
Angie MORRIS, Appellant,
v.
DOLLAR TREE STORE and Specialty Risk Services, Appellees.
No. 1D03-0336.
District Court of Appeal of Florida, First District.
April 6, 2004.
T. Rhett Smith and Teresa E. Liles of Smith & Janes, P.A., Pensacola, for Appellant.
*705 Mary L. Wakeman of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Appellees.
ERVIN, J.
This is a workers' compensation appeal challenging as unreasonable an order awarding attorney's fees to claimant, Angie Morris. We agree that the fee awarded is unreasonable and reverse and remand with directions.
Appellant first contends the judge of compensation claims (JCC) erred in denying her reimbursement for attorney's time expended before the filing of a petition for benefits. In regard to the reasonableness of the fees that should be allowed, claimant's expert, Douglas F. Miller, testified that counsel reasonably expended between 25 and 30 hours, which included the time involved before the filing of the petition for benefits. The JCC awarded a total fee of $4,380.00, based upon 25 attorney-hours exerted, multiplied by $168.00 per hour, yielding a sum of $4,200.00, to which he added $180.00 for paralegal services. The JCC refused, however, to include within the fee assessed the lawyer's pre-petition time, concluding that the plain language of section 440.192(7), Florida Statutes (2001), precluded the consideration of same. Because the JCC's interpretation is one of law, our review standard is de novo.
Section 440.192(7) states:
Notwithstanding the provisions of s. 440.34, a judge of compensation claims may not award attorney's fees payable by the carrier for services expended or costs incurred prior to the filing of a petition that does not meet the requirements of this section.
We find it very difficult to conclude that the above language clearly and unambiguously bars compensation for any attorney time expended before a petition is filed, and particularly so in view of the qualification therein specifically linking the preclusion of fees to a petition that fails to satisfy the statute's requirements. Under the circumstances, the provisions of subsection (7) obviously cannot be considered in isolation from other pertinent statutory specifications, namely, those in section 440.34, relating to the factors to be considered in awarding claimant's attorney fees, and those in section 440.192(2), setting out the requisites of a petition for benefits.
Because of subsection (7)'s reference to other statutes, we deem it necessary to apply the in pari materia canon of statutory construction, which recognizes that statutes will be considered together when "two different statutory provisions deal with the same specific subject or with subjects so connected that the meaning of the one informs the other." See Brown v. State, 848 So.2d 361, 364 (Fla. 4th DCA 2003). In our judgment, subsection (7) is so interconnected with the subsection (2) criteria that the meaning of the former cannot be ascertained without reference to the latter. Section 440.192(2) clearly states that a petition shall be dismissed if it fails to comply with its filing requirements. This court, moreover, in construing the provisions of the two subsections in pari materia, has concluded that no attorney fee can be awarded to claimant's counsel for time expended before the filing of a petition that is later dismissed on the ground that it did not satisfy the subsection (2) requisites. See Kennedy v. Orlando Shader Realty, 711 So.2d 156, 158 (Fla. 1st DCA 1998). The logical inference from Kennedy is that services performed before a proper petition is filed may be included in a fee awarded to a prevailing claimant.
In the case at bar, the petition was not dismissed, nor has any contention been made that it did not meet the statute's *706 prescriptions. We therefore reverse the JCC's construction of section 440.192(7) as barring all attorney time expended before the filing of a petition that complies with the subsection (2) criteria. Although we are aware that the JCC explicitly based his finding that 25 hours of attorney-time were reasonably expended upon the testimony of claimant's expert, who opined that a reasonable amount of time should be between 25 and 30 hours, we note that the JCC also found that once the entries in counsel's verified petition for fees were removed relating to the time involved before the filing of the petition for benefits, "the remaining time is very close to the time Mr. Miller testified would be reasonable for a claim of this type."
Because it appears from the order that the time excluded would have been factored into the fee awarded but for the JCC's erroneous conclusion that the statute precluded consideration of same, we remand the case to the JCC with directions that he revisit his fee determination by including within the fee the attorney-time claimant's counsel expended before filing the petition for benefits, if he decides that such time related to the benefits secured.[1] If the JCC determines on remand that some of the entries in the petition for fees are unrelated to the benefits secured, the JCC shall identify with specificity the time entries for which compensation is denied, or otherwise award fees based on the number of hours set out in the fee petition. See Sanchez v. Woerner Mgmt., Inc., 867 So.2d 1173 (Fla. 1st DCA 2004); Bryant v. Publix Super Markets, 786 So.2d 676 (Fla. 1st DCA 2001).
Appellant next assails the fee ordered as not supported by competent, substantial evidence (CSE), pointing out that her expert, Mr. Smith, the only witness offering evidence as to the value of the fee, testified that the type of case warranted a fee in the amount of $200.00 per hour, yet the JCC awarded an hourly fee of $168.00, despite the absence of any record foundation for same. We agree with appellant that the JCC's finding lacks evidentiary support.
The rule is well recognized that if the issue to be decided turns on the amount of a reasonable hourly rate for an attorney's fee, the appellate court's review standard is whether CSE supports the JCC's conclusion. See Feinberg v. Miami-Dade County, 788 So.2d 417, 418 (Fla. 1st DCA 2001); Miller v. JFK Mem'l Hosp., 624 So.2d 322 (Fla. 1st DCA 1993); Smith v. U.S. Sugar Corp., 624 So.2d 315, 319 (Fla. 1st DCA 1993). Accordingly, once the JCC decides, as he did here, that the application of the statutory factors for assessing a presumptive fee, as provided in section 440.34(1), is "manifestly unfair," the JCC may depart upward or downward, and, in deciding what is a reasonable hourly rate, he or she may consider the fee customarily charged in the area for similar legal work. See Alderman v. Fla. Plastering, 805 So.2d 1097, 1100 (Fla. 1st DCA 2002). In making such assessment, the award must be predicated upon expert testimony regarding the reasonableness of the hourly rate. See Smith, 624 So.2d at 319; G & A Bldg. Maint. v. Makuski, 510 So.2d 1074 (Fla. 1st DCA 1987).
*707 The expert clearly testified that a reasonable fee was $200.00 per hour. The JCC's order ignored that testimony in arriving at a lesser hourly rate. Because there is no support in the record for the amount determined as reasonable by the JCC, the case is remanded with directions that a fee be awarded consistent with the only evidence relating to such issue.
The appellant next asserts the JCC erred in denying her, as the prevailing party, reimbursement of costs associated with certified mail mandated by section 440.192(1) for the filing and service of petitions for benefits. We review the JCC's decision under an abuse of discretion standard[2] and conclude that the denial of same constitutes such an abuse; consequently, we reverse with directions that the costs connected with the two petitions for which benefits were secured (one served on February 8, 2002, and the other on April 16, 2002) be awarded.
In reaching his conclusion that such costs were not taxable, but rather the "cost of doing business," the JCC relied on the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, and noted that civil filing fees are not assessable as costs against the non-prevailing party. Under the Guidelines, mailing costs are considered office expenses and are not recoverable as taxable costs to the prevailing party. See, e.g., Seminole County v. Chandrinos, 816 So.2d 1241, 1246 (Fla. 5th DCA 2002); In re Estate of Williams, 771 So.2d 7, 8 (Fla. 2d DCA 2000); Dep't of Transp. v. Skidmore, 720 So.2d 1125, 1130 (Fla. 4th DCA 1998).
We consider that the JCC's reference to the Guidelines was misplaced. Although no provision under chapter 440 explicitly approves the taxing as costs of pleadings required to be served by certified mail, section 440.34(3) permits a prevailing claimant to tax against the employer "the reasonable costs of such proceedings." We cannot conceive it to be the legislative intent that an injured worker who successfully prosecutes a claim against his or her employer should not be made whole for all costs necessary to maintain the claim. Any conclusion to the contrary would obfuscate the expressed purpose "to ensure the prompt delivery of benefits to the injured worker," and to create "an efficient and self-executing system." § 440.015, Fla. Stat. (2001). It would ignore as well the fundamental purpose of the workers' compensation law, which is that the cost of employment injuries should be placed on the industry served, rather than on society.
We therefore conclude that the legislative refusal to tax certain expenses as costs to successful litigants in the civil arena has no materiality whatsoever to the question of their taxation in workers' compensation proceedings. Florida's Workers' Compensation Law has long been imbued with its own unique policy considerations that are entirely unlike those in any other legal setting. For example, this court has observed that the Rowe (Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985)) lodestar approach, with its contingency factors, used for assessing a reasonable attorney fee, has no applicability to fee awards in which a statute, such as section 440.34, sets out its own criteria. See What An Idea, Inc. v. Sitko, 505 So.2d 497 (Fla. 1st DCA 1987).
REVERSED and REMANDED.
BROWNING, J., concurs; DAVIS, J., concurs in result only.
NOTES
[1] In so deciding, we reject appellee's argument that if the JCC erred at all, it was a technical error that could have been readily correctable on rehearing, which the claimant did not pursue; therefore, the issue should be deemed not preserved. In our judgment, the error is substantive, rather than inconsequential; thus not susceptible to correction by rehearing. See Fla. R. Work. Comp. P. 4.141; Bogdanova v. Royal Hanneford Circus, 848 So.2d 1163, 1164 (Fla. 1st DCA 2003); Aircraft Servs. v. Reyes, 582 So.2d 66, 67 (Fla. 1st DCA 1991).
[2] See McArthur Farms v. Peterson, 586 So.2d 1273, 1276 (Fla. 1st DCA 1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2480517/ | 258 F.Supp.2d 299 (2003)
UNITED STATES,
v.
John J. RIGAS, Timothy J. Rigas, Michael J. Rigas, and Michael C. Mulcahey, Defendants.
No. 02 Cr. 1236(LBS).
United States District Court, S.D. New York.
April 21, 2003.
*301 Christopher J. Clark, Timothy J. Coleman, United States Attorneys Office-Southern District of New York, New York City, for the United States.
Peter Fleming, Jr., Curtis, Mallet-Prevost, Colt & Mosle LLP, New York City, for John Rigas.
Paul R. Grand, Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C., New York City, for Timothy Rigas.
Andrew J. Levander, Swidler, Berlin, Shereff, Friedman, LLP, New York City, for Michael Rigas.
Mark J. Mahoney, Harrington & Mahoney, Buffalo, NY, for Michael Mulcahey.
MEMORANDUM AND ORDER
SAND, District Judge.
Defendants John Rigas, Timothy Rigas, Michael Rigas, and Michael Mulcahey ("Defendants") are charged with conspiracy, securities fraud, bank fraud, and wire fraud in connection with the control and management of Adelphia Communications Corporation ("Adelphia"). Pursuant to Federal Rule of Criminal Procedure 7(f), John Rigas, Michael Rigas, and Michael Mulcahey now seek an order directing the government to provide bills of particulars responsive to their individual requests.[1] Pursuant to Federal Rule of Criminal Procedure 16(a)(1)(E)(i), Defendants also move the Court to compel disclosure of certain documents prepared by legal and accounting professionals who examined Defendants' conduct while employed by Adelphia's Special Committee of Independent Directors. For the reasons set forth below, the motions are denied.
BACKGROUND
The 103-page, 214-paragraph indictment in this case ("Indictment") charges Defendants with one count of conspiracy and 23 counts of securities fraud, wire fraud, and bank fraud. Briefly summarized, *302 the Indictment outlines the following facts. As of December 31, 2000, Adelphia was the sixth largest cable television provider in the United States and was controlled by members of the Rigas family. Organized as a holding company, Adelphia was the indirect owner of assets owned by its subsidiaries. Separate, but connected with, Adelphia and its subsidiaries were certain Rigas Family Entities ("RFEs"), which were involved in cable television ("Cable RFEs") and other businesses ("Other RFEs"). The operating revenues and expenses of Adelphia, its subsidiaries, and the RFEs were organized through a centralized cash management system ("CMS").
Adelphia's capital structure became highly leveraged due to a series of acquisitions of other cable operators in 1999, which were funded through (1) secured loans from banks and (2) the sale of debt and equity securities to the public. Starting in 1996, Adelphia subsidiaries had also entered into co-borrowing agreements with Cable RFEs in which both participants were jointly and severally liable for debt incurred in connection with certain secured syndicated bank loans. The Indictment sets out a number of these co-borrowing credit facilities as well as the debt securities and preferred stock issued by Adelphia and its subsidiaries. During this period of leveraged acquisitions and co-borrowing, Defendants filed financial statements pursuant to SEC regulations and made additional material disclosures about its business and performance. The latter disclosures included quarterly press releases and conference calls in which Defendants discussed Adelphia's earnings, growth, and number of cable and high-speed Internet subscribers.
The Indictment outlines Defendants' participation in an alleged scheme to defraud Adelphia shareholders and creditors between January 1999 and May 2002. Five aspects of the alleged scheme are the focus of the Indictment: (1) fraud in connection with Adelphia's liability under the co-borrowing agreements; (2) fraud in connection with Adelphia's efforts at deleveraging; (3) fraudulent reporting of Adelphia's operating results; (4) fraudulent efforts to avoid or misrepresent compliance with the terms of bank loans; and (5) fraud in connection with a series of self-dealing transactions between Adelphia and members of the Rigas family. The Indictment describes each aspect of the alleged scheme in some detail. Regarding Adelphia's liability under the co-borrowing agreements, for example, the Indictment alleges that Defendants caused Adelphia to file Form 10-K documents containing financial statements that concealed the outstanding joint and several liabilities under the co-borrowing agreements. Regarding the alleged self-dealing, the Indictment avers that Defendants caused Adelphia to enter into a series of transactions for the benefit of the Rigas family, including the satisfaction by Adelphia of margin calls on Rigas accounts through the use of unauthorized and undisclosed wire transfers from the CMS, the personal use of Adelphia's corporate aircraft, and the use of Adelphia funds to construct a golf course in Coudersport, Pennsylvania on land owned by John Rigas. As part of the conspiracy count, the Indictment outlines the means and methods used by Defendants and a series of overt acts, which list specific agreements and dates, committed in furtherance of the conspiracy. The securities fraud, wire fraud, and bank fraud counts specify the securities, wire transfers, and bank credit agreements at issue. In sum, the Indictment centers on an approximately three-year period in which Defendants allegedly engaged in a pattern of criminal conduct designed to conceal or minimize Adelphia's increasingly precarious financial condition and the Rigas family's *303 improper use of Adelphia funds for personal purposes.
This case is scheduled for trial on January 5, 2004. On November 1, 2002, the government completed Rule 16 discovery of the information in its possession, which included thousands of documents along with indices identifying who produced the document and, in some cases, the subject matter of the document or group of documents identified. Nevertheless, both parties acknowledge that, due to the complexity of the case, their respective investigations are ongoing. (Tr. of Oral Arg. of 4/10/03 ("Tr.") 18-19.) The defense, therefore, continues to obtain material as it becomes available and as the government completes the process of gathering data and making decisions with respect to the streamlining of the case. (Tr. 30-31.) To ensure adequate time to prepare for trial, the government has agreed to the following discovery schedule: disclosure of proposed business records to be offered into evidence two-and-a-half months before trial; disclosure of the government's witness list, witness statements, impeachment material for the government's witnesses, and notice of Rule 404(b) evidence by November 24, 2003; and disclosure of the government's marked trial exhibits and expert notices by December 5, 2003, one month before trial. (Tr. 22; Gov't Mem. 11-12.)
All Defendants filed a joint motion ("Joint Motion") for a bill of particulars requesting that the government identify four general categories of information: (1) the alleged "sham" transactions and false entries in Adelphia's books and records, which reflected an effort to manipulate Adelphia's earnings before interest, taxes, depreciation, and amortization ("EBITDA"); (2) the particular oral and written misrepresentations to which the Indictment refers; (3) the misconduct included in the phrase "among other things"; and (4) the identity of any co-conspirators or other participants in the criminal activity. At the April 10, 2003 oral argument, the parties agreed to resolve the issues raised in the Joint Motion in the following manner. Within 60 days, the government would provide a non-preclusive bill of particulars. This initial bill of particulars may be supplemented or amended as the government proceeds with its investigation and uncovers material that may have greater significance than previously furnished material. Six weeks prior to trial, however, at the same time the government provides its witness list to Defendants, the process of supplementation will end, and Defendants will have a final bill of particulars. (Tr. 20, 23, 31-32, 71.)
In light of the resolution of the Joint Motion on consent, the Court turns to the individual motions requesting further bills of particulars and the motion to compel discovery.
DISCUSSION
A. Individual Requests for Bills of Particulars
"A bill of particulars is required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused." United States v. Walsh, 194 F.3d 37, 47 (2d Cir.1999) (internal quotations omitted). The focus on sufficient specificity preserves the function of the bill of particulars: "enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." United States v. Davidoff 845 F.2d 1151, 1154 (2d Cir.1988); see also United States v. Torres, 901 F.2d 205, 234 (2d Cir.1990). Although disclosure of the government's evidence and theory of the case will not bar an otherwise necessary particularization of the charges, United *304 States v. Barnes, 158 F.3d 662, 665 (2d Cir.1998), the bill of particulars cannot itself be used as a discovery vehicle or a means to lock the government into its proof. United States v. Fruchter, 104 F.Supp.2d 289, 311-12 (S.D.N.Y.2000); United States v. Perez, 940 F.Supp. 540, 550 (S.D.N.Y.1996); United States v. Strawberry, 892 F.Supp. 519, 526 (S.D.N.Y.1995). The decision whether to order the filing of a bill of particulars is within the sound discretion of the district court. Walsh, 194 F.3d at 47.
John Rigas, Michael Rigas, and Michael Mulcahey each make separate requests for bills of particulars, which are described in turn and considered together. John Rigas was Chairman of the Board of Directors, President and Chief Executive Officer of Adelphia. The Indictment alleges that he was principally and ultimately responsible for the management of Adelphia's business, and thus it charges him with numerous alleged fraudulent activities and self-dealing transactions. In response, he argues that the government fails to indicate whether he personally participated in, or had personal knowledge of, the various "internal" schemes alleged in the Indictment and, if not, the theory upon which the government seeks to hold him criminally liable.
Michael Rigas was Executive Vice President for Operations, Secretary, and a member of the Board of Directors of Adelphia. The Indictment alleges that he was responsible for the business operations of Adelphia. It describes his involvement in the preparation of financial statements and press releases, conference calls, and "road shows." It names him as a participant in the scheme to avoid reporting the joint liability of Adelphia on the co-borrowing agreements and identifies him as being involved in misrepresentations regarding Adelphia's purported deleveraging, earnings, and operations performance. In his individual motion for a bill of particulars, Michael Rigas seeks two general categories of information. First, he requests identification of each of the schemes for which he is liable, the legal basis for his liability, and the particular conduct for which he is liable. This category can be generally described as a request for more information regarding his role in particular aspects of the financial schemes giving rise to the criminal charges at issue. Second, he requests the identification of each of the Adelphia employees alleged to have acted at his direction in specified paragraphs of the Indictment. (See ¶¶ 56-57, 149-50.)
Michael Mulcahey was Director of Internal Reporting for Adelphia. The Indictment alleges that he participated in the management of Adelphia's treasury functions: supervising money flowing into and out of Adelphia, reporting Adelphia's financial condition to lenders and debt security holders, and internal record-keeping regarding expenditures on behalf of the Rigas family and entities they owned or controlled. Mulcahey's request for particulars seeks a similar level of detail as Michael Rigas's motion. He argues that the Indictment fails to identify the conduct that establishes his role in the alleged conspiracy, the employees who acted at his direction, the aspects of the CMS that were illegal, the books or records that contain false entries, and the property subject to forfeiture. In sections of the Indictment where he is named, (see, e.g., ¶¶ 68-71, 82, 96, 161-65), Mulcahey asserts that the charges do not relate to business functions in which he had any responsibility or specify his conduct in adequate detail.
Upon careful review of the Indictment, the Court concludes that further bills of particulars are not warranted. First, unlike indictments involving a worldwide criminal conspiracy, United States v. *305 Bin Laden, 92 F.Supp.2d 225 (S.D.N.Y. 2000), or defendants who are identified as tangential participants in the criminal activity, United States v. Nachamie, 91 F.Supp.2d 565, 571 (S.D.N.Y.2000), the present case involves a small group of defendants who are alleged to have had intimate involvement with the preparation and carrying out of a series of fraudulent activities over a three-year period. Even if the alleged conspiracy is multi-faceted, Defendants are simply not faced with an indictment that lacks a "shred of detail" about the nature of the charges. Barnes, 158 F.3d at 665. The Indictment sets forth each aspect of the scheme in a manner sufficient to apprise Defendants of the conduct with which they are charged. Furthermore, the Indictment must be viewed in the broader context of the information available to Defendants. See United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir.1987) ("Generally, if the information sought by defendant is provided in the indictment or in some acceptable alternate form, no bill of particulars is required."); Bin Laden, 92 F.Supp.2d at 233 (stating that a court must examine the totality of information available to the defendants when deciding whether to order filing of a bill of particulars). Here, the government previously agreed to an advanced schedule of pretrial discovery disclosing, inter alia, marked exhibits and witness lists, and it has now agreed to provide a bill of particulars addressing Defendants' general areas of concern. The combination of the lengthy Indictment, the early discovery, and the further particularization to be provided by the government goes well beyond the minimum level of detail necessary to prepare a defense and to avoid surprise. The government is not obligated to go further and provide specific information regarding the individual Defendants' alleged role in the various aspects of the scheme. See, e.g., United States v. Cephas, 937 F.2d 816, 823 (2d Cir.1991) ("[S]pecific acts need not be alleged with respect to every named defendant, if the indictment is otherwise sufficient and names the other persons involved in the criminal activity."); Nachamie, 91 F.Supp.2d at 575 (rejecting demand for bill of particulars identifying each false Medicare claim prepared by defendant and submitted as part of the conspiracy); United States v. Ferrarini 9 F.Supp.2d 284, 299-300 (S.D.N.Y.1998) (rejecting demand for bill of particulars outlining defendant's specific role in the charged conduct and actions taken with respect to mail and insurance fraud counts); see also Fruchter, 104 F.Supp.2d at 312 ("[T]he important question is whether the information sought is necessary, not whether it is helpful.") (internal quotations omitted).
Defendants rightly note that the government cannot rely on the sheer quantity of the documents produced during discovery as an automatic substitute for identifying the charges with the necessary specificity. Davidoff, 845 F.2d at 1155; Bortnovsky, 820 F.2d at 575. This general principle, however, does not allow Defendants to use the vastness or complexity of the alleged conspiracy and its attendant documentary evidence as a sword against the government when the Indictment, discovery, and other information provided by the government adequately notify Defendants of the charges against them. See, e.g., United States v. Panza, 750 F.2d 1141, 1148 (2d Cir.1984) (stating that, in a case involving an elaborate three-year insurance fraud scheme implicating numerous defendants, denial of a bill of particulars was not an abuse of discretion when indictment described elements of the scheme and prosecutor provided extensive discovery); United States v. Hanna, 198 F.Supp.2d 236, 249 (E.D.N.Y.2002) (denying bill of particulars in a case of securities, mail, and wire *306 fraud involving 21 defendants and 119 counts). Given the discovery schedule and the parties' agreement providing for a bill of particulars that addresses Defendants' general concerns, the Court concludes that further particularization is not necessary. The individual motions for bills of particulars are denied.
B. Motion to Compel Discovery
Defendants also move to compel disclosure of certain documents produced by two law firms, Covington & Burling and Boies, Schiller & Flexner, and the accounting firm PriceWaterhouseCoopers (collectively, "Firms"). According to Defendants, the Firms were engaged by Adelphia and its Special Committee to investigate the conduct of Defendants and to determine whether or not Defendants engaged in any wrongdoing during their management of Adelphia. As part of their investigation, the Firms created catalogues indexing Adelphia's documents by issue, conducted interviews, made presentations to the government and other parties, and prepared reports synthesizing their conclusions. Defendants now request these memoranda, presentations, reports, and issues catalogues (collectively, "Firm Documents") pursuant to Federal Rule of Criminal Procedure 16.
The government does not deny that it possesses at least some of the Firm Documents. The prosecutor has agreed to provide any documents referred to, cited in, or incorporated in the Firm Documents; any witness statements subject to disclosure under 18 U.S.C. § 3500; and any Brady or Giglio material contained therein. The government, however, opposes Defendants' request for the issue catalogues and the Firms' memoranda, presentations, or reports summarizing their conclusions. The government avers that the issues catalogues correspond only to a subset of the discovery previously produced by the government and that it is not required to produce documents containing the Firms' analytical conclusions.
Defendants rely exclusively on Federal Rule of Criminal Procedure 16(a)(1)(E)(i) as the basis for their request. Rule 16(a)(1)(E)(i) provides:
Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and: (i) the item is material to preparing the defense[.]
Rule 16(a)(1)(E)(i) entitles a defendant to documents or other items that are material to preparing arguments in response to the prosecution's case-in-chief.[2]United States v. Armstrong, 517 U.S. 456, 462, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). The key term for present purposes is "material." A document is material if:
[I]t could be used to counter the government's case or to bolster a defense; information not meeting either of those criteria is not to be deemed material within the meaning of the Rule merely because the government may be able to use it to rebut a defense position.... Nor is it to be deemed material merely because it would have dissuaded the defendant from proffering easily impeached testimony.
United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir.1993) (internal citations omitted); cf. United States v. Maniktala, 934 F.2d 25, 28 (2d Cir.1991) ("Materiality *307 means more than that the evidence in question bears some abstract logical relationship to the issues in the case. There must be some indication that the pretrial disclosure of the disputed evidence would have enabled the defendant significantly to alter the quantum of proof in his favor.") (quoting United States v. Ross, 511 F.2d 757, 762-763 (5th Cir.1975)).
It is Defendants' burden to make a prima facie showing that documents sought under Rule 16(a)(1)(E)(i) are material to preparing the defense. United States v. McGuinness, 764 F.Supp. 888, 894 (S.D.N.Y.1991). "To establish a showing of materiality, a defendant must offer more than the conclusory allegation that the requested evidence is material." United States v. Ashley, 905 F.Supp. 1146, 1168 (E.D.N.Y.1995) (internal quotations omitted). Here, Defendants argue that the Firm Documents will save them time in sifting through discovery and, as the information contained therein presumably played a role in the structure of the government's case, will provide information material to preparing their defense.
Judge Swain recently addressed a similar request, and the Court finds her reasoning persuasive in the present case. United States v. Reddy, 190 F.Supp.2d 558 (S.D.N.Y.2002). In Reddy, the defendants were charged with mail and wire fraud in connection with an alleged scheme to defraud Electronic Data Systems, Inc. ("EDS") by falsely overstating earnings of an EDS subsidiary. After learning of the scheme, EDS conducted its own internal investigation, which included interviewing corporate employees and analyzing evidence gathered over the course of the investigation. Pursuant to its discovery obligations, the government produced all documents gathered in the investigation and statements of the defendants, but withheld two categories of materials: "(1) witness statements obtained by EDS's investigators; and (2) the work product of EDS's investigators, such as documents created by EDS's investigators during the course of the investigation setting forth the investigator's analysis of the evidence they had gathered." Id. at 572. The defendants requested the documents pursuant to Rule 16 on the grounds that they established the basis for the prosecution and thus were material to their defense. Disagreeing with the defendants, Judge Swain held that the documents were not discoverable, except to the extent that the investigative file contained Brady or Jencks Act material. Id. at 573.
The Court reaches the same conclusion. Although they argue strenuously that the Firm Documents are vital to preparing their defense, at bottom Defendants attempt to equate "material" with "useful" in order to meet their burden under Rule 16(a)(1)(E)(i). (See Tr. 64-66.) Defendants cite no relevant support for this construction. Defendants' motion to compel disclosure of the Firm Documents is denied.
CONCLUSION
For the foregoing reasons, Defendants' motions for orders directing the government to file a bill of particulars and to disclose the Firm Documents are denied, except to the extent agreed upon by the parties.
SO ORDERED
NOTES
[1] Defendants originally brought a joint motion seeking a bill of particulars on a number of grounds applicable to all Defendants. As described below, that motion has been resolved on consent.
[2] Formerly Rule 16(a)(1)(C), current Rule 16(a)(1)(E)(i) was relettered for stylistic purposes on December 1, 2002. Fed.R.Crim.P. 16 advisory committee's note (2002). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922322/ | 897 A.2d 821 (2006)
392 Md. 455
Wesley Allen ROLLINS
v.
STATE of Maryland.
No. 19 September Term, 2005.
Court of Appeals of Maryland.
May 5, 2006.
*823 Stacy W. McCormack, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), Baltimore, for Petitioner/Cross-Respondent.
Edward J. Kelley, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of MD. on brief), Baltimore, for Respondent/Cross-Petitioner.
Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.
GREENE, Judge.
After a jury trial in the Circuit Court for Baltimore County, petitioner, Wesley Allen Rollins, was convicted of the crimes of first-degree felony murder, second-degree murder, robbery, and burglary relating to the death of Irene Ebberts. Petitioner seeks review of the judgment of the Court of Special Appeals affirming his convictions. We granted certiorari, Rollins v. State, 387 Md. 462, 875 A.2d 767 (2005), to review the denial of petitioner's pretrial motion to exclude the testimony of deputy medical examiner, Dr. Mary G. Ripple, allegedly derived from "hearsay information unrelated to medical findings" in the autopsy report for Ms. Ebberts that was prepared by former Assistant Medical Examiner, Dr. Joseph Pestaner. Petitioner alleges that because Dr. Ripple's opinion was based on hearsay statements contained in the autopsy report from witnesses who may or may not testify at trial, Rollins's right to confrontation under the Sixth and Fourteenth Amendments of the United States Constitution and under Article 21 of the Maryland Declaration of Rights[1] would be violated by the admission of such testimony. In addition, we shall review the trial court's alleged error in the admission of Dr. Ripple's expert testimony relating to the time and manner of Ms. Ebberts's death.
Petitioner presents two questions for our review, which we have rephrased:[2]
1. Did the admission of the autopsy report in the instant case violate the *824 petitioner's Sixth Amendment right to confrontation?
2. If preserved, did the trial court err in allowing the medical examiner to render an expert opinion regarding the cause and time of death of Ms. Ebberts?
For the reasons stated below, we answer both questions in the negative and affirm the judgment of the intermediate appellate court. We hold that the autopsy report, as redacted, contained non-testimonial hearsay statements in nature that were admissible under either the business or public records exceptions to the hearsay rule. We further hold that, under the facts of the instant case, the availability of a witness is immaterial to the question of admissibility of hearsay evidence under either the business or public records exception. Opinions, speculation, and other conclusions drawn from the objective findings in autopsy reports are testimonial and should be redacted before the report is admitted into evidence. Because all testimonial statements in nature were redacted from the autopsy report prepared by Dr. Pestaner prior to its admission into evidence, and because the autopsy report fit within the business and public records hearsay exceptions, petitioner's rights under the Confrontation Clause were not violated.
Facts
The facts surrounding the death of Ms. Ebberts were detailed by the intermediate appellate court:
On October 19, 2001, John Ebberts called his Uncle, William Garland, and asked him to determine whether his mother, the victim, seventy-one year old Irene Ebberts, was all right. Upon arriving at the victim's house, Garland, his brother, and his brother's wife, noticed the screen door and front door were open. They entered the home and found the victim lying in her bed. Although her oxygen machine was still operating, she was unresponsive to Garland.
The paramedics subsequently arrived, responding to a "cardiac arrest" call from Garland, and pronounced the victim deceased upon arrival. After recounting the victim's poor health and recognizing "no signs of trauma," the paramedics turned off the victim's oxygen machine and the police arrived shortly thereafter. Baltimore County Police Officer Richard McCampbell was the first to arrive at the scene and the victim's relatives explained that the victim was in poor physical health. Officer McCampbell observed an open window near the victim, which had "dirt and debris" on the window sill, and noticed there was a garbage can adjacent to the open window outside the home. He subsequently contacted the Baltimore County Homicide Unit with what he deemed a "suspicious death." Homicide Detective Childs arrived and, after noting the same observations Officer McCampbell had made, discovered that the pillows were in the middle of the bed without covers, as well as "some evidence of *825 ransacking or searching the bedroom." During the investigation, officers discovered that cash and jewelry boxes belonging to the victim were missing. The victim's neighbor, the appellant, became a suspect after his girlfriend provided the officers with information, including the fact that [Rollins] told her he could kill the victim by "putting a pillow over her head."
Rollins v. State, 161 Md.App. 34, 42-43, 866 A.2d 926, 930-31 (2005) (footnote omitted).
Petitioner was arrested on October 24, 2001, and during questioning admitted to breaking into Ms. Ebberts's house to "borrow" money, but denied harming her. He was consequently charged with burglary on that same day. On October 20, 2001, Dr. Pestaner noted on the victim's death certificate that the cause of death was "pending," and on October 29, 2001, Dr. Pestaner concluded, as stated in the autopsy report, that the cause of death was "smothering" and the manner of death was "homicide." Dr. Pestaner's autopsy report included the following pathologic diagnoses determining the cause of Ms. Ebberts's death: (I) "[s]mothering;" (II) "[h]ypetensive cardiovascular disease;" (III) "[l]ung, bronchopneumonia;" (IV) "[c]hronic bronchitis and pulmonary emphysema;" and (V) "[p]leural adhesions." In the "Opinion" portion of the autopsy report, Dr. Pestaner noted that Ms. Ebberts had died of "smothering, a lack of oxygen from covering the nose and mouth." Evidence of smothering included "hemorrhage in the mucosa on one side of the mouth." The manner of death noted by Dr. Pestaner was "homicide."
The autopsy report, as redacted, was summarized by the Court of Special Appeals:
The contents of the autopsy report may be summarized as follows: Pages two and three of Dr. Pestaner's report, captioned "INTERNAL EXAMINATION", detail the condition of the victim's body cavities, head, neck, cardiovascular system, respiratory system, liver and biliary system, elementary tract, genitourinary system, recticuloendothelial system, endocrine system and musculoskeletal system. Aside from the pathologies associated with the victim's bronchopneumonia exacerbated by severe emphysema and heart disease, the results of the internal examination were unremarkable. On page one of Dr. Pestaner's report, the external examination revealed a 1 inch contusion on the left elbow and the right arm had a 2? × 1? contusion. Under the caption, "EVIDENCE OF INJURY," Dr. Pestaner indicated: the right buccal mucosa adjacent to the upper denture, in an area adjacent to the root of tooth # 3, had a 1/4? area of superficial hemorrhage. No petechiae were noted of the eyes, mouth, face or airway. The form of the neck was atraumatic. Under "MICROSCOPIC EXAMINATION," the following was noted: "Gum: Acute hemorrhage into underlying non-keratinizing squamous epithelium and into underlying connective tissue Right Forearm: Acute hemorrhage. Scattered iron positivity. Right Arm: acute hemorrhage. Iron stain negative." Dr. Pestaner's conclusions are summed up on the final page of the autopsy report:
This 71 year old white female, Irene Ebberts, died of smothering, a lack of oxygen from covering the nose and mouth. Ms. Ebberts was found dead in bed at her house. Investigation revealed personal property missing and previous threats of harm had been made to smother Ms. Ebberts. Autopsy revealed a sick woman who had significant heart and lung disease and an acute pneumonia was present *826 in the lung. Evidence of smothering[3] included hemorrhage in the mucosa on one side of the mouth. The manner of death is homicide. The decedent was not consuming alcoholic beverages prior to death and a comprehensive drug test was negative. There was no evidence of sexual activity.
Id. at 43 n. 1, 866 A.2d at 931 n. 1. The following describes the information surrounding the admission of the autopsy report, the trial judge's redactions, and the intermediate appellate court's conclusions:
As to the contents of the autopsy report to which appellant specifically interposed an objection, the record unequivocally discloses that appellant objected to admission of the report without the testimony of Dr. Pestaner; then he specifically objected to any opinion contained in the report; he also objected to Dr. Ripple's use of the report in formulating her own opinion. Turning to the question of whether all or part of the report was admitted into evidence, we cannot discern from our inspection of the autopsy report contained in the record on appeal that any portion of the report was redacted. The court's statements, however, regarding opinions in the report during the hearing on the Motion to Exclude Testimony of the Medical Examiner, and various references to deletions from the report during examinations of witnesses, indicate that the *827 court did, in fact, redact the cause and manner of death.
* * * *
During the course of the hearing on the Motion to Exclude the Testimony of the Medical Examiner, the court had decided that "the only thing I can see here that is an opinion is disease ... smothering ... [and] homicide" and disease; the court indicated that it would "make sure that the doctor will say that the rest of these are factual observations." Accordingly, the trial judge redacted what he determined constituted opinion, i.e., the section captioned "manner of death" and the references to smothering, homicide and disease. Consequently, the trial judge removed from the jury's consideration the ultimate conclusion contained in Dr. Pestaner's report that the manner of death was homicide by asphyxiation. There is no issue presented regarding the denial of the right to confrontation, therefore, as to Dr. Pestaner's opinion regarding the cause of death.
Rollins, 161 Md.App. at 76-79, 866 A.2d at 951-52 (footnote omitted).
Rollins was charged with murder on October 31, 2001. Dr. Pestaner did not testify at trial.[4] Rollins filed a pretrial motion to prevent the deputy medical examiner, Dr. Ripple, from offering testimony and opinions that were "based on hearsay information that is unrelated to the medical findings of the examination of the alleged victim." Rollins argued that Dr. Ripple's conclusions and opinions were largely unsupported by the contents of the autopsy report and that her opinions were based upon "hearsay statements that were provided by the investigating detectives in this case, rather than medical findings." Id. at 43-44, 866 A.2d at 931. Pursuant to Maryland Rule 5-702, Rollins also contended that Dr. Ripple's opinion was "based on testimony from potential witnesses whom the State would otherwise be required to call in its case in chief rather than medical findings," and, thus, the testimony would not be helpful to the jury. Petitioner's assignment of error in the intermediate appellate court was based on his contention that Dr. Ripple's testimony would constitute a violation of the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights.[5] The defense motion to prevent the testimony of Dr. Ripple was noted, but denied.
At trial, the State presented Dr. Ripple as an expert witness and the defense countered *828 with three expert witnesses who disputed Dr. Ripple's testimony on various grounds, each essentially contending that Ms. Ebberts died of natural causes. Rollins was found guilty by the jury of first-degree felony murder, second-degree murder, robbery, and burglary. As a result of the first-degree murder conviction, the State sought the death penalty. Ultimately, the trial judge sentenced Rollins to life without the possibility of parole.
Discussion
I. Did the admission of the autopsy report in the instant case violate the petitioner's Sixth Amendment right to confrontation?
Rollins primarily contends that the admission of Ms. Ebberts's autopsy report, without the testimony of the doctor who prepared the report, violated his constitutional right to "be confronted with witnesses against him" under the Confrontation Clause, Amendment VI of the Constitution of the United States and Article 21 of the Maryland Declaration of Rights. The seminal case on this issue is Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Petitioner contends that the Crawford decision changed the law regarding the Confrontation Clause, and thus argues that the distinction between fact and opinion in an autopsy report is no longer a factor in determining whether the admission of an autopsy report absent the testimony of the person who prepared the report violates an accused's right to confrontation.[6]
The Crawford Decision
In Crawford's trial for assault and attempted murder, the tape-recorded statement of Crawford's wife was offered as evidence to rebut Crawford's claim that he attacked the victim in self-defense.[7] At trial, Crawford's wife did not testify because of Washington State's marital privilege.[8] The privilege, however, did not extend to statements made outside of court that were admissible under a hearsay exception, and Crawford's wife's statements were admitted notwithstanding the marital privilege. Crawford, 541 U.S. at 40, 124 S.Ct. at 1357-58. Crawford argued that the admission of his wife's out-of-court statement violated his constitutional right to confront the witnesses against him. Id. at 40, 124 S.Ct. at 1358. The Supreme Court examined its holding in Ohio v. Roberts, *829 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), that the right to confrontation will not prevent the admission of a statement made against a criminal defendant by an unavailable witness if the statement possesses "adequate `indicia of reliability,'" meaning that the statement either "fall[s] within a `firmly rooted hearsay exception' or bear[s] `particularized guarantees of trustworthiness.'" Crawford, 541 U.S. at 40, 124 S.Ct. at 1358 (quoting Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539). Primarily, the Court noted that two inferences about the Confrontation Clause could be gleaned from history, the first of which is that the "principal evil" that the Confrontation Clause was meant to address was "the use of ex parte examinations as evidence against the accused." Id. at 50, 124 S.Ct. at 1363.
The second inference about the Confrontation Clause, supported by history, is that "the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless ... [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Id. at 53-54, 124 S.Ct. at 1365. The prior opportunity to cross-examine is a condition precedent for the admissibility of testimonial statements, with some exceptions. The Court stated that this conclusion was not meant
[to] deny that "[t]here were always exceptions to the general rule of exclusion" of hearsay evidence.... But there is scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case. [Most of the hearsay] exceptions covered statements that by their nature were not testimonial for example, business records or statements in furtherance of a conspiracy. We do not infer from these that the Framers thought exceptions would apply even to prior testimony. Cf. Lilly v. Virginia, 527 U.S. 116, 134, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (plurality opinion) ("[A]ccomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule").
Crawford, 541 U.S. at 56, 124 S.Ct. at 1367 (footnotes omitted).
The text of the Confrontation Clause regarding witnesses against the accused was interpreted by the Court to mean those individuals who "bear testimony" against the accused. Id. at 51, 124 S.Ct. at 1364. Noting Roberts's conditioning of the admissibility of all hearsay evidence on whether it falls under a "firmly rooted hearsay exception" or bears "particularized guarantees of trustworthiness," the Court found that the Roberts test departed from the noted historical inferences about the Confrontation Clause. Id. at 60, 124 S.Ct. at 1369. The Court ultimately rejected the Roberts test for testimonial statements, concluding that conditioning the admissibility of all hearsay evidence on its "reliability," and leaving the Confrontation Clause's protection "to the vagaries of the rules of evidence," was inconsistent with the Framers' intent. Id. at 61, 124 S.Ct. at 1370.
While the Supreme Court was reluctant to detail a comprehensive definition of testimonial, it did provide some guidance. The Court noted:
Various formulations of this core class of "testimonial" statements exist: "ex parte in court testimony or its functional equivalent that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially[;]" "extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions[;]" "statements that were made under circumstances *830 which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]"
Id. at 51-52, 124 S.Ct. at 1364 (citations omitted). "Testimony" was defined as "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford, 541 U.S. at 51, 124 S.Ct. at 1364 (quoting 1 N. WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)). The Supreme Court mentioned that there are multiple examples of "testimonial" statements and remarked particularly that statements taken by police officers in the course of interrogations are testimonial. Id. at 52, 124 S.Ct. at 1364. The Court stopped short of establishing a complete definition of what is testimonial, but noted that "prior testimony at a preliminary hearing, before a grand jury, or at a former trial ... and... police interrogations" are considered to be testimonial. Id. at 68, 124 S.Ct. at 1374.
We recently discussed Crawford and the admission of testimonial statements in connection with the Confrontation Clause in State v. Snowden, 385 Md. 64, 867 A.2d 314 (2005). Snowden was arrested, and eventually convicted, on several counts of sexual abuse based on information obtained during an interview between a sexual abuse investigator with the Montgomery County Department of Health and Human Services, and the alleged victims. Id. at 69-71, 867 A.2d at 316-17. The State filed a motion to invoke Md.Code (2001), § 11-304 of the Criminal Procedure Article.[9]Id. at 73, 867 A.2d at 318-19. The investigator's testimony was found to be sufficient under § 11-304 and was permitted by the trial judge after an examination of the children. Id. at 73, 867 A.2d at 319. Snowden objected, arguing that this admission was in violation of his Sixth Amendment right to confrontation, but the trial court overruled his objection and Snowden was found guilty on all counts. Id. at 74, 867 A.2d at 319.
In our analysis, we addressed the Supreme Court's categorization of "testimonial" statements in Crawford:
As the Court noted, these standards share a common nucleus in that each involves a formal or official statement made or elicited with the purpose of being introduced at a criminal trial. Id. at 1364, 1367, n. 7 (finding that statements are testimonial where "government officers [are involved] in the production of testimony with an eye toward trial"). Although these standards focus on the objective quality of the statement made, the uniting theme underlying the Crawford holding is that when a statement is made in the course of a criminal investigation initiated by the government, the Confrontation Clause forbids its introduction unless the defendant has had an opportunity to cross-examine the declarant. Id. at 1364.
Id. at 81, 867 A.2d at 324. Analyzing Crawford, we opined:
In the context of "police interrogations," we are directed by Crawford to conclude that the proper standard to apply to determine whether a statement is testimonial is whether the statements were made under circumstances that would lead an objective declarant reasonably to believe that the statement would be available for use at a later trial.
Id. at 83, 867 A.2d at 325 (quoting Crawford, supra, 541 U.S. at 51, 124 S.Ct. at 1364) (footnote omitted) (emphasis added). We noted that, notwithstanding the children's awareness of why they were being interviewed, "the express purpose of bringing the children to the facility to be interviewed was to develop their testimony for *831 possible use at trial." Id. at 85, 867 A.2d at 326 (emphasis added.) Disregarding the State's arguments as to the nature of the interviews with the children, we held that, "[n]o matter what other motives exist," if the circumstances of the given statement would lead an objective person to believe that the statements made in response to government interrogation would be used at trial later, the admission of those statements must be subject to the requirements of Crawford. Id. at 92, 867 A.2d at 330.
Whether an autopsy report is testimonial in nature pursuant to Crawford is an issue of first impression in Maryland. We turn to the decisions of states that have decided this issue and similar issues.
Several jurisdictions have interpreted Crawford strictly, finding that reports that do not fall within the three enumerated categories of testimonial statements specified in Crawford do not implicate the Confrontation Clause. See State v. Dedman, 136 N.M. 561, 102 P.3d 628 (2004) (holding that a blood-alcohol report was not testimonial because it did not fall within the categories of testimonial statements enumerated in Crawford and because the report was not prepared by law enforcement personnel). In Moreno Denoso v. State, 156 S.W.3d 166 (Tex.Ct.App.2005), the defendant objected to the admission of an autopsy report because the maker of the report had died and did not testify at trial. Id. at 181. The trial court in Moreno Denoso found that the autopsy report was admissible as a public record. Id. at 180. The court noted that the autopsy report "set forth matters pursuant to a duty imposed by law," and detailed the state of decomposition of the body in addition to observations about the victim's body. Id. at 180, 182. The Moreno Denoso court found that the autopsy report did not fit within the enumerated categories in Crawford, and therefore, it was non-testimonial and admissible. Id. See also Mitchell v. State, No. 04-04-00885-CR, 2005 WL 3477857 (Tex.App. Dec.21, 2005) (finding that an autopsy report is not testimonial evidence in violation of Crawford because it is a business record, and therefore, nontestimonial).
Crawford's reference to the business records as non-testimonial statements has led other jurisdictions to hold that finding evidence to be a business record automatically excepts that document from Confrontation Clause scrutiny. See People v. Brown 9 Misc.3d 420, 801 N.Y.S.2d 709, 712-13 (N.Y.Sup.Ct.2005); Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701, 706 (2005); People v. Hinojos-Mendoza, No. 03CA0645, slip op. at 11-13, 2005 WL 2561391 (Colo.Ct.App. July 28, 2005). In People v. Durio, 7 Misc.3d 729, 794 N.Y.S.2d 863 (2005), the defendant objected to the admission of both the autopsy report of the victim and the testimony of an assistant medical examiner offered in place of the medical examiner who prepared the report. Durio, 794 N.Y.S.2d at 864. The court noted that Crawford had specifically exempted business records from scrutiny under the Confrontation Clause because they are outside the core class of testimonial statements that were meant to be excluded by the clause. Id. at 867. Interpreting Crawford, the court in Durio stated: "The essence of the business records hearsay exception contemplated in Crawford is that such records or statements are not testimonial in nature because they are prepared in the ordinary course of regularly conducted business and are `by their nature' not prepared for litigation." Id. An autopsy report can be considered a business record under New York law based on the rationale that "[r]ecords systematically made for the conduct of a business are inherently highly trustworthy because they are routine reflections of day-to-day operations and because the entrant's obligation is to have them truthful and accurate for purposes of *832 the conduct of the enterprise." Id. at 868 (citation omitted). The court in Durio gave the following reasoning for the admission of the autopsy report without violation of the Confrontation Clause:
The [Office of the Chief Medical Examiner ("OCME")] is not a law enforcement agency and is "by law, independent of and not subject to the control of the office of the prosecutor." OCME "is required simply to investigate unnatural deaths" and is required to perform autopsies in a number of situations only one of which is when the death is potentially the product of a homicidal act.... OCME is not authorized to gather evidence or determine the identity of a particular perpetrator and is not responsible for enforcing any criminal laws. OCME's independence distinguishes its autopsy reports from the blood test report held to be testimonial in People v[.] Rogers (8 A.D.3d 888, 891, 780 N.Y.S.2d 393 [3d Dept 2004]).
The autopsy report in this case was not manufactured for the benefit of the prosecution. Indeed, an autopsy is often conducted before a suspect is identified or even before a homicide is suspected. That it may be presented as evidence in a homicide trial does not mean that it was composed for that accusatory purpose or that its use by a prosecutor is the inevitable consequence of its composition.
Id. at 868-69 (some citations omitted). The Durio court also noted the practical implications of treating autopsy reports as inadmissible testimonial hearsay:
Years may pass between the performance of the autopsy and the apprehension of the perpetrator. This passage of time can easily lead to the unavailability of the examiner who prepared the autopsy report. Moreover, medical examiners who regularly perform hundreds of autopsies are unlikely to have any independent recollection of the autopsy at issue in a particular case and in testifying invariably rely entirely on the autopsy report. Unlike other forensic tests, an autopsy cannot be replicated by another pathologist. Certainly it would be against society's interests to permit the unavailability of the medical examiner who prepared the report to preclude the prosecution of a homicide case.
Id. at 869.
Other jurisdictions, such as those of Ohio, Alabama and Florida have held that classifying evidence that fits within a hearsay exception, such as business or public records, does not exempt such evidence from scrutiny under the Confrontation Clause pursuant to Crawford. In State v. Crager, 164 Ohio App.3d 816, 844 N.E.2d 390, 391 (2005), the defendant was convicted of aggravated assault and murder. He challenged the introduction of a DNA report when the analyst who prepared the report was not present to testify. The court found that the report was testimonial under Crawford because it was prepared as part of a police investigation and a reasonable person could conclude that it would be available for use at a later trial. Id. at 396. The court in Crager held that the statement in Crawford referring to the business records exception was purely dictum,[10] and "such a statement should [not] control over the [Supreme C]ourt's holding, which involves whether a statement is *833 testimonial or [non-testimonial]." Id. at 397. The court also stated that, while some evidence may fall within the general business-records exception, other business records should still be subject to analysis under Crawford and be excluded from evidence if they are in fact testimonial. Id. at 397.
Smith v. State, 898 So.2d 907 (Ala.Crim. App.2004), concerned a defendant's objection to the admission of an autopsy report and evidence admitted without the testimony of the doctor who performed the autopsy. Although the report was admissible as a business record, the court nevertheless held that it violated the Confrontation Clause because it allowed the State to prove cause of death, a crucial element in the case, without providing Smith with the opportunity to cross-examine the doctor who determined the cause of death. Id. at 915-16. The court noted that the testimony offered by the substitute medical examiner allowed the State to prove that the cause of death was asphyxiation, which was contrary to the defendant's claim that the victim died as a result of blows the defendant inflicted in self-defense. This error, however, was deemed harmless. The court observed that the autopsy report did not influence the jury's verdict, because the jury rejected the appellant's self-defense claim and returned a manslaughter verdict. Id. at 915 n. 4. See also Perkins v. State, 897 So.2d 457, 464 (Ala. Crim.App.2004) (finding that an autopsy report is non-testimonial in nature and, classified as a business record, it "bear[s] the earmark of reliability and probability or trustworthiness").
In Belvin v. State, No. 4D04-4235, 922 So.2d 1046, 1054 (Fla.App. 2006), the District Court of Appeal of Florida held that a breath test affidavit, prepared in connection with a breath test that was administered when the defendant was arrested for driving under the influence ("DUI"), was testimonial hearsay and, therefore, inadmissible because petitioner did not have an opportunity to cross-examine the breath test technician. In Florida, the legislature passed laws allowing the state to introduce at trial an affidavit containing the necessary evidentiary foundation for breath test results. Id. at 1048-49 (citations omitted). The court in Belvin held that, because breath test affidavits are generated by law enforcement for use at a later criminal trial or driver's license revocation proceeding, they fall within the third enumerated category of "testimonial" statements in Crawford, as "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 1050. Rejecting the argument that the breath test affidavit was a public record pursuant to statute, the court in Belvin determined that the statutory listing of breath test affidavits under the public records and reports exception to the hearsay rule does not control whether they are testimonial under Crawford. Id. at 1050-51. The court agreed with Belvin, holding that the portions of the breath test affidavit pertaining to the procedures followed by the technician in administering the breath test was precisely the type of evidence considered testimonial in Crawford. Id. at 1051.
We find the analysis of the court in Kansas v. Lackey, 280 Kan. 190, 120 P.3d 332 (2005), to be persuasive in resolving the issues in the instant case.[11] In Lackey, *834 the defendant was charged with premeditated first-degree murder and rape and convicted, in part, based upon DNA evidence. Lackey, 120 P.3d at 342. Dr. William Eckert, the medical examiner who performed the autopsy on the victim, died before Lackey's trial. Id. at 341. The State's expert, Dr. Erik Mitchell, reviewed Dr. Eckert's report, in conjunction with other evidence, and determined both the cause and time of death. Id. The defendant argued that the admission of Dr. Mitchell's expert opinion, based on the autopsy performed by Dr. Eckert, should not have been admitted as it violated the Confrontation Clause. Id. at 342. The autopsy report in Lackey contained "an external, internal, and microscopic description of the body and did not suggest a date of death." Id. at 345. Dr. Mitchell testified that the condition of the victim's body suggested a specific window of time for her death, and that her death was caused by strangulation. Id. at 346.
During Dr. Mitchell's testimony, the autopsy report was admitted over objection. The court reasoned that, even though the report was hearsay, it was not subjective, but was "a medical doctor's rendition of what he observe[d]." Id. Using the standards of Ohio v. Roberts, supra, the court admitted the autopsy report into evidence. Lackey argued that Dr. Eckert's statements in the autopsy report were inadmissible under Crawford because they were testimonial and the defense had no opportunity for cross-examination. The Kansas Supreme Court noted that resolution of this issue involves "multiple layers of analysis, including whether the autopsy report falls under a hearsay exception, whether it was testimonial under Crawford, and whether it could be used by the State's expert." Id. at 346.
In conducting its analysis, the court in Lackey first determined if the autopsy report fell under a hearsay exception; whether the report was testimonial under Crawford; and finally, whether the State's expert could use the report. Id. The court found, inter alia, that the autopsy report fell under the business and official records hearsay exceptions, but was still subject to scrutiny under Crawford. The court in Lackey compared the autopsy report to the categories of "testimonial statements" enumerated in Crawford and also looked to the cases of other jurisdictions for guidance. After noting cases from Alabama, Texas and New York, the court cited to the intermediate appellate court's decision in the instant case, stating that it was the most balanced in its approach:
Under such an approach, factual, routine, descriptive, and nonanalytical findings made in an autopsy report are [nontestimonial] and may be admitted without the testimony of the medical examiner. In contrast, contested opinions, speculations, and conclusions drawn from the objective findings in the report are testimonial and are subject to the Sixth Amendment right of cross-examination set forth in Crawford. Such testimonial opinions and conclusions should be redacted in the event that the medical examiner is unavailable. No denial of due process arises under this resolution because both parties are granted *835 access to the objective findings of the autopsy report and both parties may proceed to obtain their own expert testimony, opinions, and conclusions based upon the objective findings of the medical examiner performing the autopsy.
Id. at 351-55. Ultimately, the court in Lackey stated that the cause of death noted in the autopsy report, although testimonial in nature, was merely cumulative because it was an undisputed fact, and was already established through other opinion testimony. Id. at 352. The disputed fact in Lackey was the time of the victim's death. The court noted that the autopsy report did not contain a statement as to how long the victim had been deceased. Id. Because the disputed fact of time of death had already been established by evidence other than the autopsy report, the court found that any error in the admission of Dr. Eckert's statements as to the cause of death was harmless. Id.
The Instant Case
A. Does the Autopsy Report Fall Within a Hearsay Exception?
1. The Business and Public Records[12] Exceptions
As we have discussed supra, the Supreme Court indicated in Crawford that the hearsay exceptions, such as the business records exception, can exempt evidence from scrutiny under the Confrontation Clause. Under Maryland law, "[a] record of the Chief Medical Examiner, or any deputy medical examiner," such as an autopsy report, is considered "competent evidence in any court in this State," if the record is "made by the medical examiner or by anyone under the medical examiner's direct supervision or control." Md.Code (1982, 2005 Repl.Vol.), § 5-311(d)(2) of the Health General Article. Maryland Rule 5-803(b)(6)[13] provides that records of regularly conducted business activities are not excluded by the hearsay rule, even though the declarant is available as a witness:
Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation of acts, events, conditions, opinions, or diagnoses if (A) it was made at or near the time of the act, event, or condition, or the rendition of the diagnosis, (B) it was made by a person with knowledge or from information transmitted by a person with knowledge, (C) it was made and kept in the course of a regularly conducted business activity, and (D) the regular practice of that business was to make and keep the memorandum, report, record, or data compilation. A record of this kind may be excluded if the source of information or the method or circumstances of the preparation of the record indicate that the information in the record lacks trustworthiness. In this paragraph, "business" includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. *836 Md. Rule 5-803(b)(6). This exception "represent[s][the] ... recognition that if records are reliable enough for the running of a business (or a government agency), they are trustworthy enough to be admissible at trial, particularly when one considers the practical difficulty of proving the specific facts contained in many of these records." JOSEPH F. MURPHY, JR. MARYLAND EVIDENCE HANDBOOK, § 804 at 318 (3d ed. 1999). Justice Scalia addressed specifically the nature of statements contained in business records in Crawford:
"This is not to deny, as THE CHIEF JUSTICE notes, that "[t]here were always exceptions to the general rule of exclusion" of hearsay evidence.... But there is scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case. M[ost of the hearsay] exceptions covered statements that by their nature were not testimonial for example, business records or statements in furtherance of a conspiracy. We do not infer from these that the Framers thought exceptions would apply even to prior testimony."
Id. at 56, 124 S.Ct. at 1367. See Owens-Illinois, Inc. v. Armstrong, 326 Md. 107, 112-13, 604 A.2d 47, 49 (1992) (holding that a trial judge "has the discretion to exclude a document that meets the technical requirements of a business record when the objecting party persuades the judge that the document lacks the degree of reliability and trustworthiness that business records are ordinarily assumed to possess.") (footnote omitted); Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 604-605, 495 A.2d 348, 360 (1985) (applying the public records exception to the hearsay rule and differentiating between "fact" and "opinion"); see also Md.Code (1974 & 2002 Repl. Vol), § 10-204 of the Courts and Judicial Proceedings Article.
The intermediate appellate court found that any analysis pursuant to Md. Code (1974, 2002 Repl. Vol), § 10-204 of the Courts and Judicial Proceedings Article,[14] governing the admissibility of public records, would lead to the same result that the court had reached in applying the business records exception. Specifically, factual findings contained in a document deemed to be a public record may be received into evidence so long as the document is certified as being a true copy by the custodian of records. The Court of Special Appeals, in considering the admission of opinions, as distinguished from factual findings, noted our decision in Ellsworth, supra.[15]
*837 a. The Autopsy Report in the Instant Case Was Admissible as Both a Business and a Public Record
We find the intermediate appellate court's determination that the report was a business record, and therefore non-testimonial hearsay, to be correct. During the trial in the instant case, the trial judge questioned Dr. Ripple, the deputy medical examiner, about the procedure surrounding the making of the autopsy report:
[THE COURT]: The fact is that you have a medical report before you, correct?
[DR. RIPPLE]: Yes.
[THE COURT]: And when you are talking about protocol, all you know is what is on that report, correct?
[DR. RIPPLE]: I know what is on this report and what is in the file.
[THE COURT]: All right. And that report is required by law to be kept in the course of business, correct?
[DR. RIPPLE]: Yes, Your Honor.
[THE COURT]: So the entries on there are made in accord with the statute that requires the record to be kept, right?
[DR. RIPPLE]: Yes, Your Honor.
Dr. Ripple testified that the autopsy reports and file were records kept during the regularly conducted business activity of the Office of the Chief Medical Examiner and that the rough body drawings and notations taken during the autopsy that she referenced were materials that are regularly relied upon in the field in order to come to a conclusion or opinion.
The autopsy report in the instant case meets the definition of "record" provided by section 5-311(d)[16] of Health General Article, in addition to the definition of "record" provided in Md.Code (1974, 2002 Repl.Vol.), § 10-101(b) of the Courts and Judicial proceedings Article.[17] Here, we find no error in the trial judge's determination that the autopsy report was a business *838 record. There is no suggestion apparent from the record that the autopsy report is unreliable or untrustworthy. The purpose for which the autopsy report was prepared was, primarily, to satisfy the statutory requirements of the Health General Article.
B. Notwithstanding Its Designation as Both a Business and Public Record, is the Redacted Autopsy Report Testimonial?
In reviewing the enumerated formulations of the core class of "testimonial" statements, it is clear that Dr. Pestaner's autopsy report does not fit within the first two categories of the core class of "testimonial" statements determined by the Supreme Court in Crawford. It is neither ex parte in-court testimony or its functional equivalent, a custodial examination, prior testimony, nor an extrajudicial statement contained in formalized testimonial materials. We find that the only category under which the autopsy report might fall is that of "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." The information that was not redacted from the autopsy report, while it might eventually be used in a criminal trial, was not created for that express purpose, and was statutorily required to be determined by the medical examiner and placed into the report pursuant to § 5-311 of the Health General Article.[18] Unlike the interview in Snowden, the express purpose *839 for the preparation of the autopsy report was not for use in a criminal trial.[19] It is clear that there is a statutory duty to prepare such a report when a death has occurred in "any suspicious or unusual manner." Md.Code (1982, 2005 Repl.Vol.), § 5-309(b) of the Health General Article.
At the occurrence of a suspicious death, the medical examiner is required to make a determination as to cause of death and to generate an autopsy report. This determination is not always used at a later criminal trial. When the report is offered as evidence against the defendant at trial, in a criminal case, we conclude that an autopsy report is not per se "testimonial" in light of Crawford. The trial court must determine whether the report contains testimonial or non-testimonial hearsay statements. The testimonial statements may not be admitted against the defendant at trial, unless the declarant is unavailable and there was a prior opportunity for cross-examination.
1. Contested Conclusions of Opinions vs. Non-Analytical Findings That Are Objectively Ascertained
Petitioner contends Dr. Pestaner's remaining statements in the autopsy report were contested conclusions, rather than non-analytical findings, and thus were testimonial in nature, per Crawford, because they proved an element of the crime and should not have been admitted without allowing petitioner to confront Dr. Pestaner. We disagree.
Although Dr. Pestaner was not present to testify, we conclude that the statements included in the autopsy report, as admitted, were findings as to the physical condition of Ms. Ebberts's body. They were non-analytical findings that we do not view to be part of the core class of testimonial statements that the Confrontation Clause *840 is intended to prevent. The "findings" included in the autopsy report to which petitioner objects include:[20] (1) that there was a superficial hemorrhage on the gumline of Ms. Ebberts, (2) that there were fresh bruises on Ms. Ebberts's arms, and (3) that Ms. Ebberts's corneas were cloudy. Petitioner argues whether something is cloudy or not is a matter of interpretation. Rollins also argues that he should have had the opportunity to cross-examine Dr. Pestaner to determine whether the corneal cloudiness noted in the autopsy report could have occurred during the refrigeration of Ms. Ebberts's body before the autopsy was performed. At oral argument in this Court, defense counsel stressed the subjectivity of this classification. The autopsy report simply stated, "The corneae were cloudy." The defense expert, Dr. James Frost, medical examiner for the State of Delaware, testified that he observed "the very slightest amount of corneal clouding which is a post-mortem change." Dr. Frost went on to opine that if Ms. Ebberts had been dead for three days and her eyes had been open, there would be extensive corneal clouding.
The Court of Special Appeals rejected Rollins's contention that characterizations in the autopsy report such as "chronic," "acute," and "cloudy" are matters of interpretation that, accordingly, constitute opinions. The court characterized those terms as "descriptive," and stated that such terms "may be objectively quantified; thus, they are not subject to significantly different interpretations by the witnesses. More importantly, the descriptive terms in question only tangentially touch upon the matters in dispute regarding corpus delecti or criminal agency." Rollins, supra, 161 Md.App. at 79, 866 A.2d at 952. The intermediate appellate court reviewed the report regarding the eleven major systems of Ms. Ebberts's body[21] and concluded that the findings were "virtually all descriptive, *841 rather than analytical." Id. (Footnote omitted.) The Court of Special Appeals ultimately held:
We hold that the findings in an autopsy report of the physical condition of a decedent, which are routine, descriptive and not analytical, which are objectively ascertained and generally reliable and enjoy a generic indicium of reliability, may be received into evidence without the testimony of the examiner. Where, however, contested conclusions or opinions in an autopsy report are central to the determination of corpus delecti or criminal agency and are offered into evidence, they serve the same function as testimony and trigger the Sixth Amendment right of confrontation.
Id. at 82, 866 A.2d at 954.
The autopsy report in the instant case was redacted to omit any information that could be construed as an "opinion." In its discussion of hearsay exceptions in the context of the Confrontation Clause in Crawford, the Supreme Court referred to "exceptions that covered statements that by their nature were not testimonial." The redaction of the autopsy report places the report into the category of non-testimonial hearsay as contemplated by the Supreme Court. We are not convinced that Dr. Pestaner's specific findings that remained in the autopsy report were of the type that amounted to "contested conclusions," and the defense has presented no case law that supports that contention. The Court of Special Appeals rejected Rollins's contention that, absent the testimony of the person who prepared an autopsy report, the distinction between fact and opinion in an autopsy report no longer plays a role in determining whether the admission of that report violates the accused's right to confrontation. Rollins, 161 Md.App. at 76, 866 A.2d at 950 (footnote omitted). In doing so, the court stated: "Contrary to [Rollins's] position, `fact' as defined in [Ward v. State, 76 Md.App. 654, 547 A.2d 1111 (1988)], continues to be squarely within the firmly fixed exceptions to the hearsay rule. The objectively obtained findings of the physical condition of the victim, not subject to interpretation, constitute the `facts.'" Id.
Although the Ward case is distinguishable in that it involved psychiatric evaluations,[22] the case is illustrative. We noted *842 in Ward that "the fact that a hospital record may be generally admissible as a business record, against either a hearsay or confrontation objection, does not necessarily mean that each and every entry in it is so admissible." Id. at 659-60, 547 A.2d at 1114. The Court of Special Appeals relied upon Gregory v. State, 40 Md.App. 297, 391 A.2d 437 (1978), quoted with approval in State v. Garlick, 313 Md. 209, 220-21, 545 A.2d 27, 32 (1988):
"The mere fact that a document is part of a hospital record made in the ordinary course of the hospital's business, and may therefore be admissible under the hearsay rule, does not ipso facto make its admission comply with the confrontation requirement....
We have here not the routine record of a person's birth, or death, or body temperature, nor any other similar statement of fact or condition objectively ascertained, generally reliable and normally undisputed, and free from any motive to record falsely. We are dealing with the opinions of supposed expert witnesses, who, in this document, are giving testimony not only as to appellant's mental condition, but, more importantly, as to whether or not he is criminally responsible."
Id. at 660, 547 A.2d at 1114 (quoting Gregory, supra, 40 Md.App. at 325-26, 391 A.2d at 454). As noted in Ward, the intermediate appellate court in Gregory focused on the recognition that psychiatry is not an exact science and that opinions as to mental condition vary widely. Id. at 660-61, 547 A.2d at 1114. The court in Ward noted that the issue of a criminal defendant's mental condition was highly contentious and
[t]his kind of diagnosis does not lend itself to objective confirmation. It is not something that can be validated by microscopic, chemical, or other precise scientific examination but remains primarily a matter of opinion based principally upon a trained professional's evaluation of the subject's behavior and responses to psychological testing. Unlike the kinds of medical facts noted in Gregory or medical conclusions having a more objective foundation, such as blood tests, this kind of opinion, especially where contested, is not so cloaked with a substantial indicium of reliability as to escape the need for confrontation.
Id. at 661, 547 A.2d at 1114.
In the instant case, the disputed statements in the autopsy report made by Dr. Pestaner focused on conditions that could be physically observed, rather than a mental diagnosis, such as the one at issue in Ward, which was highly subjective in nature. The observations of Dr. Pestaner are more in line with the findings of medical examiners that constitute non-analytical findings that are objectively ascertained i.e., the determination and description of the weight, characteristics and description of the deceased.
Petitioner objected to the fact that Sergeant Rose Brady, a detective of the Baltimore County Homicide Division, sent Dr. Pestaner a facsimile transmission.[23] In addition, petitioner objected to *843 several objective findings made by Dr. Pestaner contained in the autopsy report.[24]
*844 One of the objective findings to which petitioner objected was the cloudiness of Ms. Ebberts's corneae. While Dr. Pestaner noted only that the corneae were cloudy, the defense did not establish that this classification was outside the normal realm of determinations of the medical examiner, nor did it demonstrate that it would have been more appropriate for Dr. Pestaner to describe the corneae in incremental degrees of cloudiness. The defense was able to present its own expert witness who, upon viewing the photos of Ms. Ebberts's eyes, came to a different conclusion about the degree of cloudiness in the corneae. Findings, such as those made by Dr. Pestaner with regard to the cloudiness of the corneae, were not only observable by an experienced medical examiner,[25] but in this case were corroborated by photographs of the victim's eyes. In fact, Dr. Frost, medical expert for the defense, used the same photos to view Ms. Ebberts's corneae and make his own determination that Ms. Ebberts's corneae were cloudy, but only slightly so.
The nature of Dr. Pestaner's determination was that of a State required and regulated, autopsy examination in which Dr. Pestaner was charged by law with examining the victim and determining the manner and cause of death.[26] As Chief Medical Examiner, Dr. Pestaner's experience in making these types of assessments was undoubtedly sufficient. The determination of corneal cloudiness made by Dr. Pestaner was descriptive of the perceived condition of the victim's eyes at the time reported. Moreover, our review of the record indicates that the trial judge was fairly thorough and meticulous in his monitoring of the testimony of Dr. Ripple to prevent contested conclusions and opinions from being admitted, and in the admission of the redacted autopsy report and related documents, and at all times observed Rollins's right to confrontation. Dr. Pestaner's determinations generally were routine, descriptive, and generally reliable, and as such, was not testimonial. This type of information was properly admitted into evidence through the autopsy report without Dr. Pestaner's testimony.
2. The Autopsy Report, as Redacted, Was Not Testimonial; Autopsy Reports Are Not Per Se Testimonial
The opinion statements in the autopsy report were redacted. We reject petitioner's contention that an autopsy report is per se testimonial pursuant to Crawford, and should never be admitted into evidence without the testimony of the author of the report. First, we note that Maryland common law supports the contention that factual findings as to the physical condition of the victim's body, as described in an autopsy report, may be admitted without the testimony of the person who prepared the report without violating the Confrontation Clause. See Bowers v. State, 298 Md. 115, 136-37, 468 A.2d 101, 112 (1983).[27]
*845 Secondly, we note the impractical implications to classifying autopsy reports as inadmissible testimonial hearsay because the person who prepared them is not present to testify. As noted in Durio, years may pass between the performance of the autopsy and the apprehension of the perpetrator that can easily lead to the unavailability of the examiner who prepared the autopsy report. At oral argument, in this Court, defense counsel was given a hypothetical about a situation in which the maker of an autopsy report dies before the date of trial. Defense counsel stated that, even in that situation, the maker of the autopsy report would still be required to meet Crawford standards, and in the maker's absence, the State would be required to prove the victim's death in another manner. This is unacceptable in practical application and is not supported by Crawford.
In the present case, the Circuit Court had before it an autopsy report prepared by the Maryland Medical Examiner's Office that is otherwise admissible as a business record or as a public record pursuant to Md. Rule 5-803(b)(6) and Md.Code (1974 & 2002 Repl. Vol), § 10-204 of the Courts and Judicial Proceedings Article. As we have already discussed, the statutorily required information contained in the autopsy report, as a business record, was not testimonial in nature, and therefore, did not violate Rollins's right to confrontation. We note the Supreme Court's statement in Crawford: "Where [non-testimonial] hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law ... as would an approach that exempted such statements from Confrontation Clause scrutiny altogether." Id. at 68, 124 S.Ct. at 1374. Here, petitioner has failed to demonstrate that the remaining contested statements in the redacted autopsy report are testimonial and, thus, subject to scrutiny under the Confrontation Clause.
Although an autopsy report may be classified as both a business and a public record, it is the contents of the autopsy report that must be scrutinized in order to determine the propriety of its admission into evidence without the testimony of its preparer. If the autopsy report contains only findings about the physical condition of the decedent that may be fairly characterized as routine, descriptive and not analytical, *846 and those findings are generally reliable and are afforded an indicum of reliability, the report may be admitted into evidence without the testimony of its preparer, and without violating the Confrontation Clause. If the autopsy report contains statements which can be categorized as contested opinions or conclusions, or are central to the determination of the defendant's guilt, they are testimonial and trigger the protections of the Confrontation Clause, requiring both the unavailability of the witness and prior opportunity for cross-examination.
II. If preserved, did the trial court err in allowing the medical examiner to render an expert opinion regarding the cause and time of death of Ms. Ebberts?
Rollins argues that Dr. Ripple should not have been permitted to testify as to the cause and time of Ms. Ebberts's death. Primarily, Rollins contends that, pursuant to Md. Rule 5-702, Dr. Ripple's testimony based upon Ms. Ebberts's file, lacked a sufficient factual basis. As to the time and cause of Ms. Ebberts's death, Rollins disputes Dr. Ripple's reliance on some contents of the medical examiner's file with regard to Ms. Ebberts and her review of all information surrounding the death, including information about the police investigation, in order to render her opinion. Rollins alleges that Dr. Ripple was allowed to "render an expert opinion as to petitioner's guilt" and that her testimony lacked the required factual basis per Md. Rule 5-702.
Preliminarily, we must address the State's contention, contained in its cross-petition, that Rollins did not preserve his claim that the trial court improperly allowed Dr. Ripple's opinion that Ms. Ebberts died "during the robbery." Defense counsel's objections to multiple aspects of Dr. Ripple's testimony, specifically with regard to Ms. Ebberts's cause of death, were clear upon review of the record. The defense objected to the questions both before and after the disputed statement,[28] but did not object to the statement itself. Objections to opinion testimony must be made in a timely manner or else they are considered waived and not preserved for appellate review. Md. Rule 4-323(a) ("An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived."). Because defense counsel did not object to, or move to strike, the unresponsive statement, i.e., that Ms. Ebberts died "during the robbery," we hold that petitioner waived any objection as to the time of death testimony. Thus, the remaining contention related solely to the cause of death and the factual basis to support Dr. Ripple's conclusions as to cause of death.
Expert testimony is governed by Md. Rule 5-702 which provides:
Expert testimony may be admitted, in the form of an opinion or otherwise, if *847 the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.
We look to Md. Rule 5-703 to determine the bases of expert opinion testimony:
(a) In General. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
(b) Disclosure to Jury. If determined to be trustworthy, necessary to illuminate testimony, and unprivileged, facts or data reasonably relied upon by an expert pursuant to section (a) may, in the discretion of the court, be disclosed to the jury even if those facts and data are not admissible in evidence. Upon request, the court shall instruct the jury to use those facts and data only for the purpose of evaluating the validity and probative value of the expert's opinion or inference.
(c) Right to Challenge Expert. This Rule does not limit the right of an opposing party to cross-examine an expert witness or to test the basis of the expert's opinion or inference.
We set forth the standard of review for the qualification of experts in I.W. Berman Properties v. Porter Bros. Inc., 276 Md. 1, 344 A.2d 65 (1975):
The determination by the trial court of `the experiential qualifications of a witness will only be disturbed on appeal if there has been a clear showing of abuse of the trial court's discretion.' Continental Ins. Co. v. Kouwenhoven, 242 Md. 115, 126, 218 A.2d 11, 17 (1966), citing Turner v. State Roads Comm'n., 213 Md. 428, 433, 132 A.2d 455, 457 (1957). See also 2 J. WIGMORE, EVIDENCE, s 561, at 643 (3d ed. 1940).
* * * *
[T]he determination of whether a witness is qualified as an expert witness is generally within the discretion of the court, and will not be overturned unless his discretion has been manifestly abused to the prejudice of the complaining party. M.A. Realty Co. v. State Roads Commission, 247 Md. 522, 233 A.2d 793 (1967); State Roads Commission v. Creswell, 235 Md. 220, 201 A.2d 328 (1964); Turner v. State Roads Commission, 213 Md. 428, 132 A.2d 455 (1957).
* * * *
In exercising the wide discretion vested in the trial courts concerning the admissibility of expert testimony, a critical test is `whether the expert's opinion will aid the trier of fact.' Consolidated Mech. Contrs., Inc. v. Ball, 263 Md. 328, 338, 283 A.2d 154, 159 (1971)[.]
Id. at 12-14, 344 A.2d at 73-74 (some internal citations omitted). When determining whether an expert's testimony will assist the trier of fact, the court is required to determine "(1) whether the witness is qualified as an expert by knowledge, skill, experience, training or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony." Buxton v. Buxton, 363 Md. 634, *848 650, 770 A.2d 152, 161 (2001) (citation omitted).
Dr. Ripple was certified by the court, without objection, in the field of forensic pathology. She was asked about Ms. Ebberts and testified: "To a reasonable degree of medical certainty Irene Ebberts died of asphyxia during the robbery and the physical findings indicate smothering." The defense did not object to this statement when it was made nor did it ask to have the statement stricken from the record. As stated supra, petitioner waived his objection as to time of death testimony. When asked what elements she based her opinion upon, Dr. Ripple stated:
[DR. RIPPLE:] I will start by her physical findings, her natural disease processes. She is a debilitated, sick individual. So you have to look at her natural disease processes and be able to exclude them as a cause of death. So that involves medical records and then the physical findings that I went through with her pneumonia, her emphysema and her heart disease. There is a difference between dying with disease and dying of disease. So with regard to the natural disease processes going on, that is the first thing.
The second thing would be the investigation findings at the scene. You can't work in a vacuum. You need all those pieces. So the investigative findings indicate that foul play had occurred, that foul play being the robbery and ransacking of the house and, in addition, there are witnesses am I now allowed to say that now?
* * * *
[THE STATE]: All right. You indicated that part of your function is to look at or eliminate those diseases [Ms. Ebberts's heart and lung disease] as a cause of death. What do you base that upon or what is your conclusion and what do you base that upon?
[DR. RIPPLE]: I base that on the severity of the findings of her disease process as well as other intervening circumstances through investigation and other physical findings of injury at all.
[THE STATE]: ... So you have indicated then that that finding has to go in conjunction with the other findings, is that what you are saying?
[DR. RIPPLE]: Absolutely. You have to take it all together.
[THE STATE]: All right. So let's base it upon, if you can, what information you have related so far, first off, the information you said that was provided by the police and then also your investigator's information and, I apologize, if you can pick it up back where you were.
[DR. RIPPLE]: I was at the investigation point but I believe I had stated the findings of our investigator, of the ransacking and the robbery, the police reports indicating ransacking and robbery and some witness statements in the police reports; also the physical findings at autopsy. There was a hemorrhage in her mouth where it shouldn't be, indicating pressure on the mouth, hemorrhage, bleeding. That is indicative of smothering, pressure to the mouth in some manner from an external force, be it a hand, be it a pillow, something pushing on her mouth. And, in addition, so that would be the smothering part.
In addition, there are other injuries on her that you can't ignore also. They might not be part of the exact smothering but it is part of the injury that you have to take into consideration. Of course smothering is holding something over the mouth. Just because I have bruises in my arms doesn't mean that I'm smothered. But she does have bruises on her arms as I stated. So she has additional injuries.
*849 Rollins's primary objection to Dr. Ripple's testimony stems from her reliance on statements from certain witnesses contained in the medical examiner's file as part of the basis for her opinion that Ms. Ebberts was smothered. Rollins contends that this reliance on statements which constitute hearsay provided Dr. Ripple with an insufficient factual basis for her opinion. The Medical Examiner's Investigation Report contained the following, inter alia, in the comments section:
"Circumstances: Per Det. Childs. A week or so ago another lady in the decedent's neighborhood wrote a letter saying that a local handyman had said he was going to break in to the decedent's house, smother her and steal her money."
The Baltimore County Police Department's Investigative Correspondence form also included a statement that read: "A nephew related that a former yard worker made statements months ago that he was going to `smother the victim and steal her money.' This is why Rollins is listed as a `possible suspect.'"
In discussing the medical examiner's file, Dr. Ripple testified that it included numerous documents supplied by the Baltimore County Police Department, including the police report and a statement made by Rollins. Also included was the Statement of Charges and a summary of conversations that Det. Childs had with witnesses. When asked about the importance of the statements of witnesses to both her own and Dr. Pestaner's opinion, the following exchange occurred:
[DEFENSE COUNSEL]: And it is true, is it not, that Dr. Pestaner bases his conclusions in this case in part on the statements of these various individuals?
[DR. RIPPLE]: That is one of the pieces of the puzzle. That is one part of the investigation that was used to reach our conclusions.
[DEFENSE COUNSEL]: And, in fact, that is part that is part of the basis for your conclusion in this case?
[DR. RIPPLE]: That is one of the pieces. There are many other things, many other areas of the investigation that are involved. But that is one of the pieces.
[DEFENSE COUNSEL]: One of the pieces. And, in fact, let me ask you this, could you reach without this information that was provided by the police that is in your file let me ask you this. You are basically assuming that the information in these statements is in fact true, is that right?
[DR. RIPPLE]: Yes.
* * * *
[DEFENSE COUNSEL]: Let me ask you, to what extent are your findings in this case based on that information?
[DR. RIPPLE]: Like I said, it is one piece of the puzzle. Investigation scene showed a house that had been robbed, in extreme disarray. That is a large piece of the puzzle. Our autopsy findings are another large piece of the puzzle; and this is another piece.
[DEFENSE COUNSEL]: Okay, if you do not consider this last piece of the puzzle, can you make any conclusions regarding cause and manner of death in this case?
[DR. RIPPLE]: Yes.
[DEFENSE COUNSEL]: Based on what?
[DR. RIPPLE]: Based on the fact that we have an elderly individual who is debilitated in a house through investigation that shows that foul play has occurred, meaning robbery, ransacking, et cetera. And then we also have the hemorrages in the arms and the hemmorage in the mouth. So to a reasonable degree of medical certainty this woman *850 was asphyxiated during a robbery and the physical findings indicate smothering.
[DEFENSE COUNSEL]: But based on the physical findings themselves, would you reach that same conclusion?
[DR. RIPPLE]: We never make cause and manner of death determinations on physical findings alone. It is part of our job to consider everything.
[DEFENSE COUNSEL]: I understand that. But my question is could you make that determination based on the physical findings alone?
[DR. RIPPLE]: No. Because I just stated we have to have investigation involved also.
Dr. Ripple testified that, when investigating a death, the medical examiner's office relies on law enforcement to provide it with information surrounding the history of the death, which requires obtaining "an account of the events leading up to or surrounding the death of the individual from law enforcement, relatives, witnesses [and] other physicians that took care of the patient." During trial, Dr. Ripple was asked what could be included in the medical examiner's file and she included autopsy reports and photographs with toxicology, rough body diagrams, all written findings associated with the case, ancillary studies, a flow sheet that shows communication with certain individuals with regard to the case, medical records, police reports of various types, photos, and sometimes witness statements. Dr. Ripple explained her findings and stated that she based her conclusions on "the investigative findings of our investigator and the police, the physical findings of the autopsy, including microscopic sections and a review of her health records." The investigative findings of the police did include some witness statements in the police report.
We begin our analysis by revisiting one of the issues we decided in Ellsworth, supra. Ms. Ellsworth offered testimony from Dr. Stephan Spivak, a professor at the University of Maryland, concerning the contents of the reports at issue to illustrate the basis of her expert's opinion testimony. Id. at 602, 495 A.2d at 359. Dr. Spivak testified that Ms. Ellsworth's nightgown was defective and unreasonably dangerous due to its flammability and that the Federal standard was insufficient in its protection. Id. To support his opinion, Dr. Spivak sought to review data taken from the reports, averring that the data in the reports was recognized as reliable and regularly used by members in his field. Id. at 602-603, 495 A.2d at 359. The trial judge ruled that any testimony regarding the data contained in the reports was inadmissible as hearsay. Id. at 603, 495 A.2d at 359.
We held that, while the proffered evidence did meet the definition of hearsay, it could be admitted "for the limited purpose of explaining the basis for the expert's opinion." Id. In support of our holding we noted our decision in Attorney Grievance Comm'n v. Nothstein, 300 Md. 667, 679, 480 A.2d 807 (1984) (quoting D. BINDER, HEARSAY HANDBOOK § 1.01, at 451 (2d ed. 1983)):
The federal courts and a majority of state courts permit an expert witness to express an opinion that is based, in part, on hearsay of a kind that is customarily relied on by experts in that particular business, profession, or occupation. However, the hearsay itself is not admissible as substantive evidence. It is only admissible to explain the basis of the expert's opinion. In other words, the trier of fact is allowed to give credence to an expert's opinion that is based on the assumption that certain hearsay is true, but is not allowed to give credence to the hearsay itself.
*851 This rule has long been accepted in Maryland. Consol. Mech. Contractors v. Ball, 263 Md. 328, 283 A.2d 154 (1971); Air Lift, Ltd. v. Bd. of Co. Comm'rs, 262 Md. 368, 278 A.2d 244 (1971); Baltimore & O.R.R. v. Hammond, 128 Md. 237, 97 A. 532 (1916); Baltimore City v. Hurlock, 113 Md. 674, 78 A. 558 (1910).
Id. We concluded that Ms. Ellsworth was entitled to elicit from her expert the reasons for his opinion and, because a proper foundation for the introduction of statistical information contained in the reports was presented, the evidence should have been admitted. Id.
In the instant case, we disagree with Rollins's contention that Dr. Ripple relied upon improper information to render her expert opinion. Dr. Ripple's consideration of the medical examiner's file in its entirety was proper. She testified that a review of all aspects of the file, including the criminal investigation, was necessary to form her opinion and was the accepted practice in her field. This was not disputed by the defense. As we have reiterated, Maryland law permits experts to express an opinion based partly upon hearsay evidence if the hearsay is of a type typically relied upon in their field. See Kent Vill. Assoc. Joint Venture v. Smith, 104 Md. App. 507, 524, 657 A.2d 330, 338 (1995) (holding that an expert in rehabilitation counseling could rely upon medical personnel, social workers and psychologists "in order to get the full picture" to determine the future health care expenses of an injured child, because such reliance was customary in her field). Dr. Ripple testified that it was the common practice in her field, and one of her duties, to review the medical examiner's file in its entirety, including communications with the police and statements of witnesses. These aspects of the case were all considered by Dr. Ripple to be "pieces of the puzzle" that she was required to assess before coming to a conclusion. This assessment includes review of all facts surrounding the victim's death. Section 5-311(a)(2)(iv) of the Health General Article provides that each of the deputy medical examiners shall keep complete records on each medical examiner's case and that these records shall include, among other things, "all other available information about the death." Section 5-309(c) of the Health General Article also provides that, upon a determination by the sheriff or police that a death under one of the enumerated circumstances in § 5-309(a)(1) has occurred, "[t]he medical examiner or the investigator shall investigate fully the essential facts concerning the medical cause of death." Even if the witness statements were hearsay, the statements were the type of hearsay regularly relied upon by medical examiners in the formation of their conclusions.
Rollins argues that Dr. Ripple was allowed to render an expert opinion as to petitioner's guilt and that Dr. Ripple determined credibility and resolved conflicting facts based on documents and witness statements given to the police. We note that this Court rejected an argument similar to petitioner's in Sippio v. State, 350 Md. 633, 714 A.2d 864 (1998), where Sippio contested the admission of the testimony of the medical examiner, Dr. Smialek, that the victim's cause of death was a gunshot wound to the head, and the manner of death was homicide. In determining the propriety of the admission of Dr. Smialek's testimony, we noted that Dr. Smialek had been qualified as en expert in the field in which he was testifying, the subject matter about which Dr. Smialek testified was appropriate since he had performed the autopsy[29] and conducted the investigation, *852 and that his testimony aided the trier of fact. Sippio, 350 Md. at 649-51, 714 A.2d at 872-74. In rejecting Sippio's argument that Dr. Smialek's testimony was inadmissible because it resolved a conflict in evidence and because it related to the credibility of a witness, we noted:
Dr. Smialek's testimony as to manner of death did not resolve a conflict in evidence. Expert opinion testimony, like any opinion testimony, is designed to introduce, bolster, or place doubt on evidence properly admitted before the trial court. The fact that Petitioner and Respondent have different theories of [the victim's] death in no way precludes either party from introducing evidence that tends to support or place doubt on previously admitted evidence. Similarly, Dr. Smialek's testimony did not resolve a question of Sippio's credibility merely because Sippio denied the shooting was deliberate. Had Dr. Smialek testified that Sippio's credibility was questionable based on statements Sippio made before or during trial, an exclusion of such testimony might have been proper. Dr. Smialek, however, did not opine on Sippio's credibility.
Id. at 652-53, 714 A.2d at 874. In the instant case, Dr. Ripple did not opine on Rollins's guilt, she opined, in her expert opinion, that Ms. Ebberts died of smothering and that the time of death of the victim coincided with the time of the robbery.[30]
We also point out that the hearsay at issue in the medical examiner's file was otherwise admissible as the declarant, Debra Dehne, testified at trial regarding her statements and was subject to cross-examination. A search of the record suggests that the statements contained in the police and medical examiner's investigation reports constitute the hearsay with which the defense is concerned. Ms. Dehne was a former neighbor of Ms. Ebberts and testified at Rollins's trial. Ms. Dehne testified that, in the Spring of 2001, Rollins told her that he "could kill" Ms. Ebberts and then went on to explain how he would do so by "tak[ing] a pillow [and] put[ting] it over [Ms. Ebberts's] head." Ms. Dehne wrote down the details of this statement and gave the information to the police when they were called to Ms. Ebberts's home. Rollins had been staying in Ms. Dehne's home in the Spring of 2001. According to Ms. Dehne's testimony, Rollins originally came to her home because he was acquainted with her nephew, Tony Spence.[31] Ms. Dehne testified regarding the letter during trial, was cross-examined *853 on its contents, and authenticated the document. Clearly, Rollins was able to confront Ms. Dehne regarding her statements.
It has been a long-standing principle in Maryland law that "the opinion of an expert witness, the grounds upon which it has been formed, and the weight to be accorded to it are all matters for the consideration of the jury." Marshall v. Sellers, 188 Md. 508, 518, 53 A.2d 5, 10 (1947) (citing Davis v. State, 38 Md. 15, 41 (1873)). The medical expert witnesses provided by the defense in the present case reviewed the same materials as Dr. Ripple and used those materials upon which to base their opinion, and all experts were cross-examined. See Maryland v. Craig, 497 U.S. 836, 846, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666 (1990) (citing California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970) ("Cross-examination is the `greatest legal engine ever invented for the discovery of truth.'")). All experts, including Dr. Ripple, were subject to cross-examination about their findings; once the experts' opinions were admitted, it was within the province of the trier of fact to determine which expert should be believed.
We reject petitioner's theory that the admission of an autopsy report, without the testimony of its preparer, is a per se violation of the Confrontation Clause. Bowers makes it clear that an autopsy report may be admitted without the testimony of the physician who prepared it. An autopsy report, however, should be supplemented at trial with expert testimony in regard to the "manner" of death. See Joseph F. Murphy, Jr., Maryland Evidence Handbook § 804(D)(1) at 328 (3d ed. 1999) (citing Benjamin v. Woodring, 268 Md. 593, 608-609, 303 A.2d 779, 788 (1973)). Our decisions in Benjamin v. Woodring and in Sippio, supra, support the proposition that, while the determination of manner of death is clearly within the purview of the medical examiner, the manner of death portion of an autopsy report should be supplemented with expert testimony at trial. In the instant case, consistent with the requirements of Maryland law, Dr. Ripple's testimony supplemented the autopsy report both as to manner and cause of death.
The autopsy report in the instant case, as redacted, contained non-testimonial hearsay statements in nature that were admissible under either the business or public records exceptions to the hearsay rule. Although the autopsy report fell within both the business and a public record exceptions, the trial court was correct to review the contents of the autopsy report to determine the propriety of its admission into evidence without the testimony of its preparer. As redacted, the autopsy report contained merely findings about Ms. Ebberts's physical condition that could be characterized as routine, descriptive, and non-analytical. Accordingly, we find no error in the admission of the report into evidence without the testimony of Dr. Pestaner and find no violation of petitioner's rights pursuant to the Confrontation Clause.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY THE PETITIONER.
NOTES
[1] The Confrontation Clause of the Sixth Amendment of the United States Constitution, and Article 21 of the Maryland Declaration of Rights, provide that the accused in all criminal prosecutions shall enjoy the right "to be confronted with the witnesses against him." U.S. CONST. amend. VI.; Md. Const., Art. 21.
[2] Petitioner's original questions presented were:
1. Is an autopsy report testimonial in nature as that term has been defined in both Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and this Court's opinion in State v. Snowden, 385 Md. 64, 867 A.2d 314 (2005), such that its admission at trial without the testimony of the medical examiner who prepared the report is a violation of a defendant's Sixth Amendment right to confrontation?
2. Whether the trial court erred in allowing a medical examiner (1) to rely on "findings" contained in an autopsy report prepared by a medical examiner who was not called to testify at trial, and (2) to render an expert opinion that the victim "died of asphyxia during the robbery" where such an opinion lacked an adequate factual basis and was derived from information unrelated to medical findings?
[3] As the intermediate appellate court surmised, the redacted autopsy report is absent from the record. It would appear that the portions of the autopsy report that were italicized in the intermediate appellate court's opinion in the instant case indicate the areas that were redacted prior to the report's admission into evidence. Apparently, in the process of publishing its opinion and identifying the redacted portions, by italicizing them, the intermediate appellate court neglected to italicize one reference to "smothering." See id. at 43 n. 1, 866 A.2d at 931 n. 1. The court's omission is not significant because, based upon our review of the record, it is clear that the Circuit Court specified the removal of all references to "smothering" in the autopsy report. We are unable to find any reference in the record that limits the redaction of the term, "smothering" to only certain parts of the autopsy report. Moreover, petitioner did not contend in the trial court, nor does he contend before us, that the court erred in failing to redact all references of smothering from the report before it was given to the jury. Petitioner's argument was and is that the report was not admissible into evidence without the presence of Dr. Pestaner.
At the motions hearing held on March 27, 2003, the Circuit Court gave a copy of the autopsy report to defense counsel and instructed counsel to circle the parts of the report that constituted an opinion, and to which the defense objected. The State reviewed the items that the defense had circled, and the court then addressed each item determining whether the item should be redacted. The trial court noted the following:
[THE COURT]: All right. Pathological diagnosis. Smothering. Out. Hypertensive and [atherosclerotic cardiovascular] disease. Out. That is an opinion.
* * * *
[THE COURT]: [Speaking about the look of the autopsy report post-redaction] I rather suspect that you are going to be left with something that is redacted that just says that smothering, hypertensive and [atherosclerotic cardiovascular] disease and homicide.
[THE STATE]: That those would be removed?
[THE COURT]: In my opinion those would be the only thing[s] removed unless she says something else that surprises me that some of these other things are matters of opinion, which I don't think that they are.
[THE STATE]: Very well.
(Emphasis added.) A search of all of the transcripts in the instant case provided evidence, through the statements of the trial court, and through multiple references to redactions during testimony, that all opinions as to the cause and manner of death were redacted from the autopsy report. See Rollins, supra, 161 Md.App. at 76-77 n. 11, 866 A.2d at 951-52 n. 11.
[4] With regard to the appearance of Dr. Pestaner at trial, there was some confusion: Defense counsel noted that he was informed that Dr. Pestaner no longer worked at the Medical Examiner's Office and that he had been told that it was the policy of the Medical Examiner's Office to "try and replace somebody else to do the medical testimony in this case." The trial judge urged defense counsel to subpoena Dr. Pestaner, at which time the State indicated that, although they were not certain if they would do so, they might submit the autopsy report itself without Dr. Pestaner. It was eventually concluded that Dr. Pestaner had left the State of Maryland and was a practicing coroner in the State of California at the time of trial.
[5] Rollins's constitutional argument was posed as follows:
Because the medical examiner's opinion is based upon hearsay statements from witnesses who may or may not testify, the admission of such testimony would violate the defendant's rights under the Sixth and Fourteenth Amendments to the Constitution of the United States to confront and cross-examine witnesses, his right to trial by jury to determine the witness credibility issues under the Sixth and Fourteenth Amendments to the Constitution of the United States, and his right to Due Process of law under the Fifth and Fourteenth Amendments to the Constitution of the United States.
Rollins, 161 Md.App. at 44, 866 A.2d at 932.
[6] The intermediate appellate court's interpretation of Crawford in the instant case led it to conclude that "the opinions/conclusions in the autopsy report in the instant case fall squarely within the `business records' exception of the hearsay rule and is, therefore, technically, non-testimonial hearsay." Rollins, 161 Md.App. at 66, 866 A.2d at 945 (footnote omitted). The Court of Special Appeals classified the autopsy report as a business record pursuant to Md.Code, Health General Article, § 5-311, and as such held that "the unavailability of the witness and prior opportunity for cross-examination required in [a] case of `testimonial' hearsay are not rights, under Crawford, which attach automatically to non-testimonial hearsay." Id. at 66-67, 866 A.2d at 945. In other words, business records are not included within the enumerated designations of "testimonial statements" outlined by the Supreme Court in Crawford that require the unavailability of the witness and prior opportunity for cross-examination for admission. See Crawford, 541 U.S. at 68, 124 S.Ct. at 1374 (footnote omitted). We shall discuss this holding infra.
[7] Crawford's wife stated that she did not see a weapon in the victim's hands before Crawford stabbed the victim. Crawford, 541 U.S. at 39-40, 124 S.Ct. at 1357.
[8] Washington's marital privilege, at the time Crawford was decided, was contained in Wash. Rev.Code § 5.60.060(1) (1994), and generally prevents a spouse from testifying without the other spouse's consent. See Md. Code (1974, 2002 Repl.Vol. & 2004 Supp.) § 9-106 of the Courts and Judicial Proceedings Article.
[9] Section 11-304 is known as the "tender years" statute.
[10] The court's contention in Crager that the reference to the business records exception in Crawford was purely dictum is not universally adopted, and we do not share that court's view as to the residual value of the Supreme Court's pronouncements. We note that, while not essential to the issue decided in Crawford, Justice Scalia's discussion of the business records exception in the context of the Confrontation Clause offers us guidance in the instant case. "Dicta of the United States Supreme Court should be very persuasive." Fouts v. Maryland Cas. Co., 30 F.2d 357, 359 (4th Cir.1929). See also Wright v. Morris, 111 F.3d 414, 419 (6th Cir.1997) (noting that dicta is "instructive of the Supreme Court's views and cannot be dismissed out of hand ... [w]here there is no clear precedent to the contrary").
[11] We note that the medical examiner in Lackey was clearly unavailable because he was deceased at the time of the trial. In the instant case, the issue of unavailability was never determined. In a generic sense, the witness was unavailable because he was no longer employed by the Medical Examiner's office and resided in California. He was not "unavailable" as that term is defined by Maryland Rule 5-804, or clearly beyond the court's jurisdiction. See Md.Code (1974, 2002 Repl.Vol.) § 9-303(a) of the Courts and Judicial Proceedings Article (noting the procedure for subpoenaing witnesses located outside of Maryland). As we shall explain infra, the unavailability of the medical examiner is not dispositive in determining whether nontestimonial hearsay evidence is admissible.
[12] Md.Code (1984, 2004 Repl.Vol.) § 10-611(g) of the State Government Article defines a "public record" as:
(g) Public record. (1) "Public record" means the original or any copy of any documentary material that:
(i) is made by a unit or instrumentality of the State government or of a political subdivision or received by the unit or instrumentality in connection with the transaction of public business; and
(ii) is in any form, including:
1. a card;
2. a computerized record;
3. correspondence;
4. a drawing;
5. film or microfilm;
6. a form;
7. a map;
8. a photograph or photostat;
9. a recording; or
10. a tape.
[13] Maryland Rule 5-803(b) was derived from Federal Rule 803.
[14] Section 10-204 provides:
(a) Admissibility of copies. A copy of a public record, book, paper, or proceeding of any agency of the government of the United States, the District of Columbia, any territory or possession of the United States, or of any state or of any of its political subdivisions or of an agency of any political subdivision shall be received in evidence in any court if certified as a true copy by the custodian of the record, book, paper, or proceeding, and if otherwise admissible.
(b) Provision of copies. Except as otherwise provided by law, a custodian of a public record in the State or other person authorized to make a certification under this section shall, upon request, provide a certified copy of the public record to a party to a judicial proceeding or the party's attorney.
(c) Certification. A certification under this section shall include:
(1) The signature and title of the custodian or other person authorized to make the certification;
(2) The official seal, if any, of the office; and
(3) A statement certifying that the copy is a true copy of the public record.
(d) Fee. A custodian or other person authorized to make a certification under this section may charge a reasonable fee for providing a certified copy of a public record in accordance with this section.
[15] In applying the public records exception in Ellsworth we differentiated between "fact" and "opinion,"noting:
The line between "fact" and "opinion" is often difficult to draw. An investigating body may hear diametrically opposed testimony on the question of whether one person or another struck the first blow, and proceed to decide the issue as a finding of "fact." That determination necessarily has a judgmental quality, and differs, for example, from a finding of fact that a certain number of persons suffered burns from ignition of clothing fabric during a given period. Conclusions found in reports need not be judgmental.... [A]ttaching labels of "fact" or "opinion" or "conclusion" will not necessarily resolve the issue, and careful attention must be given to the true nature of the statement and the totality of circumstances bearing on the ultimate issue of reliability. Third level hearsay may possess significant indicia of reliability in one case and be clearly unreliable in another.
* * * *
We agree that the Public Records exception to the hearsay rule appropriately allows the reception of reliable facts, and will be recognized in this state in the form in which it appears at Fed.R.Evid. 803(8). We make clear, however, that the term "factual findings" will be strictly construed and that evaluations or opinions contained in public reports will not be received unless otherwise admissible under this State's law of evidence.
Id. at 609-610, 612, 495 A.2d at 362, 363-64 (footnotes omitted).
[16] Section 5-311(d) defines "record" as:
(d) Evidence. (1) In this subsection, "record":
(i) Means the result of a view or examination of or an autopsy on a body; and
(ii) Does not include a statement of a witness or other individual.
(2) A record of the office of the Chief Medical Examiner or any deputy medical examiner, if made by the medical examiner or by anyone under the medical examiner's direct supervision or control, or a certified transcript of that record, is competent evidence in any court in this State of the matters and facts contained in it.
[17] Section 10-101 provides:
(a) Definition of "business." "Business" includes business, profession, and occupation of every kind.
(b) Admissibility. A writing or record made in the regular course of business as a memorandum or record of an act, transaction, occurrence, or event is admissible to prove the act, transaction, occurrence, or event.
(c) Time of making records. The practice of the business must be to make such written records of its acts at the time they are done or within a reasonable time afterwards.
(d) Lack of knowledge of maker. The lack of personal knowledge of the maker of the written notice may be shown to affect the weight of the evidence but not its admissibility.
(Emphasis added.)
[18] The responsibilities of a medical examiner with deaths that require investigation are outlined in Md.Code (1982, 2005 Repl. Vol.), § 5-309 of the Health General Article, which states in pertinent part:
(a) Deaths to be investigated. (1) A medical examiner shall investigate the death of a human being if the death occurs:
(i) By violence;
(ii) By suicide;
(iii) By casualty;
(iv) Suddenly, if the deceased was in apparent good health or unattended by a physician; or
(v) In any suspicious or unusual manner.
* * * *
(b) Notification of medical examiner. If a medical examiner's case occurs, the police or sheriff immediately shall notify the medical examiner and State's Attorney for the county where the body is found and give the known facts concerning the time, place, manner, and circumstances of the death.
(c) Investigation by a medical examiner. Immediately on notification that a medical examiner's case has occurred, the medical examiner or an investigator of the medical examiner shall go to and take charge of the body. The medical examiner or the investigator shall investigate fully the essential facts concerning the medical cause of death and, before leaving the premises, reduce these facts and the names and addresses of witnesses to writing, which shall be filed in the medical examiner's office.
(d) Evidence. The medical examiner or the investigator shall take possession of and deliver to the State's Attorney or the State's Attorney's designee any object or article that, in the opinion of the medical examiner or the investigator, may be useful in establishing the cause of death.
The person who performs the autopsy must "prepare detailed written findings during the progress of the autopsy" that are required to be "filed in the office of the medical examiner for the county where the death occurred[, with t]he original copy of the findings and conclusions" to be filed in the Chief Medical Examiner's office. Md.Code (1982, 2005 Repl.Vol.), § 5-310(d)(1) of the Health General Article. The duties of the Chief Medical Examiner in regard to records is detailed in Md.Code (1982, 2005 Repl.Vol.), § 5-311 of the Health General Article, which provides in part:
(a) Content. (1) The Chief Medical Examiner and, as to their respective counties, each of the deputy medical examiners shall keep complete records on each medical examiner's case.
(2) The records shall be indexed properly and include:
(i) The name, if known, of the deceased;
(ii) The place where the body was found;
(iii) The date, cause, and manner of death; and
(iv) All other available information about the death.
(b) Report of medical examiner and autopsy. The original report of the medical examiner who investigates a medical examiner's case and the findings and conclusions of any autopsy shall be attached to the record of the medical examiner's case.
(c) Delivery to the State's Attorney. The Chief Medical Examiner or, if the Chief Medical Examiner is absent or cannot act, the Deputy Chief Medical Examiner or an assistant medical examiner, and each deputy medical examiner promptly shall deliver to the State's Attorney for the county where the body was found a copy of each record that relates to a death for which the medical examiner considers further investigation advisable. A State's Attorney may obtain from the office of a medical examiner a copy of any record or other information that the State's Attorney considers necessary.
(d) Evidence. (1) In this subsection, "record":
(i) Means the result of a view or examination of or an autopsy on a body; and
(ii) Does not include a statement of a witness or other individual.
(2) A record of the office of the Chief Medical Examiner or any deputy medical examiner, if made by the medical examiner or by anyone under the medical examiner's direct supervision or control, or a certified transcript of that record, is competent evidence in any court in this State of the matters and facts contained in it.
[19] We also distinguish Snowden from the instant case on the grounds that the out-of-court statements in Snowden, accusatory statements from the victims alleging sexual abuse by the defendant, clearly fit within one of the enumerated categories of testimonial statements in Crawford.
[20] Petitioner also objects to Dr. Ripple's consideration of Dr. Pestaner's handwritten notes with regard to an observation of "greenish discoloration" on Ms. Ebberts's abdomen, a decompositional change that can aid in determining the time of death of a victim. While Dr. Pestaner noted that he observed greenish discoloration on Ms. Ebberts's abdomen, he did not include this information in the autopsy report. As we state in part II of this opinion, we find no error in Dr. Ripple's consideration of Dr. Pestaner's notes, which would include any notes that refer to "greenish discoloration" of Ms. Ebberts's abdomen. Consideration of the entire medical examiner's file on a particular victim, including the notes, is a common practice among medical examiners, and medical experts, in rendering an expert opinion as to cause of death. Dr. Ripple testified such consideration was the standard practice, and petitioner has not contradicted that statement.
Insofar as Dr. Pestaner's notes would have required Dr. Pestaner to be present for cross-examination, we disagree. Petitioner has failed to show the significance of the omission of this fact from the autopsy report.
[21] The intermediate appellate court noted the following three sections of the autopsy report as "illustrative of the medical examiner's findings of the condition of the deceased which were objectively ascertained, generally reliable, and normally undisputed."
HEAD: (CENTRAL NERVOUS SYSTEM)
The scalp is reflected. The calvarium of the skull was removed. The dura mater and falx cerebri were intact. There was no epidural or subdural hemorrhage present. The leptomeninges were thin and delicate. The cerebral hemispheres were symmetrical and congested. These structures at the base of the brain, including cranial nerves and blood vessels, were intact. Coronal sections through the cerebral hemispheres revealed no lesions. Transverse sections through the brainstem and cerebellum were unremarkable. The brain weighed 1320 grams.
CARDIOVASCULAR SYSTEM:
The pericardial surfaces were smooth, [g]listening and unremarkable; the pericardial sac was free of significant fluid and adhesions. The coronary arteries arose normally, followed to the usual distribution and had atherosclerosis as follows: left anterior descending artery and left circumflex artery with 10-30% stenosis and the right coronary artery had 50-60% stenosis. The chambers and valves exhibited the usual size position relationship and were unremarkable. The left ventricular free wall was 1.6 cm in thickness. The myocardium was dark red-brown, firm and unremarkable; the atrium and ventricular septa were intact. The aorta and its major branches arose normally, followed the usual course, and had marked atherosclerosis. The venae cavae and their major tributaries returned to the heart in the usual distribution and were free of thrombi. The heart weighed 350 grams.
RESPIRATORY SYSTEM:
The upper airway was clear of debris and foreign material; the mucosal surfaces were smooth, had scattered erythema with yellow mucus in branching airways. The pleural surfaces had posterior adhesions with scattered bullae that were up to 5 cm. The pulmonary parenchyma was red-purple, exuding slight to moderate amounts of frothy edema; the right middle lobe was focally firm and had dark discoloration. The pulmonary arteries were normally developed, patent and without thrombus or embolus. The right lung weighed 610 grams; the left 490 grams.
Rollins, 161 Md.App. at 79-80 n. 12, 866 A.2d at 952-53 n. 12.
[22] In Ward, the State called an expert witness to rebut expert testimony presented by Ward that he suffered from Post Traumatic Stress Syndrome and was legally insane at the time he shot the victim to death. Ward, 76 Md. App. at 657, 547 A.2d at 1112. The expert doctor was a part of a multi-disciplinary team that consisted of additional psychiatrists, psychologists, one social worker, one occupational therapist, and one nurse. Id. Each psychiatrist and psychologist diagnosed Ward's mental state independently and the team met and voted on Ward's official diagnosis. Id. at 657, 547 A.2d at 1112-13. Over objection, the expert witness testified that the vote on Ward's condition was unanimous, and Ward complained that the doctor has effectively testified, not only to his own diagnosis, but also to the diagnoses of the other psychiatrists and psychologists on the team who were not called to testify at trial. Id. at 657, 547 A.2d at 1113.
[23] Petitioner claims that he was denied the opportunity to question Dr. Pestaner as to the impact that the facsimile transmission had on his determination of cause of death. Any such examination, at best, would have affected only the weight of the evidence and not the admissibility of the autopsy report itself. Because Dr. Pestatner's conclusions as to smothering and cause and manner of death were redacted from the report, any alleged influence upon Dr. Pestaner to conclude that Ms. Ebberts was smothered was no longer an issue in the case.
Sergeant Brady sent the facsimile before Dr. Pestaner completed his autopsy findings. The fax stated: "Joe, please review. This guy is too dangerous to leave out. We are ... getting the murder warrant for him, without cause of death."
The record of the pre-trial hearing concerning the communications between Sgt. Brady and Dr. Pestaner shows that defense counsel also had corresponded with Dr. Pestaner, at least twice prior to trial. In addition, defense counsel conceded during his examination of Dr. Ripple that he had talked with Dr. Pestaner about the case prior to the motions hearing. On October 20, according to notations contained in the activity log portion of the medical examiner's files, Dr. Pestaner indicated on the death certificate that the cause of death was pending completion of the autopsy. On October 22, Sgt. Brady sent Dr. Pestaner the fax transmission indicating that she planned to charge Rollins with murder without a finding as to cause of death. There was testimony that Dr. Pestaner was ready to officially report his findings as to cause of death as of October 22; however he waited to report those findings pending further discussions with the detectives involved in the case. Finally, on October 26, Sgt. Brady asked Dr. Pestaner to wait until Monday to officially amend the death certificate and release the cause of death.
The motions judge was aware of this background information surrounding the official reporting of the cause of death. He evaluated the report carefully and redacted from the autopsy report those conclusions, evaluations, or opinions that were testimonial in nature. The parties agreed that those redactions did in fact occur. Ordinarily, if the trial judge concludes that the "source of information or the method or circumstances of the preparation of the [autopsy] report indicate[s] that the information in the report lacked trustworthiness[,]" the court may refuse to admit the autopsy report into evidence. Rule 5-803(6). In this case, no such finding was made and the trial judge did not err in admitting the redacted report into evidence. As to the Confrontation Clause analysis, Rollins makes no specific contention that the communications between Sgt. Brady and Dr. Pestaner were either testimonial or hearsay. See Marquardt v. State, 164 Md.App. 95, 882 A.2d 900 (2005) (noting that for Confrontation Clause anaylsis, "if ... [the statement] is nontestimonial it need only conform to Maryland's rules regarding hearsay").
Furthermore, pursuant to Crawford, where utterances are not being offered for their truth then they are not testimonial evidence in any sense and the admission of those utterances do not implicate the Confrontation Clause. See Crawford, 541 U.S. at 51, 124 S.Ct. at 1364. Thus, Roberts is still good law where testimonial statements are not involved. Crawford v. Washington, 541 U.S. at 55-56, 124 S.Ct. at 1366-67. In the instant case, neither the facsimile transmission from Sgt. Brady, nor the evidence of conversations between Dr. Pestaner and the detectives were offered for their truth. Instead, both were offered to show that the police influenced Dr. Pestaner's ultimate determination of Ms. Ebberts's cause of death. Consequently, per Crawford, both communications were neither testimonial evidence nor hearsay and did not implicate the Confrontation Clause.
Finally, during the investigation of a suspicious death, we do not endorse any communication between the police and the Medical Examiner's Office that exceeds the boundaries established by law. We can only base our review of the nature of the facsimile transmission sent in the instant case on what is contained in the record, and we note that neither party subpoenaed either Dr. Pestaner or Sgt. Brady. We cannot find any evidence, beyond mere suggestion, that there was inappropriate contact between Sgt. Brady and Dr. Pestaner. The facsimile alone does not amount to substantive evidence of any inappropriate behavior. Both Maryland common and statutory law permit a medical examiner to consider information obtained from detectives as a result of the investigation of a suspicious death and the law permits communication between the offices.
[24] Petitioner also objected to Dr. Pestaner's indication of a hemorrhage on Mrs. Ebberts's gum line. With regard to the hemorrhages, petitioner notes that Dr. Pestaner did not photograph or diagram the hemorrhages. We fail to see the import of the amount of documentation Dr. Pestaner employed in noting this injury. Dr. Pestaner described the location of the hemorrhage and took microscopic samples of tissue from the hemorrhage. There was no evidence in the record that this practice was uncommon or suspect.
[25] Dr. Ripple was asked by the trial judge if the cloudiness of the corneae was something that she could personally observe, and Dr. Ripple answered that she could.
[26] Medical examiners are required to record the date, cause and manner of death of an individual by Md.Code (1982, 2005 Repl.Vol.), § 5-311(a)(2)(iii) of the Health General Article. See
[27] Bowers was convicted of the first-degree premeditated murder of Monica McNamara. Bowers, 298 Md. at 120-21, 468 A.2d at 104. Bowers gave the Maryland State Police a statement in which he admitted to having sexual intercourse with the victim, but claimed that it was his accomplice who strangled her. Id. at 122, 468 A.2d at 105. Among other things, Bowers argued that his constitutional right to confront the witnesses against him was violated by the admission of the autopsy report, unaccompanied by the testimony of the medical examiner who prepared it. Id. at 136, 468 A.2d at 112.
We concluded that the admission of the report did not violate Bowers's constitutional rights. In support of our conclusion, we referred to the decision of the Court of Special Appeals in Grover v. State, 41 Md.App. 705, 398 A.2d 528 (1979). In Grover, the State introduced into evidence an autopsy report that contained a statement by a doctor who did not testify at trial. The Court of Special Appeals in Grover discounted the defendant's use of Gregory v. State, 40 Md.App. 297, 391 A.2d 437 (1978), for the premise that the introduction of a document prepared in whole or in part by a party not present to testify in court violated Grover's Sixth Amendment right to confrontation. The documents at issue in Gregory were various medical reports in which Gregory's mental capacity was evaluated. Due to the frequent differences of opinion in the field of forensic psychiatry, the Court of Special Appeals held that the opportunity to cross-examine a witness giving an opinion in that field would be very important. Grover, 41 Md.App. at 710, 398 A.2d at 531. Both this Court in Bowers, and the Court of Special Appeals in Grover, factually distinguished each case on the basis that the submitted autopsy reports contained only "findings as to the physical condition of the victim" and not opinions, and thus the admission of the reports without the testimony of their respective authors was permissible. Bowers, 298 Md. at 137, 468 A.2d at 112; Grover, 41 Md.App. at 710-11, 398 A.2d at 531.
[28] The following occurred during the period of questioning at issue:
[THE STATE]: Are you able to say to a reasonable degree of medical probability or certainty as to the cause of death of Irene Ebberts?
[DEFENSE COUNSEL]: Objection.
[THE COURT]: Overruled.
[DR. RIPPLE]: To a reasonable degree of medical certainty Irene Ebberts died of asphyxia during the robbery and the physical findings indicate smothering.
[THE STATE]: Now, can you explain I know you stated all the things upon which you base your opinion. Can you explain those and then how they relate to the expression of your opinion?
[DEFENSE COUNSEL]: Objection.
[29] The fact that Dr. Smialek had performed the autopsy on the victim in Sippio was not the sole reason for our decision that the subject matter that Dr. Smialek testified about was appropriate. We noted Dr. Smialek's testimony concerning his knowledge of Sippio's statement to police that he had shot the victim, taken together with the investigation, allowed him to reach the conclusion that the victim's death was a homicide. Sippio, 350 Md. at 650-51, 714 A.2d at 873.
[30] We decline to follow those cases cited by petitioner in support of his argument that Dr. Ripple impermissibly resolved questions of fact through her testimony. Two cases that petitioner cites, State v. Vining, 645 A.2d 20 (Me.1994) and Maxwell v. State, 262 Ga. 73, 414 S.E.2d 470 (1992), are distinguishable from the present case. In both Vining and Maxwell, the medical examiners based their opinions on the respective causes of death of the victims solely on information given to them by police detectives. See Maxwell, 414 S.E.2d at 473-74 (citations omitted), State v. Vining, 645 A.2d at 20-21 (footnote and citations omitted). In the instant case, Dr. Ripple clearly testified that she based her opinion on the information gathered from police in the process of the medical examiner's investigation in conjunction with the findings at the scene, the autopsy report and Ms. Ebberts's medical records.
[31] With regard to the statement contained in the Baltimore County Police Department's Investigative Correspondence form regarding a "nephew," it is not clear to whom this statement is referring. It could be concluded that the "nephew" referred to in the statement is Ms. Dehne's nephew, Tony Spence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1536899/ | IN THE MATTER OF THE PETITION OF DELTA ETA CORPORATION FOR A WRIT OF MANDAMUS
No. 409, 2009
Supreme Court of Delaware.
Submitted: August 6, 2009
Decided: August 28, 2009
Before STEELE, Chief Justice, HOLLAND and RIDGELY, Justices.
ORDER
Myron T. Steele, Chief Justice.
This 28th day of August 2009, it appears to the Court that: (1) The petitioner, Delta Eta Corporation, seeks to invoke this Court's original jurisdiction to issue an extraordinary writ of mandamus[1] to compel the Superior Court to render a decision on the issue of pre-judgment interest in connection with its decision granting summary judgment in favor of the University of Delaware in Delta Eta Corporation v. University of Delaware, C.A. No. 07C-04-580 and, thereby, enter an appealable judgment. The University of Delaware has filed an answer requesting that Delta Eta's petition be dismissed. We find that Delta Eta's petition manifestly fails to invoke the original jurisdiction of this Court. Accordingly, the petition must be dismissed.
(2) The Superior Court docket reflects that, on July 29, 2009, at the request of the petitioner, the Superior Court held an office conference to address the issues of pre-judgment interest and whether its decision granting summary judgment in favor of the University of Delaware may properly be appealed to this Court. The Superior Court docket further reflects that the parties filed their post-office conference submissions on August 7 and August 12, 2009, respectively, but that the Superior Court has not yet rendered its decision.
(3) A writ of mandamus is an extraordinary remedy issued by this Court to compel a trial court to perform a duty.[2] As a condition precedent to the issuance of the writ, a petitioner must demonstrate that a) he has a clear right to the performance of a duty; b) no other adequate remedy is available; and c) the trial court has arbitrarily failed or refused to perform its duty.[3]
(4) There is no basis for the issuance of a writ of mandamus in this case. The record reflects that the Superior Court has taken steps to resolve the issue of pre-judgment interest, as Delta Eta wishes it to do. As such, Delta Eta's petition is moot. While the Superior Court has not yet rendered its decision in the matter, this Court will not issue a writ of mandamus to dictate control of the Superior Court's docket.[4]
NOW, THEREFORE, IT IS ORDERED that the petition for a writ of mandamus is DISMISSED.
NOTES
[1] Del. Const. art. IV, §11(6); Supr. Ct. R. 43.
[2] In re Bordley, 545 A.2d 619, 620 (Del. 1988).
[3] Id.
[4] Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601812/ | 1 So.3d 177 (2008)
DOBARGANES
v.
McNEIL.
No. 1D06-2206.
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/1602461/ | 361 F.Supp. 1320 (1973)
Willard La Vern PEALO et al., Plaintiffs,
v.
FARMERS HOME ADMINISTRATION et al., Defendants.
Civ. A. No. 1028-73.
United States District Court, District of Columbia.
July 31, 1973.
*1321 Lee P. Reno, Florence Wagman Roisman, Anthony Z. Roisman, Washington, D. C., for plaintiffs.
Harold H. Titus, Jr., U. S. Atty., Arnold T. Aikens, Thomas G. Corcoran, Jr., Asst. U. S. Attys., for defendants.
MEMORANDUM OPINION
CHARLES R. RICHEY, District Judge.
I. INTRODUCTION AND BACKGROUND
Plaintiffs herein are three married couples who brought suit against the Farmers Home Administration of the United States Department of Agriculture, the Secretary of Agriculture, various officials of the Farmers Home Administration (FmHA), and Roy Ash, as Director of the Office of Management and Budget (OMB), seeking a Court Order requiring Defendants to implement the Farmers Home Administration's interest credit loan program effectively and in good faith so as to achieve the national housing goals established by Congress. Plaintiffs sue on their own behalf and on behalf of all other intended beneficiaries of the interest credit loan programs. A hearing was had on Plaintiffs' Motion for Preliminary Injunction, at which time it was agreed by all parties that the hearing could be treated as a hearing on the merits of Plaintiffs' claims.[1] The parties also agreed that there is no genuine issue of material fact involved, and the Court will therefore treat Plaintiffs' Motion for Preliminary Injunction as a Motion for Summary Judgment. For the following reasons, the Court is of the opinion that Plaintiffs' Motion for Summary Judgment should be granted.
Briefly, the FmHA's interest credit loan program is part of a statutory scheme set forth in Title V of the Housing Act of 1949, as amended, which was devised to make housing in rural areas available to those whose incomes would otherwise be inadequate to secure decent housing. In Title V of the Housing Act of 1949,[2] Congress authorized the Secretary of Agriculture, through FmHA, to extend financial assistance to improve living conditions on farms. The Act created, inter alia, the Section 502 program, 42 U.S.C. § 1472, which authorized the FmHA to make direct loans at not more than four per cent interest per year, amortized for 33 years, to owners of adequate farms who were unable to obtain credit on terms which they could reasonably fulfill. In the 1960s, the FmHA rural housing programs were expanded, and eligibility for Section 502 was broadened to include any low- or moderate-income person who desired to live in a rural area, was unable to otherwise secure decent housing, and could reasonably be expected to repay the loan. The Senior Citizens Act of 1962 added Section 515 to Title V of the Housing Act of 1949, 42 U.S.C. § 1485, and authorized FmHA to make direct loans to nonprofit and consumer cooperatives at below-market interest rates to provide rental housing for elderly persons and families of low and moderate income. Section 515 has been amended several times so that now housing built under this section can be rented by any low- or moderate-income person or family.
The Housing and Urban Development Act of 1968 added Section 521 to Title V of the 1949 Act, 42 U.S.C. § 1490a, which has come to be known as the "interest *1322 credit program," and which is the subject of this action. Section 521 permits the Secretary of Agriculture to set interest rates on loans made under Sections 502 and 515 as low as one per cent in order to serve lower-income borrowers and occupants. Although a loan under this section formally bears the maximum interest rate, interest payments for lower-income borrowers are "credited," i. e., subsidized, in some amount which reflects the difference between what the borrower would pay at the maximum rate and what the borrower actually pays at the lower effective rate.
Congress has put no limit on the amount or value of loans under Sections 502 and 515. FmHA makes its loans out of the Rural Housing Insurance Fund, which was established under the Housing and Urban Development Act of 1965 by adding Section 517 to Title V, 42 U.S.C. § 1471, and the Fund's notes are sold to investors. Each year, Congress then appropriates an amount sufficient to reimburse the Insurance Fund for the actual amounts by which interest payments, made from the Fund each year to its investors, exceed the interest due from individual and organizational borrowers.[3]
On January 8, 1973, the FmHA announced an immediate cessation of interest credit loans under Sections 502 and 515 as part of a "Government-wide program" which had been announced by the Secretary of Housing and Urban Development and which placed an 18-month moratorium on the Federal housing programs administered by HUD. The FmHA loan programs were to continue, but without interest credit.
All of the Plaintiffs have applied for Section 502 loans. Two of them have been declared eligible for such loans. None of them will be able to receive interest credit loans by virtue of the FmHA's action on January 8, 1973. Without interest credit loans, none of the Plaintiffs will be able to secure decent housing.
II. THE CLASS ACTION ISSUE
A. The Court Will Certify This Matter As A Class Action Pursuant To Rule 23 Of The Federal Rules Of Civil Procedure.
The Court is of the opinion that this matter is appropriate for class action treatment, the class of plaintiffs consisting of all those who are or may be eligible for interest credit loans under Sections 502, 515 and 521 of the Housing Act of 1949, as amended. The prerequisites of Rule 23(a) of the Federal Rules of Civil Procedure are met, and even though the named Plaintiffs, as class representatives, have applied only for Section 502 loans, the legal issues are the same whether they had applied for Section 502 or 515 loans, and the Court cannot discern any conflicting interests between these Plaintiffs and members of the class who have applied for Section 515 loans. The class is certifiable under either Rule 23(b)(1)(B) or 23(b)(2), in that adjudication of the claims of the named Plaintiffs would as a practical matter be dispositive of the interests of other class members not parties and the Defendants have acted or refused to act on grounds generally applicable to the class.
III. ISSUES
The issues in this case are simply whether the Defendants have the discretion and authority to suspend these interest credit loan programs, and whether their actions were consistent with their duties under Article II of the Constitution.
IV. DISCUSSION
A. The Relevant Statutes Do Not Vest In The Defendants The Discretion And Authority To Suspend The Rural Housing Interest Credit Programs, And Defendants' Actions In Doing So Violate Their Duties Under Article II Of The Constitution.
*1323 The arguments advanced by both sides to this litigation are essentially similar to the arguments of the parties in the case of Commonwealth of Pennsylvania v. Lynn,[4] and the Court is of the opinion that the principles set forth in its Opinion in the latter case are similarly applicable here. This is so even though the program under consideration in the instant case is much narrower than those under consideration in Lynn. Both the HUD programs involved in the Lynn case and the Farmers Home Administration programs involved here are directed to the same goals and serve the same elements of the population though in different sections of the country. Those goals are the "realization as soon as possible of . . . a decent home and a suitable living environment for every American family", to be accomplished in part through the construction and rehabilitation, by 1978, of six million housing units for low and moderate income families.[5]
Section 521 of Title V, 42 U.S.C. § 1490a, provides in pertinent part:
"(a) Notwithstanding the provisions of sections 1472, 1487(a) and 1485 of this title, loans to persons of low or moderate income under section 1472 or 1487(a)(1) of this title, and loans under section 1485 of this title to provide rental or cooperative housing and related facilities for persons and families of low or moderate income or elderly persons and elderly families, shall bear interest at a rate prescribed by the Secretary[6] . . .: Provided, That such a loan may be made only when the Secretary determines that the needs of the applicant for necessary housing cannot be met with financial assistance from other sources . . . ."
Defendants contend that this Section only avoids the requirement of 42 U.S.C. § 1472 "that the applicant has the ability to repay in full the sum to be loaned with interest . . ."; that the section does not command that there shall be "interest credit" loans; and that the Secretary of Agriculture is enabled to decide, within certain limits, what the interest rates will be on loans under Sections 1472, 1487(a)(1), and 1485. Moreover, Defendants further argue that on its face Title V gives the Secretary total discretion to spend money in the Rural Housing Insurance Fund on any of the programs authorized or not to spend it at all for a particular program.
The Court does not believe that once the Secretary has exercised his discretion and determined that "the needs of the applicant for necessary housing cannot be met with financial assistance from other sources," he may then disregard this finding and charge the maximum amount of interest allowable on such housing loans, thus precluding loan applicants from being able to obtain decent housing. As amply demonstrated by two of the Plaintiffs herein, qualification for a Section 502 (or a 515) loan is a cruel joke if decent housing cannot be obtained in absence of interest credit for the loan. The interest credit program cannot be viewed in a vacuum. It forms an integral part of the rural housing program and the federal housing program in general. As such its suspension affects the functioning of the program as a whole. "In fact, it is in derogation of it."[7]
The Court is cognizant that Section 521 may be susceptible of varying interpretations concerning the mandatory nature of the language employed therein. *1324 In interpreting the statute, the Court has therefore attempted to ascertain the intent and mandate of Congress consonant with its overall policies. In this regard, it is instructive to note a portion of an opinion by former Assistant Attorney General William H. Rehnquist, now a Justice of the Supreme Court. He stated:[8]
"[On] the question of trying to find a mandatory intent on the part of Congress, it is not a question of looking for the word `shall' as opposed to `may'. Our office, in the memo that was published in the Congressional Record in December, 1969, concluded that in providing for certain formula grants for schools . . . Congress had indicated that these were to be spent, not necessarily because it said they shall be spent, but just from taking the overall language of the authorization bill, the enabling statute if there was one [and] the particular appropriations language, and construing them together to try to find on a reasonable basis what intent Congress manifested."
In employing this general methodology, the Court notes that Section 2 of the Housing Act of 1949, 42 U.S.C. § 1441, provides that Federal agencies "shall exercise their powers, functions, or duties under this or any other law consistently with the national housing policy . . . ." When Section 521 is construed in light of this mandate, the only "reasonable basis" is that the interest credit program was intended by Congress to be carried out, and that the Defendants have frustrated that intent.
The interest credit program added yet another means by which the national objective of providing "a decent home and a suitable living environment for every American family" could be realized. Each year, Congress has recognized the importance of the program by appropriating the funds required by Section 521 expenditures. Defendants have chosen to disregard that evidence of Congressional intent and have ignored the stated goal of Congressa goal which is tremendously important not only to those who cannot afford non-subsidized housing, but a goal which is of importance to every citizen concerned with the welfare of our country. Defendants through their actions have placed a blockade in the road to decent housing for all. These actions are in contravention of Defendants' statutory authority and their authority under the Constitution. It is the Court's duty and function to insure that the blockade is removed so that forward movement may continue.
V. CONCLUSION
It should be made clear that while the Court is requiring the Defendants to implement the Section 521 interest credit loan program, the Secretary must determine how that program shall operate in a particular case, or whether any relief at all is warranted in a particular claim for interest credit. Those are matters within the discretion of the Secretary, to be determined according to the found needs of individual applicants.
The Court will enter an Order granting Summary Judgment for the Plaintiffs and directing the Defendants to implement the interest credit loan program pursuant to Section 521.
NOTES
[1] Rule 65 of the Federal Rules of Civil Procedure.
[2] 42 U.S.C. § 1471 et seq.
[3] 42 U.S.C. § 1490a(c).
[4] 362 F.Supp. 1363, decided July 23, 1973.
[5] 42 U.S.C. § 1441a.
[6] The rate the Secretary may prescribe is limited by the "current average market yield on outstanding marketable obligations of United States" and one per centum per annum.
[7] State Highway Commission of Missouri v. Volpe, 479 F.2d 1099 (C.A.8, 1973), reprinted at 119 Cong.Rec., S 7568, S 7570 (April 17, 1973).
[8] Memorandum Re Presidential Authority to Impound Funds Appropriated for Assistance to Federally Impacted Schools (Dec. 1, 1969), reprinted in Hearings on Executive Impoundment of Appropriated Funds Before the Subcommittee on Separation of Powers of the Senate Judiciary Committee, 92d Cong., 1st Sess., at 234 (1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4210597/ | Court of Appeals
of the State of Georgia
ATLANTA, September 27, 2017
The Court of Appeals hereby passes the following order
A18D0082. DUNWOODY PLAZA PARTNERS, LLC et al. v. JAY MARKOWITZ.
Upon consideration of the Application for Discretionary Appeal, it is ordered that it be
hereby GRANTED. The Appellant may file a Notice of Appeal within 10 days of the date of
this order. The Clerk of State Court is directed to include a copy of this order in the record
transmitted to the Court of Appeals.
LC NUMBERS:
16A61705
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, September 27, 2017.
I certify that the above is a true extract from the minutes
of the Court of Appeals of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk. | 01-03-2023 | 10-11-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1551499/ | 170 B.R. 818 (1994)
In re OPERATION OPEN CITY, INC., Debtor.
The OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF OPERATION OPEN CITY, Plaintiff,
v.
The NEW YORK STATE DEPARTMENT OF STATE, Defendant.
No. 93 Civ. 0816 (PKL).
United States District Court, S.D. New York.
August 22, 1994.
*819 *820 Winthrop Stimson Putnam & Roberts (Glenn E. Siegel, Edward Flanders, Matthew J. Borger, of counsel), New York City, for plaintiff-appellee.
Robert Abrams, Atty. Gen. of State of New York (Frederic L. Lieberman, David S. Cook, of counsel), New York City, for defendant-appellant.
OPINION AND ORDER
LEISURE, District Judge.
This is an appeal from an order issued on December 14, 1992, as amended December 30, 1992, by the United States Bankruptcy Court for the Southern District of New York. Pursuant to the order, a motion to dismiss based on sovereign immunity made by defendant New York State Department of State ("the State") was denied, and plaintiff Operation Open City, Inc.'s motion for summary judgment was granted. Defendant was ordered to turnover certain disputed funds, previously offset by defendant, to debtor Operation Open City, pursuant to 11 U.S.C. § 542(a). Defendant now appeals the order.
BACKGROUND
Debtor Operation Open City, Inc. is a non profit organization which rehabilitates residential buildings in New York City. The debtor entered into an agreement with defendant on February 8, 1988, by which the debtor agreed to provide weatherization services to eligible apartment buildings. See Official Committee of Unsecured Creditors of Operation Open City, Inc. v. New York Dep't of State, 148 B.R. 184, 186 (Bankr.S.D.N.Y. 1992) (citing Contract 88 DOE/EXXON C007205 ("the contract")). The contract included a setoff provision by which the State could setoff amounts owed to the debtor under the contract against any amounts owed by the debtor under any other agreement. See id.
On September 19, 1989, an involuntary bankruptcy proceeding was filed against the debtor under Chapter 7 of the Bankruptcy Code. On October 27, 1989 (the "Petition date"), the debtor filed a voluntary petition under Chapter 11 of the Bankruptcy Code. Since this date, the debtor has continued to operate its business pursuant to § 1107 and § 1108 of the Bankruptcy Code.
As of the petition date, the State owed approximately $242,210.00 to the debtor. On or about May 16, 1990, the State sent debtor a check for $57,506.00 as "full and final payment." In making this final payment, the State set off $184,704.00 owed the State by the debtor under related contracts. The set-off was made without first seeking from the bankruptcy court relief from the automatic stay provisions which prohibit recovery of property from the debtor's estate without prior permission of the court.
On January 21, 1992, the Official Committee of Unsecured Creditors of Operation *821 Open City, Inc. ("the Committee") initiated an adversary proceeding. The Committee sought a judgment ordering the State to return the money setoff (a) pursuant to § 542(a) of the Bankruptcy Code, which requires a turnover of property of the estate improperly withheld as a setoff; (b) pursuant to § 362 of the Code as damages for willful violation of the automatic stay provisions; (c) pursuant to § 553 of the Code, which requires a mutual debt before a setoff is permissible, and (d) pursuant to Article 3-A of the New York Lien Law, New York Lien Law §§ 70-79-a (McKinney 1992), for conversion of trust funds.
On March 17, 1992, the State moved before the bankruptcy court to dismiss the action, claiming that (1) the suit is barred by the Eleventh Amendment; (2) the suit is barred by the statute of limitations; and (3) the funds are not subject to turnover since they are not property of the debtor's estate.
On April 17, 1992, the Committee cross-moved for summary judgment claiming that (a) the State had waived its immunity pursuant to 11 U.S.C. § 106(a); (b) the statute of limitations had not run under the turnover provisions of the Code; and (c) that the disputed funds are property of the estate subject to recovery by the debtor. On June 16, 1992, the debtor joined the adversary proceeding pursuant to Fed.R.Bankr.P. 7020 and filed its own cross-motion requesting summary judgment and opposing the State's motion to dismiss.
On December 14, 1992, the Bankruptcy Court for the Southern District of New York entered a Memorandum Decision granting plaintiff's motion for summary judgment and denying defendant's motion to dismiss. The court entered an order on December 29, 1992, as amended January 8, 1993, requiring the State to turn over $184,704.00.[1] Also on January 8, 1993, the State filed a notice of appeal.
DISCUSSION
A. Applicable Standard of Review
This Court has jurisdiction to hear this appeal from the order of the Honorable Burton R. Lifland, United States Bankruptcy Judge, Southern District of New York, dated February 1, 1993, pursuant to 28 U.S.C. § 158. The applicable standard of review is provided by Rule 8013 of the Federal Rules of Bankruptcy Procedure, which directs that the bankruptcy court's findings of fact may not be set aside unless they are shown to be clearly erroneous. Fed.R.Bankr.P. 8013; see also In re Manville Forest Products Corp., 896 F.2d 1384, 1388 (2d Cir.1990) ("We will reverse the bankruptcy court only if we are `left with the definite and firm conviction that a mistake has been committed.'") (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948)).
A bankruptcy court's legal conclusions are generally subject to a de novo review by the reviewing court. See In re Maxwell Newspapers, Inc., 981 F.2d 85, 89 (2d Cir.1992) (citations omitted); see also, In re Ionosphere Clubs, 922 F.2d 984, 988-89 (2d Cir.1990), cert. denied sub nom, Air Line Pilots Ass'n, Int'l v. Shugrue, ___ U.S. ___, 112 S. Ct. 50, 116 L. Ed. 2d 28 (1991); In re Fugazy Express, 124 B.R. 426 (S.D.N.Y. 1991) (Grant of summary judgment by bankruptcy court is subject to de novo review in district court), appeal dismissed 982 F.2d 769 (2d Cir.1992).
B. Doctrine of Laches
The State argues that this action is barred by the doctrine of laches. However, as plaintiff has correctly noted, this Court cannot review a doctrine of laches defense where it is raised for the first time on appeal. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S. Ct. 2868, 2877, 49 L. Ed. 2d 826 (1976) ("It is the general rule . . . that a federal appellate court does not consider an issue not passed upon below.") (citing Hormel v. Helvering, 312 U.S. 552, 556, 61 S. Ct. 719, 721, 85 L. Ed. 1037 (1941)); Greene v. United States, 13 F.3d 577, 586 (2d Cir.1994); Camp, Dresser & McKee, Inc. v. Technical Design Assoc., Inc., 937 F.2d 840, 843 (2d Cir.1991) (failure to raise statute of limitations defense at trial *822 level constitutes a waiver and cannot be reviewed on appeal).
Deference to this rule is "essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues . . . [and] in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce." Singleton, 428 U.S. at 120, 96 S. Ct. at 2877 (quoting Hormel, 312 U.S. at 556, 61 S. Ct. at 721). Accordingly, this issue will not be considered by the Court.
C. Waiver of Sovereign Immunity
Defendant also contends that this action is barred by the Eleventh Amendment. The Eleventh Amendment of the Constitution provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. amend XI. However, a federal court may properly exercise jurisdiction (a) where Congress has abrogated a state's immunity or (b) where a state has waived its immunity. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S. Ct. 900, 907, 79 L. Ed. 2d 67 (1984); In re 995 Fifth Ave. Assoc., L.P., 963 F.2d 503 (2d Cir.1992). In order to be valid, Congressional abrogation of immunity must satisfy two requirements. First, Congress' intent to abrogate immunity must be "unmistakably clear." Pennsylvania v. Union Gas Co., 491 U.S. 1, 7, 109 S. Ct. 2273, 2277, 105 L. Ed. 2d 1 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985)). Second, the constitutional provision pursuant to which Congress enacts a statutory scheme allowing for abrogation must confer on Congress the power to override the Eleventh Amendment. See Union Gas, 491 U.S. at 13-23, 109 S. Ct. at 2280-86.
In contrast to an abrogation of immunity, waiver of state immunity is effected not through an act of Congress but rather through an affirmative activity of the state itself. See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 307-09, 110 S. Ct. 1868, 1873-75, 109 L. Ed. 2d 264 (1990). A state's participation in litigation or a state's consent to be sued are both examples of such affirmative activity. See 995 Fifth Ave., 963 F.2d at 507.
Section 106(a) of the Bankruptcy Code, as the plain language of the statute indicates, provides for a limited waiver of state immunity and not an abrogation. See United States v. Nordic Village, Inc., ___ U.S. ___, ___, 112 S. Ct. 1011, 1015, 117 L. Ed. 2d 181 (1992); 995 Fifth Avenue, 963 F.2d at 507; Profilet v. United States (In re Johnston), 163 B.R. 890 (S.D.Fla.1993); In re Gribben, 158 B.R. 920 (S.D.N.Y.1993). Section 106(a) specifies the affirmative activity of a state which will trigger a waiver of its immunity:
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.
11 U.S.C. § 106(a). This statute is enacted pursuant to Congress' power under the Bankruptcy Clause, U.S. Const. art. I, § 8, cl. 4. The fact that the activity constituting a waiver is specified and embodied in a statute does not convert a scheme of waiver into one of abrogation. See 995 Fifth Avenue, 963 F.2d at 507.
Since 11 U.S.C. § 106(a) provides for a waiver of sovereign immunity and not abrogation, the Court must determine whether the State's acts constitute a waiver under § 106(a). See 995 Fifth Avenue, 963 F.2d at 507 (finding § 106(a) provides for waiver not abrogation). The State contends that the language of the provision requires a formal filing of a proof of claim before a sovereign's immunity is deemed waived. This Court disagrees.
Bankruptcy courts have repeatedly held that filing a proof of claim is not necessarily required to trigger a waiver of a state's immunity under § 106(a). See In re Gribben, 158 B.R. 920, 923 (S.D.N.Y.1993) ("the statute provides no support for the proposition *823 that the Government's claim must have been filed as a proof of claim") (citing Sullivan v. Town & Country Home Nursing Services, Inc., 963 F.2d 1146 (9th Cir.1992) (holding that requiring a formal filing of a proof of claim for waiver where government has setoff funds would "vitiate the purpose of section 106(a)")); see also In re Johnston, 163 B.R. at 893 ("if a claim exists, sovereign immunity disappears under § 106(a) and this is probably enough") (emphasis added); Mims v. United States (In re Craftsmen, Inc.), 163 B.R. 88, 92 (Bankr.N.D.Tex.1993) ("mere existence of a government claim permits waiver of immunity pursuant to § 106(a)"); Rakozy v. Diversified Turnkey Construction Co., 145 B.R. 661 (Bankr.D.Idaho 1992) ("no proof of claim is required by the language of section 106(a)").
Despite these authorities, the State insists that a formal proof of claim must be filed in order to trigger a waiver. In advancing its position, the State relies on Hoffman v. Connecticut Dept. of Income Maintenance, 492 U.S. 96, 109 S. Ct. 2818, 106 L. Ed. 2d 76 (1989). In Hoffman, however, the Court was concerned only with the interpretation of § 106(c), and not with sections (a) or (b). The Court mentioned § 106(a) only in so far as it concluded that it did not provide a basis for the petitioner's action. Thus the Court did not have the opportunity to consider whether a state's affirmative act of setting off funds in collection of a debt could constitute a waiver under § 106(a). See Town & Country, 963 F.2d at 1152 n. 2.
The weight of authority supports the conclusion reached by the bankruptcy court that § 106(a) does not require a formal proof of claim, as does the statutory language of § 106(a). Section 106(a) refers only to "claims" while § 106(b) refers to "allowable claims." It is well established that "`[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.'" INS v. Cardoza-Fonesca, 480 U.S. 421, 432, 107 S. Ct. 1207, 1213, 94 L. Ed. 2d 434 (1987) (quoting Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 300, 78 L. Ed. 2d 17 (1983)). Thus although the word "claim" does not specify what actions will trigger a waiver of immunity, the difference in wording between sections (a) and (b) suggests that waivers under section (a) "do not necessarily require the filing of a formal proof of claim." Town & Country, 963 F.2d at 1150; see also In re Gribben, 158 B.R. at 923.[2]
As the Ninth Circuit found, after a thorough review of the scope of § 106(a), the legislative history of § 106(a) also points to a broader reading of "claim" than the State urges herein. Before the final version of § 106(a) was adopted, the text of the statute read as follows:
(a) A governmental unit that files a proof of claim under section 501 of this title is deemed to have waived sovereign immunity . . .
H.R. 8200, 95th Cong. 1st Sess. 324 (1977); S. 2266, 95th Cong., 2nd Sess. 313 (1978) (emphasis added). However, the language "files a proof of claim" was omitted from the final version. As the Supreme Court has stated, "[w]here Congress includes limiting language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the limitation was not intended." Russello, 464 U.S. at 23-24, 104 S. Ct. at 301; see Town & Country, 963 F.2d at 1151; see also Nachman Corp. v. Pension Ben. Guaranty Corporation, 446 U.S. 359, 392-93, 100 S. Ct. 1723, 1741-42, 64 L. Ed. 2d 354 (1980) ("Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.") Thus the deletion of the language referring to filing a claim is critical, and the most palatable construction of § 106(a) is that Congress intended "claims" be construed broadly enough to include more than just formally *824 filed claims. See Town & Country, 963 F.2d at 1151.[3]
Finally, this Court agrees with the policy considerations raised by the Ninth Circuit in Town & Country. There the court concluded that to hold that a state waives its immunity only by filing a formal proof of claim and not by taking a setoff from the debtor's estate would "vitiate the purpose of section 106(a), which is to prevent a governmental entity from obtaining distribution from the estate without subjecting itself to claims by the debtor arising out of the same transaction or occurrence." Town & Country, 963 F.2d at 1154. The reading of § 106(a) advanced by the State suggests, on the one hand, that by filing a proof of claim, a government waives its immunity but, on the other hand, that by taking a setoff, a government can receive actual payment on this claim yet still retain its immunity. Such a reading would allow a governmental entity to circumvent the authority of a bankruptcy court and help itself to the proceeds of a bankrupt's estate. See Town & Country, 963 F.2d at 1153 ("To hold otherwise would enable the government to achieve through self-help what it could not accomplish through the procedures of the bankruptcy court, i.e., retain its immunity while extracting payment from the estate."); In re Gribben, 158 B.R. at 923. Because this construction would undermine the central role of a bankruptcy court in distributing the assets of the bankrupt's estate, this Court concludes that taking a setoff without first requesting relief from the automatic stay provision of § 362 pursuant to § 553 constitutes a waiver of a state's immunity.
D. The Disputed Funds
The State also endeavors to argue that the monies retained are not property of the debtor's estate and thus their distribution is not a matter within the jurisdiction of this Court. Generally, a bankrupt's estate does not include "property of others which the debtor has some minor interest such as a lien or bare legal title." In re Howard's Appliance Corp., 874 F.2d 88, 93 (2d Cir. 1989) (quoting United States v. Whiting Pools, 462 U.S. 198, 204 n. 8, 103 S. Ct. 2309, 2313 n. 8, 76 L. Ed. 2d 515 (1983)). However, while the funds are not the property of the debtor, the debtor has more than a minor interest in the funds. Pursuant to Article 3-A of the New York Lien Law, these funds constitute funds which are held in constructive trust for the benefit of third parties. It is axiomatic that the distribution of such funds are core functions within the jurisdiction of the bankruptcy court. See In re Johnson, 960 F.2d 396, 402 (4th Cir.1992) (finding distribution of funds held in constructive trust "are intimately tied to the traditional bankruptcy functions and estate, and, therefore, are core matters within the clear jurisdiction of the bankruptcy court"); Georgia Pacific Corp. v. Sigma Service Corp., 712 F.2d 962, 96-68 (5th Cir.1983); In re Rosenshein, 136 B.R. 368 (Bankr.S.D.N.Y. 1992).
Rather than relying on the authority of the bankruptcy court to determine the appropriate distribution of the funds of the bankrupt, the State chose to setoff monies owed to it by the debtor. Generally, it is indisputable that before attempting to declare the right to a setoff under § 553, a creditor must first obtain relief from the *825 automatic stay established by § 362 of the Bankruptcy Code. See Small Business Administration v. Rinehart, 887 F.2d 165, 168 (8th Cir.1989); In re Ionosphere Clubs, Inc., 164 B.R. 839, 843-44 (Bankr.S.D.N.Y.1994); In re Blava In-Line, Inc., 133 B.R. 33, 36-37 (Bankr.S.D.N.Y.1991). By withholding money when making full and final payment to the debtor, by way of the setoff, the State ran afoul of § 362(a)(7) of the Bankruptcy Code.[4]
The State contends that debtor Operation Open City acquiesced in the retention of the funds and thus there was no violation of the automatic stay. This argument is unpersuasive because, in bankruptcy law, "even if a setoff is authorized by the parties, such setoff is expressly forbidden after a debtor files a bankruptcy petition." In re Blava, Inc., 133 B.R. at 37; see also Garver v. Bassford, 753 F.2d 976, 977 (11th Cir.1985) (citing Susquehanna Chemical Corp. v. Producers Bank & Trust Co., 174 F.2d 783, 787 (3d Cir.1949)).
Therefore, because the State violated the automatic stay provision, the setoff was void. See In re Colonial Realty Co., 980 F.2d 125, 137 (2d Cir.1992) (Indeed so central is the § 362 stay to an orderly bankruptcy process that "`actions taken in violation of the stay are void and without effect.'") (quoting 48th Street Steakhouse, Inc., 835 F.2d 427, 431 (2d Cir.1987) (quoting 2 Lawrence P. King, Collier on Bankruptcy § 362.11 (15th ed. 1987))). Thus the bankruptcy court correctly ordered the turnover of the amount improperly setoff by the State.
Finally, the State claims that the ordered turnover constitutes an improper award of damages under 11 U.S.C. § 362(h). The State is correct in concluding that any award of damages under this provision would be inappropriate in this action, because damages under § 362(h) are available only for natural persons. See In re Chateaugay Corp., 920 F.2d 183, 186-87 (2d Cir.1990). However, the ordered turnover was not an award of damages. The ordered turnover was designed to effect a consolidation of the bankrupt's estate. As the amount ordered mirrors the amount impermissibly setoff by the State, there is no evidence in the record that the order was intended as an award of damages. Accordingly, the bankruptcy court's decision is affirmed.
CONCLUSION
For the reasons stated above, the decision of the bankruptcy court is hereby affirmed.
SO ORDERED.
NOTES
[1] After a significant delay, the State turned over the dispute funds in September of 1993.
[2] This interpretation of the word "claim" is consistent with other sections of the code. Section 101(5) of the Bankruptcy Code defines "claim" as a "right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured . . ." 11 U.S.C. § 101(5); see In re Gribben, 158 B.R. at 923.
[3] The State also argues that after the Second Circuit's decision in 995 Fifth Avenue, only a formally filed proof of claim can satisfy the requirements for a waiver under § 106(a). The State's argument hangs exclusively on footnote 1 of that opinion. In footnote 1, the Court opined that it did not believe that Congress's intent would be rendered unclear by the fact that the statute does not mention the filing of a proof of claim, since the only reasonable construction of § 106(a) is that a waiver will arise only if a claim is actually filed. While the Court in 995 Fifth Avenue, alluded to actual filing, the Court never directly confronted the question posed herein, i.e., whether an informal proof of claim could constitute a waiver of immunity. Accordingly, this Court is not constrained by the dicta contained in Footnote 1 of 995 Fifth Avenue, especially in light of the statutory language and legislative history, discussed supra, which support this conclusion, and in light of the fact that this question was specifically addressed by a number of other courts, which have answered the question in the affirmative. See Boldman v. United States (In re Boldman), 148 B.R. 874, 877 (Bankr.C.D.Ill.1993) ("All that is necessary is that the governmental unit possess a claim, not that it assert it in any fashion."); see In re Gribben, 158 B.R. 920 (S.D.N.Y.1993); In re Johnston, 163 B.R. 890 (S.D.Fla.1993).
[4] 11 U.S.C. § 362(a)(7) provides in relevant part:
(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 . . . operates as a stay, applicable to all entities, of
(7) the setoff of any debt owing to the debtor that arose before the commencement of the case under this title [11 U.S.C. §§ 101 et seq.] against any claim against the debtor . . . | 01-03-2023 | 10-30-2013 |
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